$200,000,000
CREDIT AGREEMENT
among
FLORIDA ROCK INDUSTRIES, INC.,
as Borrower,
THE LENDERS PARTIES HERETO
and
FIRST UNION NATIONAL BANK
as Administrative Agent,
and
BANK OF AMERICA, N.A.,
as Syndication Agent,
and
SUNTRUST BANK,
as Documentation Agent,
and
FIRST UNION SECURITIES, INC.
and
BANK OF AMERICA SECURITIES, LLC
Co-Lead Arrangers
Dated as of June 28, 2000
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS . .......... . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Defined Terms. . . . . . . . . . . . . . . . . . . .1
Section 1.2 Other Definitional Provisions. . . . . . . . . . . 27
Section 1.3 Accounting Terms.. . . . . . . . . . . . . . . . . 27
ARTICLE II THE LOANS; AMOUNT AND TERMS.......... . . . . . . . . . . . .28
Section 2.1 Revolving Loans. . . . . . . . . . . . . . . . . . 31
Section 2.2 [Intentionally Omitted]. . . . . . . . . . . . . . 31
Section 2.3 Swingline Loan Subfacility.. . . . . . . . . . . . 31
Section 2.4 Letter of Credit Subfacility.. . . . . . . . . . . 33
Section 2.5 Fees.. . . . . . . . . . . . . . . . . . . . . . . 38
Section 2.6 Commitment Reductions. . . . . . . . . . . . . . . 39
Section 2.7 Prepayments. . . . . . . . . . . . . . . . . . . . 40
Section 2.8 Minimum Principal Amount of Tranches.. . . . . . . 40
Section 2.9 Default Rate and Payment Dates.. . . . . . . . . . 41
Section 2.10 Conversion Options. . . . . . . . . . . . . . . . . 41
Section 2.11 Computation of Interest and Fees. . . . . . . . . . 42
Section 2.12 Pro Rata Treatment and Payments.. . . . . . . . . . 42
Section 2.13 Non-Receipt of Funds by the Administrative Agent.. .43
Section 2.14 Inability to Determine Interest Rate. . . . . . . . 44
Section 2.15 Illegality. . . . . . . . . . . . . . . . . . . . . 45
Section 2.16 Requirements of Law.. . . . . . . . . . . . . . . . 46
Section 2.17 Indemnity.. . . . . . . . . . . . . . . . . . . . . 48
Section 2.18 Taxes.. . . . . . . . . . . . . . . . . . . . . . . 48
Section 2.19 Indemnification; Nature of Issuing Lender's Duties .51
ARTICLE III REPRESENTATIONS AND WARRANTIES. . . . . . . . . .......... .53
Section 3.1 Financial Condition. . . . . . . . . . . . . . . . 53
Section 3.2 No Change. . . . . . . . . . . . . . . . . . . . . 54
Section 3.3 Corporate Existence; Compliance with Law.. . . . . 54
Section 3.4 Corporate Power; Authorization; Enforceable
Obligations. ................................. . 54
Section 3.5 No Legal Bar; No Default.. . . . . . . . . . . . . 55
Section 3.6 No Material Litigation.. . . . . . . . . . . . . . 55
Section 3.7 Investment Company Act.. . . . . . . . . . . . . . 55
Section 3.8 Margin Regulations.. . . . . . . . . . . . . . . . 56
Section 3.9 ERISA. . . . . . . . . . . . . . . . . . . . . . . 56
Section 3.10 Environmental Matters.. . . . . . . . . . . . . . . 57
Section 3.11 Purpose of Loans. . . . . . . . . . . . . . . . . . 58
Section 3.12 Subsidiaries. . . . . . . . . . . . . . . . . . . . 58
Section 3.13 Ownership.. . . . . . . . . . . . . . . . . . . . . 58
Section 3.14 Indebtedness. . . . . . . . . . . . . . . . . . . . 59
Section 3.15 Taxes.. . . . . . . . . . . . . . . . . . . . . . . 59
Section 3.16 Investments.. . . . . . . . . . . . . . . . . . . . 59
Section 3.17 No Burdensome Restrictions. . . . . . . . . . . . . 59
Section 3.18 Brokers' Fees.. . . . . . . . . . . . . . . . . . . 59
Section 3.19 Labor Matters.. . . . . . . . . . . . . . . . . . . 60
Section 3.20 Accuracy and Completeness of Information. . . . . . 60
ARTICLE IV CONDITIONS PRECEDENT . . . . . . . . . . . . . . .......... .60
Section 4.1 Conditions to Closing Date and Initial
Revolving Loans............................. . . 60
Section 4.2 Conditions to All Extensions of Credit.. . . . . . 63
ARTICLE V AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . ..........64
Section 5.1 Financial Statements.. . . . . . . . . . . . . . . 64
Section 5.2 Certificates; Other Information. . . . . . . . . . 66
Section 5.3 Payment of Obligations.. . . . . . . . . . . . . . 67
Section 5.4 Conduct of Business and Maintenance of Existence. .67
Section 5.5 Maintenance of Property; Insurance.. . . . . . . . 67
Section 5.6 Inspection of Property; Books and Records;
Discussions................................. . . 68
Section 5.7 Notices. . . . . . . . . . . . . . . . . . . . . . 68
Section 5.8 Financial Covenants. . . . . . . . . . . . . . . . 69
Section 5.9 Compliance with Law. . . . . . . . . . . . . . . . 69
Section 5.10 Environmental Laws. . . . . . . . . . . . . . . . . 70
Section 5.11 Consolidated Total Tangible Assets. . . . . . . . . 71
ARTICLE VI NEGATIVE COVENANTS . . . . . . . . . . . . . . . .......... .71
Section 6.1 Indebtedness.. . . . . . . . . . . . . . . . . . . 71
Section 6.2 Liens. . . . . . . . . . . . . . . . . . . . . . . 72
Section 6.3 Nature of Business.. . . . . . . . . . . . . . . . 73
Section 6.4 Consolidation, Merger, Sale or Purchase
of Assets, etc............................. . . 73
Section 6.5 Advances, Investments and Loans. . . . . . . . . . 74
Section 6.6 Issuance of Equity Securities. . . . . . . . . . . 74
Section 6.7 Transactions with Affiliates; Modification
of Documentation............................ . .74
Section 6.8 Ownership of Subsidiaries; Restrictions. . . . . . 75
Section 6.9 Fiscal Year; Organizational Documents. . . . . . . 75
Section 6.10 Limitation on Restricted Actions. . . . . . . . . . 75
Section 6.11 Restricted Payments.. . . . . . . . . . . . . . . . 75
Section 6.12 Prepayments of Indebtedness, etc. . . . . . . . . . 76
Section 6.13 Rental, Lease, etc... . . . . . . . . . . . . . . . 76
Section 6.14 Partnership and Joint Venture Indebtedness. . . . . 76
Section 6.15 No Further Negative Pledges.. . . . . . . . . . . . 77
ARTICLE VII EVENTS OF DEFAULT . . . . . . . . . . . . . . . .......... .77
Section 7.1 Events of Default. . . . . . . . . . . . . . . . . 77
Section 7.2 Acceleration; Remedies.. . . . . . . . . . . . . . 80
ARTICLE VIII THE AGENT. . . . . . . . . . . . . . . . . . .......... . .81
Section 8.1 Appointment. . . . . . . . . . . . . . . . . . . . 81
Section 8.2 Delegation of Duties.. . . . . . . . . . . . . . . 81
Section 8.3 Exculpatory Provisions.. . . . . . . . . . . . . . 82
Section 8.4 Reliance by Administrative Agent.. . . . . . . . . 82
Section 8.5 Notice of Default. . . . . . . . . . . . . . . . . 83
Section 8.6 Non-Reliance on Administrative Agent and
Other Lenders.............................. . . 83
Section 8.7 Indemnification. . . . . . . . . . . . . . . . . . 84
Section 8.8 Administrative Agent in Its Individual Capacity. . 85
Section 8.9 Successor Administrative Agent.. . . . . . . . . . 85
Section 8.10 Syndication Agent and Documentation Agent.. . . . . 86
ARTICLE IX MISCELLANEOUS. . . . . . . . . . . . . . . . . . .......... .86
Section 9.1 Amendments and Waivers.. . . . . . . . . . . . . . 86
Section 9.2 Notices. . . . . . . . . . . . . . . . . . . . . . 88
Section 9.3 No Waiver; Cumulative Remedies.. . . . . . . . . . 89
Section 9.4 Survival of Representations and Warranties.. . . . 89
Section 9.5 Payment of Expenses and Taxes. . . . . . . . . . . 90
Section 9.6 Successors and Assigns; Participations;
Purchasing Lenders........................ . . .91
Section 9.7 Adjustments; Set-off.. . . . . . . . . . . . . . . 94
Section 9.8 Table of Contents and Section Headings.. . . . . . 96
Section 9.9 Counterparts.. . . . . . . . . . . . . . . . . . . 96
Section 9.10 Effectiveness.. . . . . . . . . . . . . . . . . . . 96
Section 9.11 Severability. . . . . . . . . . . . . . . . . . . . 96
Section 9.12 Integration.. . . . . . . . . . . . . . . . . . . . 97
Section 9.13 Governing Law.. . . . . . . . . . . . . . . . . . . 97
Section 9.14 Consent to Jurisdiction and Service of Process. . . 97
Section 9.15 Arbitration.. . . . . . . . . . . . . . . . . . . . 98
Section 9.16 Confidentiality.. . . . . . . . . . . . . . . . . .100
Section 9.17 Acknowledgments.. . . . . . . . . . . . . . . . . .100
Section 9.18 Waivers of Jury Trial.. . . . . . . . . . . . . . .101
<PAGE>
Schedules
Schedule 1.1(a) Account Designation Letter
Schedule 2.1(a) Schedule of Lenders and Commitments
Schedule 2.1(b)(i) Form of Notice of Borrowing
Schedule 2.1(e) Form of Revolving Note
Schedule 2.3(d) Form of Swingline Note
Schedule 2.10 Form of Notice of Conversion/Extension
Schedule 2.18 Section 2.18 Certificate
Schedule 3.6 Litigation
Schedule 3.9 ERISA
Schedule 3.10 Environmental Matters
Schedule 3.12 Subsidiaries
Schedule 3.19 Labor Matters
Schedule 6.1(b) Indebtedness
Schedule 6.2 Permitted Liens
Schedule 6.5 Investments
Schedule 6.14 Joint Ventures
Schedule 9.2 Schedule of Lenders' Lending Offices
Schedule 9.6(c) Form of Commitment Transfer Supplement
THIS CREDIT AGREEMENT, dated as of June 28, 2000 (the "Credit
Agreement"), among FLORIDA ROCK INDUSTRIES, INC., a Florida
corporation (the "Borrower"), 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"), FIRST UNION NATIONAL BANK, a national banking
association, as administrative agent for the Lenders hereunder (in
such capacity, the "Administrative Agent"), BANK OF AMERICA, N.A.,
as syndication agent for the Lenders hereunder (in such capacity,
the "Syndication Agent"), SUNTRUST BANK, as documentation agent for
the lenders (in such capacity, the "Documentation Agent") and FIRST
UNION SECURITIES, INC. and BANK OF AMERICA SECURITIES, LLC as
Co-Lead Arrangers hereunder.
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders make loans
and other financial accommodations to the Borrower in the amount of
up to $200,000,000, as more particularly described herein;
WHEREAS, the Lenders have agreed to make such loans and other
financial accommodations to the Borrower on the terms and conditions
contained herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms.
As used in this Agreement, terms defined in the preamble to
this Agreement have the meanings therein indicated, and the
following terms have the following meanings:
"Account Designation Letter" shall mean the Notice of Account
Designation Letter dated the Closing Date from the Borrower to the
Administrative Agent substantially in the form attached hereto as
Schedule 1.1(a).
"Acquisition", by any Person, means the acquisition by such
Person all or substantially all of the capital stock or all or
substantially all of the Property of another Person, whether or not
involving a merger or consolidation with such Person.
"Administrative Agent" shall have the meaning set forth in the
first paragraph of this Agreement and any successors in such
capacity.
"Affiliate" shall mean as to any Person, any other Person
(excluding any Subsidiary) which, directly or indirectly, is in
control of, is controlled by, or is under common control with, such
Person. For purposes of this definition, a Person shall be deemed
to be "controlled by" a Person if such Person possesses, directly
or indirectly, power either (a) to vote 10% or more of the
securities having ordinary voting power for the election of
directors of such Person or (b) to direct or cause the direction of
the management and policies of such Person whether by contract or
otherwise.
"Agreement" shall mean this Credit Agreement, as amended,
modified or supplemented from time to time in accordance with its
terms.
"Alternate Base Rate" shall mean, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and
(b) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. For purposes hereof: "Prime Rate" shall mean, at any time,
the rate of interest per annum publicly announced from time to time
by First Union 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 First Union as its Prime Rate is an index or base rate
and shall not necessarily be its lowest or best rate charged to its
customers or other banks; and "Federal Funds Effective Rate" shall
mean, for any day, the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or,
if such rate is not so published on the next succeeding Business
Day, the average of the quotations for the day of such transactions
received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it. If for any reason
the Administrative Agent shall have determined (which determination
shall be conclusive in the absence of manifest error) that it is
unable to ascertain the Federal Funds Effective Rate, for any
reason, including the inability or failure of the Administrative
Agent to obtain sufficient quotations in accordance with the terms
thereof, the Alternate Base Rate shall be determined without regard
to clause (b) of the first sentence of this definition, as
appropriate, until the circumstances giving rise to such inability
no longer exist. Any change in the Alternate Base Rate due to a
change in the Prime Rate or the Federal Funds Effective Rate shall
be effective on the opening of business on the date of such change.
"Alternate Base Rate Loans" shall mean Loans that bear interest
at an interest rate based on the Alternate Base Rate.
"Applicable Margin" shall mean, for any day, the rate per annum
set forth below opposite the applicable Level then in effect, it
being understood that the Applicable Margin for (a) Alternate Base
Rate Loans shall be the percentage set forth under the column
"Alternate Base Rate Margin", (b) LIBOR Rate Loans shall be the
percentage set forth under the column "LIBOR Rate Margin", (c) the
Letter of Credit Fee shall be the percentage set forth under the
column "LIBOR Rate Margin" and (d) the Commitment Fee shall be the
percentage set forth under the column "Commitment Fee."
Level
Consolidated
Funded
Debt
to
Consolidated
Total
Capitalization
Alternate
Base
Rate
Margin
LIBOR
Rate
Margin
Commitment
Fee
I
<
.50
to
1.0
but
>.40
to
1.0
0.0%
1.150%*
0.225%
II
<
.40
to
1.0
but
>
.35
to
1.0
0.0%
0.875%*
0.200%
III
<
.35
to
1.0
but
>
.20
to
1.0
0.0%
0.625%*
0.185%
IV
<
.20
to
1.0
0.0%
0.625%*
0.150%
* If the Interest Coverage Ratio of the Borrower as of the
end of the fiscal quarter immediately preceding the Interest
Determination Date shall be less than 3.0 to 1.0, then the
LIBOR Rate Margin shall be the greater of: (a) 1.00% or (b)
the rate otherwise applicable based on the Consolidated Funded
Debt to Consolidated Total Capitalization Ratio.
The Applicable Margin shall, in each case, be determined and
adjusted quarterly on the date five (5) Business Days after the date
on which the Administrative Agent has received from the Borrower the
annual or quarterly financial information and certifications
required to be delivered to the Administrative Agent and the Lenders
in accordance with the provisions of Sections 5.1(a), 5.1(b) and
5.2(b) (each an "Interest Determination Date"). Such Applicable
Margin shall be effective from such Interest Determination Date
until the next such Interest Determination Date. The initial
Applicable Margins shall be based on Level III until the first
Interest Determination Date occurring after June 30, 2001. After
the Closing Date, if the Borrower shall fail to provide the annual
or quarterly financial information and certifications in accordance
with the provisions of Sections 5.1(a), 5.1(b) and 5.2(b), the
Applicable Margin from such Interest Determination Date shall, on
the date five (5) Business Days after the date by which the Borrower
was so required to provide such financial information and
certifications to the Administrative Agent and the Lenders, be based
on Level I until such time as such information and certifications
are provided, whereupon the Level shall be determined by the then
current Consolidated Funded Debt to Consolidated Total
Capitalization Ratio.
"Asset Disposition" shall mean the disposition of any or all
of the assets (including, without limitation, the Capital Stock of
a Subsidiary or any ownership interest in a joint venture) of the
Borrower or any Subsidiary whether by sale, lease, transfer or
otherwise. The term "Asset Disposition" shall not include (a)
Specified Sales or (b) any Equity Issuance.
"Bankruptcy Code" shall mean the Bankruptcy Code in Title 11
of the United States Code, as amended, modified, succeeded or
replaced from time to time.
"Borrower" shall have the meaning set forth in the first
paragraph of this Agreement.
"Borrower Obligations" shall mean, without duplication, (a) all
of the obligations of the Borrower to the Lenders (including the
Issuing Lender) and the Administrative Agent, whenever arising,
under this Agreement, the Notes or any of the other Credit Documents
(including, but not limited to, any interest accruing after the
occurrence of a filing of a petition of bankruptcy under the
Bankruptcy Code with respect to the Borrower, regardless of whether
such interest is an allowed claim under the Bankruptcy Code) and (b)
all liabilities and obligations, whenever arising, owing from the
Borrower or any of its Subsidiaries to any Lender, or any Affiliate
of a Lender, arising under any Hedging Agreement.
"Borrowing Date" shall mean, in respect of any Loan, the date
such Loan is made.
"Business Day" shall mean a day other than a Saturday, Sunday
or other day on which commercial banks in Charlotte, North Carolina
or New York, New York are authorized or required by law to close;
provided, however, that when used in connection with a rate
determination, borrowing or payment in respect of a LIBOR Rate Loan,
the term "Business Day" shall also exclude any day on which banks
in London, England are not open for dealings in Dollar deposits in
the London interbank market.
"Capital Lease" shall mean any lease of property, real or
personal, the obligations with respect to which are required to be
capitalized on a balance sheet of the lessee in accordance with
GAAP.
"Capital Stock" shall mean (a) in the case of a corporation,
capital stock, (b) in the case of an association or business entity,
any and all shares, interests, participations, rights or other
equivalents (however designated) of capital stock, (c) in the case
of a partnership, partnership interests (whether general or
limited), (d) in the case of a limited liability company, membership
interests and (e) any other interest or participation that confers
on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, the issuing Person.
"Cash Equivalents" shall mean (a) securities issued or directly
and fully guaranteed or insured by the United States of America or
any agency or instrumentality thereof (provided that the full faith
and credit of the United States of America is pledged in support
thereof) having maturities of not more than twelve months from the
date of acquisition ("Government Obligations"), (b) U.S. dollar
denominated (or foreign currency fully hedged) time deposits,
certificates of deposit, Eurodollar time deposits and Eurodollar
certificates of deposit of (y) any domestic commercial bank of
recognized standing having capital and surplus in excess of
$250,000,000 or (z) any bank whose short-term commercial paper
rating from S&P is at least A-1 or the equivalent thereof or from
Moody's is at least P-1 or the equivalent thereof (any such bank
being an "Approved Bank"), in each case with maturities of not more
than 364 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the
parent company thereof) or any variable rate notes issued by, or
guaranteed by any domestic corporation rated A-1 (or the equivalent
thereof) or better by S&P or P-1 (or the equivalent thereof) or
better by Moody's and maturing within six months of the date of
acquisition, (d) repurchase agreements with a bank or trust company
(including a Lender) or a recognized securities dealer having
capital and surplus in excess of $500,000,000 for direct obligations
issued by or fully guaranteed by the United States of America, (e)
obligations of any state of the United States or any political
subdivision thereof for the payment of the principal and redemption
price of and interest on which there shall have been irrevocably
deposited Government Obligations maturing as to principal and
interest at times and in amounts sufficient to provide such payment,
and (f) auction preferred stock rated in the highest short-term
credit rating category by S&P or Moody's.
"Change of Control" shall mean the occurrence of any of the
following events: (a) any Person or two or more Persons (other than
the directors of Borrower in office as of the Closing Date) acting
in concert shall have acquired beneficial ownership, directly or
indirectly, or shall have acquired by contract or otherwise, or
shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of control
over, Voting Stock of the Borrower (or other securities convertible
into such Voting Stock) representing 50% or more of the combined
voting power of all Voting Stock of the Borrower, or (b) continuing
directors shall cease for any reason to constitute a majority of the
members of the board of directors of the Borrower then in office.
As used herein, "beneficial ownership" shall have the meaning
provided in Rule 13d-3 of the Securities and Exchange Commission
promulgated under the Securities Exchange Act of 1934. As used
herein, "continuing directors" shall mean the directors of Borrower
on the Closing Date and each additional director whose nomination
for election as a director of Borrower is approved by at least two-thirds of
the then continuing directors.
"Closing Date" shall mean the date of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" shall mean the Revolving Commitment, the LOC
Commitment and the Swingline Commitment, individually or
collectively, as appropriate.
"Commitment Fee" shall have the meaning set forth in Section
2.5(a).
"Commitment Percentage" shall mean the Revolving Commitment
Percentage and/or LOC Commitment Percentage, as appropriate.
"Commitment Period" shall mean the period from and including
the Closing Date to but not including the Revolving Commitment
Termination Date.
"Commitment Transfer Supplement" shall mean a Commitment
Transfer Supplement, substantially in the form of Schedule 9.6(c).
"Commonly Controlled Entity" shall mean an entity, whether or
not incorporated, which is under common control with the Borrower
within the meaning of Section 4001 of ERISA or is part of a group
which includes the Borrower and which is treated as a single
employer under Section 414 of the Code.
"Consolidated EBITDA" means, for any period, the sum of (i)
Consolidated Net Income for such period, plus (ii) an amount which,
in the determination of Consolidated Net Income for such period, has
been deducted for (A) Consolidated Interest Expense, (B) total
federal, state, local and foreign income, value added and similar
taxes, (C) losses (or minus gains) on the sale or disposition of
assets outside the ordinary course of business and (D) depreciation,
amortization expense and other non-cash charges, all as determined
in accordance with GAAP.
"Consolidated Funded Debt" shall mean, at any date, all liabilities
of the Borrower and its Subsidiaries (including letters of credit)
that are or should be reflected at such date on the Borrower's
consolidated balance sheet as long-term debt and current maturities
of long-term debt in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, all cash
interest expense of the Borrower and its Subsidiaries including the
interest component under Capital Leases, as determined in accordance
with GAAP.
"Consolidated Net Income" means, for any period, net income
(excluding extraordinary items) after taxes for such period of the
Borrower and its Subsidiaries on a consolidated basis, as determined
in accordance with GAAP.
"Consolidated Net Worth" means, on any day for the Borrower and
its Subsidiaries on a consolidated basis, shareholders' equity as
determined in accordance with GAAP.
"Consolidated Funded Debt to Consolidated Total Capitalization
Ratio" means with respect to the Borrower and its Subsidiaries on
a consolidated basis at any date of determination, the ratio of (a)
Consolidated Funded Debt as of such date to (b) Consolidated Total
Capitalization as of such date.
"Consolidated Total Assets" means, as of any date with respect
to the Borrower and its Subsidiaries on a consolidated basis, total
assets, as determined in accordance with GAAP.
"Consolidated Total Capitalization" means, on any day for the
Borrower and its subsidiaries on a consolidated basis, the sum of
Consolidated Funded Debt plus Consolidated Net Worth.
"Consolidated Total Liabilities" means, as of any date with
respect to the Borrower and its Subsidiaries on a consolidated
basis, total liabilities, as determined in accordance with GAAP.
"Consolidated Total Tangible Assets" means, as of any date with
respect to the Borrower and its Subsidiaries on a consolidated
basis, Consolidated Total Assets minus (a) goodwill and (b) other
items properly classified as "intangible assets" in each case as
determined in accordance with GAAP.
"Contractual Obligation" shall mean, as to any Person, any
provision of any security issued by such Person or of any agreement,
instrument or undertaking to which such Person is a party or by
which it or any of its property is bound.
"Credit Documents" shall mean this Agreement, each of the
Notes, the Letters of Credit and the LOC Documents.
"Default" shall mean any of the events specified in Section
7.1, whether or not any requirement for the giving of notice or the
lapse of time, or both, or any other condition, has been satisfied.
"Defaulting Lender" shall mean, at any time, any Lender that,
at such time (a) has failed to make a Loan required pursuant to the
term of this Credit Agreement, including the funding of a
Participation Interest in accordance with the terms hereof, (b) has
failed to pay to the Administrative Agent or any Lender an amount
owed by such Lender pursuant to the terms of this Credit Agreement,
or (c) has been deemed insolvent or has become subject to a
bankruptcy or insolvency proceeding or to a receiver, trustee or
similar official.
"Dollars" and "$" shall mean dollars in lawful currency of the
United States of America.
"Domestic Lending Office" shall mean, initially, the office of
each Lender designated as such Lender's Domestic Lending Office
shown on Schedule 9.2; and thereafter, such other office of such
Lender as such Lender may from time to time specify to the
Administrative Agent and the Borrower as the office of such Lender
at which Alternate Base Rate Loans of such Lender are to be made.
"Domestic Subsidiary" shall mean any Subsidiary that is
organized and existing under the laws of the United States or any
state or commonwealth thereof or under the laws of the District of
Columbia.
"Environmental Laws" shall mean any and all applicable foreign,
Federal, state, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, requirements of any
Governmental Authority or other Requirement of Law (including common
law) regulating, relating to or imposing liability or standards of
conduct concerning protection of human health or the environment,
as now or may at any time be in effect during the term of this
Credit Agreement.
"Equity Issuance" shall mean any issuance by the Borrower or
any Subsidiary to any Person which is not the Borrower of (a) shares
of its Capital Stock, (b) any shares of its Capital Stock pursuant
to the exercise of options or warrants or (c) any shares of its
Capital Stock pursuant to the conversion of any debt securities to
equity. The term "Equity Issuance" shall not include any Asset
Disposition or the issuance of common stock of the Borrower's
Subsidiaries to its officers, directors or employees in connection
with stock offering plans and other benefit plans of such
Subsidiaries.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"Eurodollar Reserve Percentage" shall mean for any day, the
percentage (expressed as a decimal and rounded upwards, if
necessary, to the next higher 1/100th of 1%) which is in effect for
such day as prescribed by the Federal Reserve Board (or any
successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or emergency
reserves) in respect of Eurocurrency liabilities, as defined in
Regulation D of such Board as in effect from time to time, or any
similar category of liabilities for a member bank of the Federal
Reserve System in New York City.
"Event of Default" shall mean any of the events specified in
Section 7.1; provided, however, that any requirement for the giving
of notice or the lapse of time, or both, or any other condition, has
been satisfied.
"Extension of Credit" shall mean, as to any Lender, the making
of a Loan by such Lender or the issuance of, or participation in,
a Letter of Credit by such Lender.
"Federal Funds Effective Rate" shall have the meaning set forth
in the definition of "Alternate Base Rate".
"Fee Letter" shall mean the letter agreement dated May 26, 2000
addressed to the Borrower from the Administrative Agent, as
amended, modified or otherwise supplemented.
"First Union" shall mean First Union National Bank, a national
banking association.
"GAAP" shall mean generally accepted accounting principles in
effect in the United States of America applied on a consistent
basis, subject, however, in the case of determination of compliance
with the financial covenants set out in Section 5.8 to the
provisions of Section 1.3.
"Government Acts" shall have the meaning set forth in Section
2.19.
"Governmental Authority" shall mean any nation or government,
any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guaranty Obligations" means, with respect to any Person,
without duplication, any obligations of such Person (other than
endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) guaranteeing or intended to
guarantee any Indebtedness of any other Person in any manner,
whether direct or indirect, and including without limitation any
obligation, whether or not contingent, (a) to purchase any such
Indebtedness or any property constituting security therefor, (b) to
advance or provide funds or other support for the payment or
purchase of any such Indebtedness or to maintain working capital,
solvency or other balance sheet condition of such other Person
(including without limitation keep well agreements, maintenance
agreements, comfort letters or similar agreements or arrangements)
for the benefit of any holder of Indebtedness of such other Person,
(c) to lease or purchase Property, securities or services primarily
for the purpose of assuring the holder of such Indebtedness, or (d)
to otherwise assure or hold harmless the holder of such Indebtedness
against loss in respect thereof.
"Hedging 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 or commodity price 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
Property purchased by such Person (other than customary reservations
or retentions of title under agreements with suppliers entered into
in the ordinary course of business), (d) all obligations of such
Person issued or assumed as the deferred purchase price of Property
or services purchased by such Person (other than trade debt incurred
in the ordinary course of business and due within six months of the
incurrence thereof) which would appear as liabilities on a balance
sheet of such Person, (e) all obligations of such Person under take-or-pay or
similar arrangements or under commodities agreements, (f)
all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on, or payable out of the proceeds of
production from, Property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed, (g) all
Guaranty Obligations of such Person with respect to Indebtedness of
another Person, (h) the principal portion of all obligations of such
Person under Capital Leases, (i) all obligations of such Person
under Hedging Agreements, (j) the maximum amount of all standby
letters of credit issued or bankers' acceptances facilities created
for the account of such Person and, without duplication, all drafts
drawn thereunder (to the extent unreimbursed), (k) all preferred
Capital Stock issued by such Person and which by the terms thereof
could be (at the request of the holders thereof or otherwise)
subject to mandatory sinking fund payments, redemption or other
acceleration, (l) the principal balance outstanding under any
synthetic lease, tax retention operating lease, off-balance sheet
loan or similar off-balance sheet financing product, and (m) the
Indebtedness of any partnership or unincorporated joint venture in
which such Person is a general partner or a joint venturer, but only
to the extent to which there is recourse to such Person for payment
of such Indebtedness.
"Insolvency" shall mean, with respect to any Multiemployer
Plan, the condition that such Plan is insolvent within the meaning
of such term as used in Section 4245 of ERISA.
"Interest Coverage Ratio" means, with respect to the Borrower
and its Subsidiaries on a consolidated basis for the twelve month
period ending on the last day of any fiscal quarter of the Borrower
and its Subsidiaries, the ratio of (a) Consolidated EBITDA for such
period to (b) Consolidated Interest Expense for such period.
"Interest Payment Date" shall mean (a) as to any Alternate Base
Rate Loan or Swingline Loan, the last day of each March, June,
September and December and the Revolving Commitment Termination
Date, (b) as to any LIBOR Rate Loan having an Interest Period of
three months or less, the last day of such Interest Period, and (c)
as to any LIBOR Rate Loan having an Interest Period longer than
three months, each day which is three months after the first day of
such Interest Period and the last day of such Interest Period.
"Interest Period" shall mean with respect to any LIBOR Rate
Loan, (i) initially, the period commencing on the Borrowing Date or
conversion date, as the case may be, with respect to such LIBOR Rate
Loan and ending one, two, three or six months thereafter, as
selected by the Borrower in the notice of borrowing or notice of
conversion given with respect thereto and (ii) thereafter, each
period commencing on the last day of the immediately preceding
Interest Period applicable to such LIBOR Rate Loan and ending one,
two, three or six months thereafter, as selected by the Borrower by
irrevocable notice to the Administrative Agent not less than three
Business Days prior to the last day of the then current Interest
Period with respect thereto; provided, however, (A) if any Interest
Period pertaining to a LIBOR Rate Loan would otherwise end on a day
that is not a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end on the
immediately preceding Business Day, (B) any Interest Period
pertaining to a LIBOR Rate Loan that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the relevant calendar
month, (C) if the Borrower shall fail to give notice as provided
above, the Borrower shall be deemed to have selected an Alternate
Base Rate Loan to replace the affected LIBOR Rate Loan, (D) any
Interest Period in respect of any Loan that would otherwise extend
beyond the Revolving Commitment Termination Date is due on the
Revolving Commitment Termination Date, and (E) no more than six (6)
LIBOR Rate Loans may be in effect at any time. For purposes hereof,
LIBOR Rate Loans with different Interest Periods shall be considered
as separate LIBOR Rate Loans, even if they shall begin on the same
date and have the same duration, although borrowings, extensions and
conversions may, in accordance with the provisions hereof, be
combined at the end of existing Interest Periods to constitute a new
LIBOR Rate Loan with a single Interest Period.
"Issuing Lender" shall mean First Union.
"Issuing Lender Fees" shall have the meaning set forth in
Section 2.5(c).
"Lender" shall have the meaning set forth in the first
paragraph of this Agreement.
"Letters of Credit" shall mean any letter of credit issued by
the Issuing Lender pursuant to the terms hereof, as such Letters of
Credit may be amended, modified, extended, renewed or replaced from
time to time.
"Letter of Credit Fee" shall have the meaning set forth in
Section 2.5(b).
"LIBOR" shall mean, for any LIBOR Rate Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any
successor page) as the London interbank offered rate for deposits
in Dollars at approximately 11:00 A.M. (London time) two Business
Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is
not available, the term "LIBOR" shall mean, for any LIBOR Rate Loan
for any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for
deposits in Dollars at approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period; provided, however, if more
than one rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates
(rounded upwards, if necessary, to the nearest 1/100 of 1%). If,
for any reason, neither of such rates is available, then "LIBOR"
shall mean the rate per annum at which, as determined by the
Administrative Agent, Dollars in an amount comparable to the Loans
then requested are being offered to leading banks at approximately
11:00 A.M. London time, two (2) Business Days prior to the
commencement of the applicable Interest Period for settlement in
immediately available funds by leading banks in the London interbank
market for a period equal to the Interest Period selected.
"LIBOR Lending Office" shall mean, initially, the office of
each Lender designated as such Lender's LIBOR Lending Office shown
on Schedule 9.2; and thereafter, such other office of such Lender
as such Lender may from time to time specify to the Administrative
Agent and the Borrower as the office of such Lender at which the
LIBOR Rate Loans of such Lender are to be made.
"LIBOR Rate" shall mean a rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) determined by the
Administrative Agent pursuant to the following formula:
LIBOR Rate = LIBOR
1.00 - Eurodollar Reserve Percentage
"LIBOR Rate Loan" shall mean Loans the rate of interest
applicable to which is based on the LIBOR Rate.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or
other), charge or other security interest or any preference,
priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any Capital
Lease having substantially the same economic effect as any of the
foregoing).
"Loan" shall mean a Revolving Loan and/or a Swingline Loan, as
appropriate.
"LOC Commitment" shall mean the commitment of the Issuing
Lender to issue Letters of Credit and with respect to each Lender,
the commitment of such Lender to purchase participation interests
in the Letters of Credit up to such Lender's LOC Committed Amount
as specified in Schedule 2.1(a), as such amount may be reduced from
time to time in accordance with the provisions hereof.
"LOC Commitment Percentage" shall mean, for each Lender, the
percentage identified as its LOC Commitment Percentage on Schedule
2.1(a), as such percentage may be modified in connection with any
assignment made in accordance with the provisions of Section 9.6(c).
"LOC Committed Amount" shall mean, collectively, the aggregate
amount of all of the LOC Commitments of the Lenders to issue and
participate in Letters of Credit as referenced in Section 2.4 and,
individually, the amount of each Lender's LOC Commitment as
specified in Schedule 2.1(a).
"LOC Documents" shall mean, with respect to any Letter of
Credit, such Letter of Credit, any amendments thereto, any documents
delivered in connection therewith, any application therefor, and any
agreements, instruments, guarantees or other documents (whether
general in application or applicable only to such Letter of Credit)
governing or providing for (a) the rights and obligations of the
parties concerned or (b) any collateral security for such
obligations.
"LOC Obligations" shall mean, at any time, the sum of (a) the
maximum amount which is, or at any time thereafter may become,
available to be drawn under Letters of Credit then outstanding,
assuming compliance with all requirements for drawings referred to
in such Letters of Credit plus (b) the aggregate amount of all
drawings under Letters of Credit honored by the Issuing Lender but
not theretofore reimbursed.
"Mandatory Borrowing" shall have the meaning set forth in
Section 2.3(b)(ii) or Section 2.4(e), as the context may require.
"Material Adverse Effect" shall mean a material adverse effect
on (a) the business, operations, property or condition (financial
or otherwise) of the Borrower and its Subsidiaries taken as a whole,
(b) the ability of the Borrower 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.
"Materials of Environmental Concern" shall mean any gasoline
or petroleum (including crude oil or any fraction thereof) or
petroleum products or any hazardous or toxic substances, materials
or wastes, defined or regulated as such in or under any
Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Moody's" shall mean Moody's Investors Service, Inc.
"Multiemployer Plan" shall mean a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"Note" or "Notes" shall mean the Revolving Notes and/or the
Swingline Note, collectively, separately or individually, as
appropriate.
"Notice of Borrowing" shall mean the written notice of
borrowing as referenced and defined in Section 2.1(b)(i) or
2.3(b)(i), as appropriate.
"Notice of Conversion" shall mean the written notice of
extension or conversion as referenced and defined in Section 2.10.
"Obligations" shall mean, collectively, Loans and LOC
Obligations.
"Participant" shall have the meaning set forth in Section
9.6(b).
"Participation Interest" shall mean the purchase by a Lender
of a participation interest in Swingline Loans as provided in
Section 2.3(b)(ii) or in Letters of Credit as provided in Section
2.4(c).
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA.
"Permitted Acquisition" shall mean an Acquisition by the
Borrower or any Subsidiary of the Borrower for the fair market value
of the capital stock or Property acquired, provided that (a) the
capital stock or Property acquired in such Acquisition relates to
a line of business reasonably similar to the business of the
Borrower and its Subsidiaries engaged in on the Closing Date; (b)
in the case of an Acquisition of the capital stock of another
Person, (i) the board of directors (or other comparable governing
body) of such other Person shall have duly approved such Acquisition
and (ii) such Person shall become a wholly-owned direct or indirect
Subsidiary of the Borrower; (c) the representations and warranties
made by the Borrower in any Credit Document shall be true and
correct in all material respects at and as if made as of the date
of such Acquisition (after giving effect thereto) except to the
extent such representations and warranties expressly relate to an
earlier date and no Default or Event of Default exists as of the
date of such Acquisition (after giving effect thereto), (d) if the
aggregate consideration for such Acquisition is less than 10% of
Consolidated Total Assets, upon giving effect to such Acquisition
on a Pro Forma Basis, the Borrower will be in compliance with all
of the financial covenants set forth in Section 5.8 and (e) if the
aggregate consideration for such Acquisition exceeds 10% of the
Borrower's Consolidated Total Assets, the Borrower shall have
delivered to the Agent a Pro Forma Compliance Certificate
demonstrating that, upon giving effect to the Acquisition on a Pro
Forma Basis, the Borrower will be in compliance with all of the
financial covenants set forth in Section 5.8.
"Permitted Investments" shall mean:
(a) cash and Cash Equivalents;
(b) receivables owing to the Borrower or any of its
Subsidiaries or any receivables and advances to suppliers, in
each case if created, acquired or made in the ordinary course
of business and payable or dischargeable in accordance with
customary trade terms;
(c) investments (including debt obligations) received in
connection with the bankruptcy or reorganization of suppliers
and customers and in settlement of delinquent obligations of,
and other disputes with, customers and suppliers arising in
the ordinary course of business;
(d) investments, acquisitions or transactions permitted
under Sections 6.1 or 6.2;
(e) investments existing as of the Closing Date and set
forth in Schedule 6.5;
(f) loans to employees, directors or officers in
connection with the award of convertible bonds or stock under
a stock incentive plan, stock option plan or other equity
based compensation plan or arrangement in the aggregate not to
exceed $5,000,000 (calculated on the exercise price for any
such shares) in the aggregate at any time outstanding;
(g) other advances or loans to employees, directors,
officers, shareholders or agents not to exceed $5,000,000 in
the aggregate at any time outstanding;
(h) investments in Foreign Subsidiaries or minority
interests in domestic or foreign joint ventures in an
aggregate amount not to exceed ten percent (10%) of
Consolidated Total Assets at any time outstanding; and
(i) additional loan advances and/or investments of a
nature not contemplated by the foregoing clauses hereof,
provided that such loans, advances and/or investments made
pursuant to this clause (i) shall not exceed five percent (5%)
of Consolidated Total Assets in the aggregate at any time
outstanding.
As used herein, "investment" means all investments, in cash or
by delivery of property made, directly or indirectly in, to or from
any Person, whether by acquisition of shares of Capital Stock,
property, assets, indebtedness or other obligations or securities
or by loan advance, capital contribution or otherwise.
"Permitted Liens" means:
(a) Liens existing as of the Closing Date and set forth
on Schedule 6.2; provided that (i) no such Lien shall at any
time be extended to or cover any Property other than the
Property subject thereto on the Closing Date (provided,
however, that Liens on new Property which arise in replacement
of Liens on previously owned Property to the extent that such
new Property is acquired through like-kind exchanges shall be
permitted hereunder) and (ii) the principal amount of the
Indebtedness secured by such Liens shall not be extended,
renewed, refunded or refinanced.
(b) Liens (other than Liens created or imposed under
ERISA) for taxes, assessments or governmental charges or
levies not yet due or Liens for taxes being contested in good
faith by appropriate proceedings for which adequate reserves
determined in accordance with GAAP have been established (and
as to which the Property subject to any such Lien is not yet
subject to foreclosure, sale or loss on account thereof);
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and suppliers and other
Liens imposed by law or pursuant to customary reservations or
retentions of title arising in the ordinary course of
business, provided that such Liens secure only amounts not yet
due and payable or, if due and payable, are unfiled and no
other action has been taken to enforce the same or are being
contested in good faith by appropriate proceedings for which
adequate reserves determined in accordance with GAAP have been
established (and as to which the Property subject to any such
Lien is not yet subject to foreclosure, sale or loss on
account thereof);
(d) Liens (other than Liens created or imposed under
ERISA) incurred or deposits made in the ordinary course of
business in connection with workers' compensation,
unemployment insurance and other types of social security, or
to secure the performance of tenders, statutory obligations,
bids, leases, government contracts, performance and return of
money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(e) Liens in connection with attachments or judgments
(including judgment or appeal bonds) provided that the
judgments secured shall, within 30 days after the entry
thereof, have been discharged or execution thereof stayed
pending appeal, or shall have been discharged within 30 days
after the expiration of any such stay;
(f) easements, rights-of-way, restrictions (including
zoning restrictions), minor defects or irregularities in title
and other similar charges or encumbrances not, in any material
respect, impairing the use of the encumbered Property for its
intended purposes;
(g) Liens securing purchase money Indebtedness
(including Capital Leases), provided that any such Lien
attaches only to the Property financed and such Lien attaches
thereto concurrently with or within 90 days after the
acquisition thereof;
(h) leases or subleases granted to others not
interfering in any material respect with the business of the
Borrower and its Subsidiaries;
(i) any interest of title of a lessor under, and Liens
arising from UCC financing statements (or equivalent filings,
registrations or agreements in foreign jurisdictions) relating
to, leases permitted by this Credit Agreement;
(j) normal and customary rights of setoff upon deposits
of cash in favor of banks or other depository institutions;
(k) inchoate Liens arising under ERISA to secure current
service pension liabilities as they are incurred under the
provisions of any Plan;
(l) Liens assumed in connection with a Permitted
Acquisition, so long as such Liens cover only the assets
acquired pursuant to such Permitted Acquisition;
(m) Liens on rental property developed by the Borrower
or any Subsidiary of the Borrower; and
(n) additional Liens not otherwise permitted by the
foregoing clauses hereof
provided that such additional Liens permitted by this clause
(n) do not encumber property and assets which constitute more
than five percent (5%) of Consolidated Total Assets in the
aggregate.
"Person" shall mean an individual, partnership, corporation,
limited liability company, business trust, joint stock company,
trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.
"Plan" shall mean, at any particular time, any employee benefit
plan which is covered by Title IV of ERISA and in respect of which
the Borrower or a Commonly Controlled Entity is (or, if such plan
were terminated at such time, would under Section 4069 of ERISA be
deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Prime Rate" shall have the meaning set forth in the definition
of Alternate Base Rate.
"Pro Forma Basis" means, for purposes of calculating compliance
with each of the financial covenants set forth in Section 5.8 in
respect of a proposed transaction, that such transaction shall be
deemed to have occurred as of the first day of the four fiscal-quarter period
ending as of the most recent fiscal quarter end
preceding the date of such transaction with respect to which the
Administrative Agent has received the information required pursuant
to Section 5.1 In connection with any calculation of the financial
covenants set forth in Section 5.8 upon giving effect to a
transaction on a Pro Forma Basis, (a) any Indebtedness incurred by
the Borrower in connection with such transaction (i) shall be deemed
to have been incurred as of the first day of the applicable period
and (ii) if such Indebtedness has a floating or formula rate, shall
have an implied rate of interest for the applicable period for
purposes of this definition determined by utilizing the rate which
is or would be in effect with respect to such Indebtedness as at the
relevant date of determination, (b) income statement items (whether
positive or negative) attributable to the Property acquired in such
transaction or to the Acquisition comprising such transaction, as
applicable, shall be included to the extent relating to the relevant
period and (c) pro forma adjustments may be included to the extent
that such adjustments give effect to events that are (i) directly
attributable to such transaction, (ii) expected to continue to be
applicable to the Borrower and (iii) factually supportable.
"Pro Forma Compliance Certificate" means a certificate of an
Responsible Officer of the Borrower delivered to the Administrative
Agent in connection with any Acquisition as referred to in the
definition of "Permitted Acquisition" set forth in this Section 1.1,
as applicable, and containing reasonably detailed calculations, upon
giving effect to the applicable transaction on a Pro Forma Basis,
of the Consolidated Funded Debt to Consolidated Total Capitalization
Ratio and Interest Coverage Ratio as of the most recent fiscal
quarter end preceding the date of the applicable transaction with
respect to which the Administrative Agent shall have received the
financial information required pursuant to Section 5.1.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Purchasing Lenders" shall have the meaning set forth in
Section 9.6(c).
"Register" shall have the meaning set forth in Section 9.6(d).
"Reorganization" shall mean, with respect to any Multiemployer
Plan, the condition that such Plan is in reorganization within the
meaning of such term as used in Section 4241 of ERISA.
"Reportable Event" shall mean any of the events set forth in
Section 4043(c) of ERISA, other than those events as to which the
thirty-day notice period is waived under PBGC Reg. Section 4043.
"Required Lenders" shall mean Lenders, other than Defaulting
Lenders, holding in the aggregate greater than 66 2/3% of (i) the
Revolving Commitments (and Participation Interests therein) or (ii)
if the Revolving Commitments have been terminated, the outstanding
Revolving Loans and Participation Interests (including the
Participation Interests of the Issuing Lender in any Letters of
Credit and of the Swingline Lender in any Swingline Loans).
"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" shall mean the Chairman of the board of
directors, the President and Chief Executive Officer or the Chief
Financial Officer or any Vice President of the Borrower.
"Restricted Payment" shall mean (a) any dividend or other
distribution, direct or indirect, on account of any shares of any
class of Capital Stock of the Borrower or any of its Subsidiaries,
now or hereafter outstanding, (b) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of Capital
Stock of the Borrower or any of its Subsidiaries, now or hereafter
outstanding, (c) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of Capital Stock of the Borrower or any
of its Subsidiaries, now or hereafter outstanding, or (d) any
payment or prepayment of principal of, premium, if any, or interest
on, redemption, purchase, retirement, defeasance, sinking fund or
similar payment with respect to, any Subordinated Debt.
"Revolving Commitment" shall mean, with respect to each Lender,
the commitment of such Lender to make Revolving Loans in an
aggregate principal amount at any time outstanding up to such
Lender's Revolving Committed Amount as specified in Schedule 2.1(a),
as such amount may be reduced from time to time in accordance with
the provisions hereof.
"Revolving Commitment Percentage" shall mean, for each Lender,
the percentage identified as its Revolving Commitment Percentage on
Schedule 2.1(a), as such percentage may be modified in connection
with any assignment made in accordance with the provisions of
Section 9.6(c).
"Revolving Commitment Termination Date" shall mean June 28,
2005.
"Revolving Committed Amount" shall mean, collectively, the
aggregate amount of all Revolving Commitments as referenced in
Section 2.1(a), as such amount may be reduced from time to time in
accordance with the provisions hereof, and, individually, the amount
of each Lender's Revolving Commitment as specified on Schedule
2.1(a).
"Revolving Loans" shall have the meaning set forth in Section
2.1.
"Revolving Note" or "Revolving Notes" shall mean the promissory
notes of the Borrower in favor of each of the Lenders evidencing the
Revolving Loans provided pursuant to Section 2.1(e), individually
or collectively, as appropriate, as such promissory notes may be
amended, modified, supplemented, extended, renewed or replaced from
time to time.
"S&P" shall mean Standard & Poor's Ratings Group, a division
of McGraw Hill, Inc.
"Sale Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party,
providing for the leasing to the Borrower of any Property, whether
owned by the Borrower as of the Closing Date or later acquired,
which has been or is to be sold or transferred by the Borrower to
such Person or to any other Person from whom funds have been, or are
to be, advanced by such Person on the security of such Property.
"Single Employer Plan" shall mean any Plan which is not a
Multiemployer Plan.
"Specified Sales" shall mean (a) the sale, transfer, lease,
exchange or other disposition of inventory, materials, equipment and
other Property in the ordinary course of business and (b) the sale,
transfer or other disposition of cash and Cash Equivalents, so long
as the Borrower or the applicable Subsidiary receives, in return,
cash, Cash Equivalents or other property having a fair market value
equal to the fair market value of such Cash Equivalents.
"Subsidiary" shall mean, as to any Person, a corporation,
partnership, limited liability company or other entity of which
shares of stock or other ownership interests having ordinary voting
power (other than stock or such other ownership interests having
such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or
the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to
a Subsidiary or Subsidiaries of the Borrower.
"Swingline Commitment" shall mean the commitment of the
Swingline Lender to make Swingline Loans in an aggregate principal
amount at any time outstanding up to the Swingline Committed Amount,
and the commitment of the Lenders to purchase participation
interests in the Swingline Loans as provided in Section 2.3(b)(ii),
as such amounts may be reduced from time to time in accordance with
the provisions hereof.
"Swingline Committed Amount" shall mean the amount of the
Swingline Lender's Swingline Commitment as specified in Section
2.3(a).
"Swingline Lender" shall mean First Union, in its capacity as
such.
"Swingline Loan" or "Swingline Loans" shall have the meaning
set forth in Section 2.3(a).
"Swingline Note" shall mean the promissory note of the Borrower
in favor of the Swingline Lender evidencing the Swingline Loans
provided pursuant to Section 2.3(d), as such promissory note may be
amended, modified, supplemented, extended, renewed or replaced from
time to time.
"Taxes" shall have the meaning set forth in Section 2.18.
"Tranche" shall mean the collective reference to LIBOR Rate
Loans whose Interest Periods begin and end on the same day. A
Tranche may sometimes be referred to as a "LIBOR Tranche".
"Transfer Effective Date" shall have the meaning set forth in
each Commitment Transfer Supplement.
"2.18 Certificate" shall have the meaning set forth in Section
2.18.
"Type" shall mean, as to any Loan, its nature as an Alternate
Base Rate Loan, LIBOR Rate Loan or Swingline Loan, as the case may
be.
"Voting Stock" means, with respect to any Person, Capital Stock
issued by such Person the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of
directors (or persons performing similar functions) of such Person,
even though the right so to vote has been suspended by the happening
of such a contingency.
Section 1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms
defined in this Agreement shall have the defined meanings when
used in the Notes or other Credit Documents or any certificate
or other document made or delivered pursuant hereto.
(b) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section, subsection, Schedule
and Exhibit references are to this Agreement unless otherwise
specified.
(c) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of
such terms.
Section 1.3 Accounting Terms.
Unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations hereunder
shall be made, and all financial statements required to be delivered
hereunder shall be prepared in accordance with GAAP applied on a
basis consistent with the most recent audited consolidated financial
statements of the Borrower delivered to the Lenders; provided that,
if the Borrower notifies the Administrative Agent that it wishes to
amend any covenant in Section 5.8 to eliminate the effect of any
change in GAAP on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Required Lenders
wish to amend Section 5.8 for such purpose), then the Borrower's
compliance with such covenant shall be determined on the basis of
GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant
is amended in a manner satisfactory to the Borrower and the Required
Lenders.
The Borrower shall deliver to the Administrative Agent and each
Lender at the same time as the delivery of any annual or quarterly
financial statements given in accordance with the provisions of
Section 5.1, (a) a description in reasonable detail of any material
change in the application of accounting principles employed in the
preparation of such financial statements from those applied in the
most recently preceding quarterly or annual financial statements as
to which no objection shall have been made in accordance with the
provisions above and (b) a reasonable estimate of the effect on the
financial statements on account of such changes in application.
ARTICLE II
THE LOANS; AMOUNT AND TERMS
Section 2.1 Revolving Loans.
(a) Revolving Commitment. During the Commitment Period,
subject to the terms and conditions hereof, each Lender
severally agrees to make revolving credit loans ("Revolving
Loans") to the Borrower from time to time for the purposes
hereinafter set forth; provided, however, that (i) with regard
to each Lender individually, the sum of such Lender's share of
outstanding Revolving Loans plus such Lender's Revolving
Commitment Percentage of Swingline Loans plus such Lender's
LOC Commitment Percentage of LOC Obligations shall not exceed
such Lender's Revolving Commitment Percentage of the aggregate
Revolving Committed Amount, and (ii) with regard to the
Lenders collectively, the sum of the aggregate amount of
outstanding Revolving Loans plus Swingline Loans plus LOC
Obligations, shall not exceed the Revolving Committed Amount.
For purposes hereof, the aggregate amount available hereunder
shall be TWO HUNDRED MILLION DOLLARS ($200,000,000) (as such
aggregate maximum amount may be reduced from time to time as
provided in Section 2.6, the "Revolving Committed Amount").
Revolving Loans may consist of Alternate Base Rate Loans or
LIBOR Rate Loans, or a combination thereof, as the Borrower
may request, and may be repaid and reborrowed in accordance
with the provisions hereof. LIBOR Rate Loans shall be made by
each Lender at its LIBOR Lending Office and Alternate Base
Rate Loans at its Domestic Lending Office.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall
request a Revolving Loan borrowing by written notice (or
telephone notice promptly confirmed in writing which
confirmation may be by fax) to the Administrative Agent
not later than 11:00 A.M. (Charlotte, North Carolina
time) on the Business Day prior to the date of requested
borrowing in the case of Alternate Base Rate Loans, and
on the third Business Day prior to the date of the
requested borrowing in the case of LIBOR Rate Loans.
Each such request for borrowing shall be irrevocable and
shall specify (A) that a Revolving Loan is requested, (B)
the date of the requested borrowing (which shall be a
Business Day), (C) the aggregate principal amount to be
borrowed, (D) whether the borrowing shall be comprised of
Alternate Base Rate Loans, LIBOR Rate Loans or a
combination thereof, and if LIBOR Rate Loans are
requested, the Interest Period(s) therefor. A form of
Notice of Borrowing (a "Notice of Borrowing") is attached
as Schedule 2.1(b)(i). If the Borrower shall fail to
specify in any such Notice of Borrowing (I) an applicable
Interest Period in the case of a LIBOR Rate Loan, then
such notice shall be deemed to be a request for an
Interest Period of one month, or (II) the Type of
Revolving Loan requested, then such notice shall be
deemed to be a request for an Alternate Base Rate Loan
hereunder. The Administrative Agent shall give notice to
each Lender promptly upon receipt of each Notice of
Borrowing, the contents thereof and each such Lender's
share thereof. All Revolving Loans made on the Closing
Date shall bear interest at the Alternate Base Rate until
the earlier of (i) the completion of the syndication of
the Commitments to financial institutions which shall
become Lenders hereunder or (ii) thirty days from the
Closing Date.
(ii) Minimum Amounts. Each Revolving Loan borrowing
that is a LIBOR Rate Loan shall be in a minimum aggregate
amount of $2,500,000 and integral multiples of $500,000
in excess thereof (or the remaining amount of the
Revolving Committed Amount, if less). Each Revolving
Loan borrowing that is a Alternate Base Rate Loan shall
be in a minimum aggregate amount of $500,000 and integral
multiples of $100,000 in excess thereof (or the remaining
amount of the Revolving Committed Amount, if less).
(iii) Advances. Each Lender will make its
Revolving Commitment Percentage of each Revolving Loan
borrowing available to the Administrative Agent for the
account of the Borrower at the office of the
Administrative Agent specified in Schedule 9.2, or at
such other office as the Administrative Agent may
designate in writing, by 1:00 P.M. (Charlotte, North
Carolina time) on the date specified in the applicable
Notice of Borrowing in Dollars and in funds immediately
available to the Administrative Agent. Such borrowing
will then be made available to the Borrower by the
Administrative Agent by crediting the account of the
Borrower on the books of such office with the aggregate
of the amounts made available to the Administrative Agent
by the Lenders and in like funds as received by the
Administrative Agent.
(c) Repayment. The principal amount of all Revolving
Loans shall be due and payable in full on the Revolving
Commitment Termination Date.
(d) Interest. Subject to the provisions of Section 2.9,
Revolving Loans shall bear interest as follows:
(i) Alternate Base Rate Loans. During such periods
as Revolving Loans shall be comprised of Alternate Base
Rate Loans, each such Alternate Base Rate Loan shall bear
interest at a per annum rate equal to the sum of the
Alternate Base Rate plus the Applicable Margin; and
(ii) LIBOR Rate Loans. During such periods as
Revolving Loans shall be comprised of LIBOR Rate Loans,
each such LIBOR Rate Loan shall bear interest at a per
annum rate equal to the sum of the LIBOR Rate plus the
Applicable Margin.
Interest on Revolving Loans shall be payable in arrears on
each Interest Payment Date.
(e) Revolving Notes. Each Lender's Revolving Commitment
Percentage of the Revolving Loans shall be evidenced by a duly
executed promissory note of the Borrower to such Lender in
substantially the form of Schedule 2.1(e).
Section 2.2 [Intentionally Omitted].
Section 2.3 Swingline Loan Subfacility.
(a) Swingline Commitment. During the Commitment Period,
subject to the terms and conditions hereof, the Swingline
Lender, in its individual capacity, agrees to make certain
revolving credit loans to the Borrower (each a "Swingline
Loan" and, collectively, the "Swingline Loans") for the
purposes hereinafter set forth; provided, however, (i) the
aggregate amount of Swingline Loans outstanding at any time
shall not exceed TEN MILLION DOLLARS ($10,000,000) (the
"Swingline Committed Amount"), and (ii) the sum of the
aggregate amount of outstanding Revolving Loans plus Swingline
Loans plus LOC Obligations shall not exceed the Revolving
Committed Amount. Swingline Loans hereunder may be repaid and
reborrowed in accordance with the provisions hereof.
(b) Swingline Loan Borrowings.
(i) Notice of Borrowing and Disbursement. The
Swingline Lender will make Swingline Loans available to
the Borrower on any Business Day upon request made by the
Borrower not later than 12:00 Noon (Charlotte, North
Carolina time) on such Business Day. A notice of request
for Swingline Loan borrowing shall be made in the form of
Schedule 2.1(b)(i) with appropriate modifications.
Swingline Loan borrowings hereunder shall be made in
minimum amounts of $100,000 and in integral amounts of
$100,000 in excess thereof.
(ii) Repayment of Swingline Loans. Each Swingline
Loan borrowing shall be due and payable on the Revolving
Commitment Termination Date. The Swingline Lender may,
at any time, in its sole discretion, by written notice to
the Borrower and the Administrative Agent, demand
repayment of its Swingline Loans by way of a Revolving
Loan borrowing, in which case the Borrower shall be
deemed to have requested a Revolving Loan borrowing
comprised entirely of Alternate Base Rate Loans in the
amount of such Swingline Loans; provided, however, that,
in the following circumstances, any such demand shall
also be deemed to have been given one Business Day prior
to each of (A) the Revolving Commitment Termination Date,
(B) the occurrence of any Event of Default described in
Section 7.1(e), (C) upon acceleration of the Borrower
Obligations hereunder, whether on account of an Event of
Default described in Section 7.1(e) or any other Event of
Default and (D) the exercise of remedies in accordance
with the provisions of Section 7.2 hereof (each such
Revolving Loan borrowing made on account of any such
deemed request therefor as provided herein being
hereinafter referred to as a "Mandatory Borrowing").
Each Lender hereby irrevocably agrees to make such
Revolving Loans promptly upon any such request or deemed
request on account of each Mandatory Borrowing in the
amount and in the manner specified in the preceding
sentence and on the same such date notwithstanding (A)
the amount of Mandatory Borrowing may not comply with the
minimum amount for borrowings of Revolving Loans
otherwise required hereunder, (B) whether any conditions
specified in Section 4.2 are then satisfied, (C) whether
a Default or an Event of Default then exists, (D) failure
of any such request or deemed request for Revolving Loans
to be made by the time otherwise required in Section
2.1(b)(i), (E) the date of such Mandatory Borrowing, or
(F) any reduction in the Revolving Committed Amount or
termination of the Revolving Commitments immediately
prior to such Mandatory Borrowing or contemporaneously
therewith. In the event that any Mandatory Borrowing
cannot for any reason be made on the date otherwise
required above (including, without limitation, as a
result of the commencement of a proceeding under the
Bankruptcy Code with respect to the Borrower), then each
Lender hereby agrees that it shall forthwith purchase (as
of the date the Mandatory Borrowing would otherwise have
occurred, but adjusted for any payments received from the
Borrower on or after such date and prior to such
purchase) from the Swingline Lender such participations
in the outstanding Swingline Loans as shall be necessary
to cause each such Lender to share in such Swingline
Loans ratably based upon its respective Revolving
Commitment Percentage (determined before giving effect to
any termination of the Commitments pursuant to Section
7.2), provided that (A) all interest payable on the
Swingline Loans shall be for the account of the Swingline
Lender until the date as of which the respective
participation is purchased, and (B) at the time any
purchase of participations pursuant to this sentence is
actually made, the purchasing Lender shall be required to
pay to the Swingline Lender interest on the principal
amount of such participation purchased for each day from
and including the day upon which the Mandatory Borrowing
would otherwise have occurred to but excluding the date
of payment for such participation, at the rate equal to,
if paid within two (2) Business Days of the date of the
Mandatory Borrowing, the Federal Funds Effective Rate,
and thereafter at a rate equal to the Alternate Base
Rate.
(c) Interest on Swingline Loans. Subject to the
provisions of Section 2.9, Swingline Loans shall bear interest
at a per annum rate equal to the Alternate Base Rate plus the
Applicable Margin for Revolving Loans that are Alternate Base
Rate Loans. Interest on Swingline Loans shall be payable in
arrears on each Interest Payment Date.
(d) Swingline Note. The Swingline Loans shall be
evidenced by a duly executed promissory note of the Borrower
to the Swingline Lender in the original amount of the
Swingline Committed Amount and substantially in the form of
Schedule 2.3(d).
Section 2.4 Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions
hereof and of the LOC Documents, if any, and any other terms
and conditions which the Issuing Lender may reasonably
require, during the Commitment Period the Issuing Lender shall
issue, and the Lenders shall participate in, Letters of Credit
for the account of the Borrower from time to time upon request
in a form acceptable to the Issuing Lender; provided, however,
that (i) the aggregate amount of LOC Obligations shall not at
any time exceed THIRTY MILLION DOLLARS ($30,000,000) (the "LOC
Committed Amount"), (ii) the sum of the aggregate amount of
Revolving Loans plus Swingline Loans plus LOC Obligations
shall not at any time exceed the Revolving Committed Amount,
(iii) all Letters of Credit shall be denominated in U.S.
Dollars and (iv) Letters of Credit shall be issued for lawful
corporate purposes and may be issued as standby letters of
credit, including in connection with workers' compensation and
other insurance programs, and trade letters of credit. Except
as otherwise expressly agreed upon by all the Lenders, no
Letter of Credit shall have an original expiry date more than
twelve (12) months from the date of issuance; provided,
however, so long as no Default or Event of Default has
occurred and is continuing and subject to the other terms and
conditions to the issuance of Letters of Credit hereunder, the
expiry dates of Letters of Credit may be extended annually or
periodically from time to time on the request of the Borrower
or by operation of the terms of the applicable Letter of
Credit to a date not more than twelve (12) months from the
date of extension; provided, further, that no Letter of
Credit, as originally issued or as extended, shall have an
expiry date extending beyond the Revolving Commitment
Termination Date. Each Letter of Credit shall comply with the
related LOC Documents. The issuance and expiry date of each
Letter of Credit shall be a Business Day. Any Letters of
Credit issued hereunder shall be in a minimum original face
amount of $100,000. First Union shall be the Issuing Lender
on all Letters of Credit issued after the Closing Date.
(b) Notice and Reports. The request for the issuance of
a Letter of Credit shall be submitted to the Issuing Lender at
least five (5) Business Days prior to the requested date of
issuance. The Issuing Lender will promptly upon request
provide to the Administrative Agent for dissemination to the
Lenders a detailed report specifying the Letters of Credit
which are then issued and outstanding and any activity with
respect thereto which may have occurred since the date of any
prior report, and including therein, among other things, the
account party, the beneficiary, the face amount, expiry date
as well as any payments or expirations which may have
occurred. The Issuing Lender will further provide to the
Administrative Agent promptly upon request copies of the
Letters of Credit. The Issuing Lender will provide to the
Administrative Agent promptly upon request a summary report of
the nature and extent of LOC Obligations then outstanding.
(c) Participations. Each Lender upon issuance of a
Letter of Credit shall be deemed to have purchased without
recourse a risk participation from the Issuing Lender in such
Letter of Credit and the obligations arising thereunder and
any collateral relating thereto, in each case in an amount
equal to its LOC Commitment Percentage of the obligations
under such Letter of Credit and shall absolutely,
unconditionally and irrevocably assume, as primary obligor and
not as surety, and be obligated to pay to the Issuing Lender
therefor and discharge when due, its LOC Commitment Percentage
of the obligations arising under such Letter of Credit.
Without limiting the scope and nature of each Lender's
participation in any Letter of Credit, to the extent that the
Issuing Lender has not been reimbursed as required hereunder
or under any LOC Document, each such Lender shall pay to the
Issuing Lender its LOC Commitment Percentage of such
unreimbursed drawing in same day funds on the day of
notification by the Issuing Lender of an unreimbursed drawing
pursuant to the provisions of subsection (d) hereof. Except
with respect to any liability incurred by such Issuing Lender
arising out of the gross negligence or willful misconduct of
the Issuing Lender, the obligation of each Lender to so
reimburse the Issuing Lender shall be absolute and
unconditional and shall not be affected by the occurrence of
a Default, an Event of Default or any other occurrence or
event. Any such reimbursement shall not relieve or otherwise
impair the obligation of the Borrower to reimburse the Issuing
Lender under any Letter of Credit, together with interest as
hereinafter provided.
(d) Reimbursement. In the event of any drawing under
any Letter of Credit, the Issuing Lender will promptly notify
the Borrower and the Administrative Agent. The Borrower shall
reimburse the Issuing Lender on the day of drawing under any
Letter of Credit (either with the proceeds of a Swingline Loan
or Revolving Loan obtained hereunder or otherwise) in same day
funds as provided herein or in the LOC Documents. If the
Borrower shall fail to reimburse the Issuing Lender as
provided herein, the unreimbursed amount of such drawing shall
bear interest at a per annum rate equal to the Alternate Base
Rate plus two percent (2%). Unless the Borrower shall
immediately notify the Issuing Lender and the Administrative
Agent of its intent to otherwise reimburse the Issuing Lender,
the Borrower shall be deemed to have requested a Swingline
Loan, or if and to the extent Swingline Loans shall not be
available, a Revolving Loan in the amount of the drawing as
provided in subsection (e) hereof, the proceeds of which will
be used to satisfy the reimbursement obligations. The
Borrower's reimbursement obligations hereunder shall be
absolute and unconditional under all circumstances
irrespective of any rights of set-off, counterclaim or defense
to payment the Borrower may claim or have against the Issuing
Lender, the Administrative Agent, the Lenders, the beneficiary
of the Letter of Credit drawn upon or any other Person,
including without limitation any defense based on any failure
of the Borrower to receive consideration or the legality,
validity, regularity or unenforceability of the Letter of
Credit. The Issuing Lender will promptly notify the other
Lenders of the amount of any unreimbursed drawing and each
Lender shall promptly pay to the Administrative Agent for the
account of the Issuing Lender in Dollars and in immediately
available funds, the amount of such Lender's LOC Commitment
Percentage of such unreimbursed drawing. Such payment shall
be made on the day such notice is received by such Lender from
the Issuing Lender if such notice is received at or before
2:00 P.M. (Charlotte, North Carolina time), otherwise such
payment shall be made at or before 12:00 Noon (Charlotte,
North Carolina time) on the Business Day next succeeding the
day such notice is received. If such Lender does not pay such
amount to the Issuing Lender in full upon such request, such
Lender shall, on demand, pay to the Administrative Agent for
the account of the Issuing Lender interest on the unpaid
amount during the period from the date of such drawing until
such Lender pays such amount to the Issuing Lender in full at
a rate per annum equal to, if paid within two (2) Business
Days of the date of drawing, the Federal Funds Effective Rate
and thereafter at a rate equal to the Alternate Base Rate.
Each Lender's obligation to make such payment to the Issuing
Lender, and the right of the Issuing Lender to receive the
same, shall be absolute and unconditional, shall not be
affected by any circumstance whatsoever and without regard to
the termination of this Agreement or the Commitments
hereunder, the existence of a Default or Event of Default or
the acceleration of the Borrower Obligations hereunder and
shall be made without any offset, abatement, withholding or
reduction whatsoever.
(e) Repayment with Revolving Loans. On any day on which
the Borrower shall have requested, or been deemed to have
requested, (i) a Swingline Loan borrowing to reimburse a
drawing under a Letter of Credit, the Swingline Lender shall
make the Swingline Loan advance pursuant to the terms of the
request or deemed request in accordance with the provisions
for Swingline Loan advances hereunder, or (ii) a Revolving
Loan to reimburse a drawing under a Letter of Credit, the
Administrative Agent shall give notice to the Lenders that a
Revolving Loan has been requested or deemed requested in
connection with a drawing under a Letter of Credit, in which
case a Revolving Loan borrowing comprised entirely of
Alternate Base Rate Loans (each such borrowing, a "Mandatory
Borrowing") shall be immediately made (without giving effect
to any termination of the Commitments pursuant to Section 7.2)
pro rata based on each Lender's respective Revolving
Commitment Percentage (determined before giving effect to any
termination of the Commitments pursuant to Section 7.2) and in
the case of both clauses (i) and (ii) the proceeds thereof
shall be paid directly to the Issuing Lender for application
to the respective LOC Obligations. Each Lender hereby
irrevocably agrees to make such Revolving Loans immediately
upon any such request or deemed request on account of each
Mandatory Borrowing in the amount and in the manner specified
in the preceding sentence and on the same such date
notwithstanding (i) the amount of Mandatory Borrowing may not
comply with the minimum amount for borrowings of Revolving
Loans otherwise required hereunder, (ii) whether any
conditions specified in Section 4.2 are then satisfied, (iii)
whether a Default or an Event of Default then exists, (iv)
failure for any such request or deemed request for Revolving
Loan to be made by the time otherwise required in Section
2.1(b), (v) the date of such Mandatory Borrowing, or (vi) any
reduction in the Revolving Committed Amount after any such
Letter of Credit may have been drawn upon; provided, however,
that in the event any such Mandatory Borrowing should be less
than the minimum amount for borrowings of Revolving Loans
otherwise provided in Section 2.1(b)(ii), the Borrower shall
pay to the Administrative Agent for its own account an
administrative fee of $500. In the event that any Mandatory
Borrowing cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of
the commencement of a proceeding under the Bankruptcy Code
with respect to the Borrower), then each such Lender hereby
agrees that it shall forthwith fund (as of the date the
Mandatory Borrowing would otherwise have occurred, but
adjusted for any payments received from the Borrower on or
after such date and prior to such purchase) its Participation
Interests in the outstanding LOC Obligations; provided,
further, that in the event any Lender shall fail to fund its
Participation Interest on the day the Mandatory Borrowing
would otherwise have occurred, then the amount of such
Lender's unfunded Participation Interest therein shall bear
interest payable to the Issuing Lender upon demand, at the
rate equal to, if paid within two (2) Business Days of such
date, the Federal Funds Effective Rate, and thereafter at a
rate equal to the Alternate Base Rate.
(f) Modification, Extension. The issuance of any
supplement, modification, amendment, renewal, or extension to
any Letter of Credit shall, for purposes hereof, be treated in
all respects the same as the issuance of a new Letter of
Credit hereunder.
(g) Uniform Customs and Practices. The Issuing Lender
shall have the Letters of Credit be subject to The Uniform
Customs and Practice for Documentary Credits, as published as
of the date of issue by the International Chamber of Commerce
(the "UCP"), in which case the UCP may be incorporated therein
and deemed in all respects to be a part thereof.
Section 2.5 Fees.
(a) Commitment Fee. In consideration of the Revolving
Commitment, the Borrower agrees to pay to the Administrative
Agent for the ratable benefit of the Lenders a commitment fee
(the "Commitment Fee") in an amount equal to the Applicable
Margin per annum on the average daily aggregate Revolving
Committed Amount. The Commitment Fee shall be payable
quarterly in arrears on the 15th day following the last day of
each calendar quarter for the prior calendar quarter.
(b) Letter of Credit Fees. In consideration of the LOC
Commitments, the Borrower agrees to pay to the Issuing Lender
a fee (the "Letter of Credit Fee") equal to the Applicable
Margin per annum on the average daily maximum amount available
to be drawn under each Letter of Credit from the date of
issuance to the date of expiration. In addition to such
Letter of Credit Fee, the Issuing Lender may charge, and
retain for its own account without sharing by the other
Lenders, an additional facing fee of one-eighth of one percent
(1/8%) per annum on the average daily maximum amount available
to be drawn under each such Letter of Credit issued by it.
The Issuing Lender shall promptly pay over to the
Administrative Agent for the ratable benefit of the Lenders
(including the Issuing Lender) the Letter of Credit Fee. The
Letter of Credit 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 Letter of
Credit Fees payable pursuant to subsection (b) hereof, the
Borrower shall pay to the Issuing Lender for its own account
without sharing by the other Lenders the reasonable and
customary charges from time to time of the Issuing Lender with
respect to the amendment, transfer, administration,
cancellation and conversion of, and drawings under, such
Letters of Credit (collectively, the "Issuing Lender Fees").
(d) Administrative Fee. The Borrower agrees to pay to
the Administrative Agent the annual administrative fee as
described in the Fee Letter.
Section 2.6 Commitment Reductions.
(a) Voluntary Reductions. The Borrower shall have the
right to terminate or permanently reduce the unused portion of
the Revolving Committed Amount at any time or from time to
time upon not less than five Business Days' prior notice to
the Administrative Agent (which shall notify the Lenders
thereof as soon as practicable) of each such termination or
reduction, which notice shall specify the effective date
thereof and the amount of any such reduction which shall be in
a minimum amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof and shall be irrevocable and
effective upon receipt by the Administrative Agent, provided
that no such reduction or termination shall be permitted if
after giving effect thereto, and to any prepayments of the
Revolving Loans made on the effective date thereof, the sum of
the then outstanding aggregate principal amount of the
Revolving Loans plus Swingline Loans plus LOC Obligations
would exceed the Revolving Committed Amount.
(b) Revolving Commitment Termination Date. The
Revolving Commitment, the LOC Commitment and the Swingline
Commitment shall automatically terminate on the Revolving
Commitment Termination Date.
Section 2.7 Prepayments.
(a) Optional Prepayments. The Borrower shall have the right
to prepay Loans, in whole or in part from time to time; provided,
however, that each partial prepayment of Revolving Loans shall be
in a minimum principal amount of $1,000,000 and integral multiples
of $100,000 in excess thereof and each prepayment of Swingline Loans
shall be in a minimum principal amount of $100,000 and integral
multiples of $50,000 in excess thereof. The Borrower shall give
three Business Days' irrevocable notice in the case of LIBOR Rate
Loans and one Business Day's irrevocable notice in the case of
Alternate Base Rate Loans, to the Administrative Agent (which shall
notify the Lenders thereof as soon as practicable).
(b) Mandatory Prepayments. If at any time, the aggregate
principal amount of Loans and LOC Obligations shall exceed the
Revolving Committed Amount, the Borrower shall immediately make
payment on the Loans in an amount sufficient to eliminate the
deficiency.
(c) Application. Unless otherwise specified by the Borrower,
prepayments made hereunder shall be applied first to Revolving Loans
which are Base Rate Loans, then to Revolving Loans which are LIBOR
Rate Loans in direct order of Interest Period maturities. All
prepayments under Section 2.7(a) and 2.7(b) shall be subject to
Section 2.17, but otherwise without premium or penalty. Interest on
the principal amount prepaid shall be payable on the next occurring
Interest Payment Date that would have occurred had such loan not
been prepaid or, at the request of the Administrative Agent,
interest on the principal amount prepaid shall be payable on any
date that a prepayment is made hereunder through the date of
prepayment. Amounts prepaid on the Swingline Loan and the Revolving
Loans may be reborrowed in accordance with the terms hereof.
Section 2.8 Minimum Principal Amount of Tranches.
All borrowings, payments and prepayments in respect of
Revolving Loans shall be in such amounts and be made pursuant to
such elections so that after giving effect thereto the aggregate
principal amount of the Revolving Loans comprising any Tranche shall
not be less than $2,500,000 or a whole multiple of $500,000 in
excess thereof.
Section 2.9 Default Rate and Payment Dates.
Upon the occurrence, and during the continuance, of an Event
of Default, the principal of and, to the extent permitted by law,
interest on the Loans and any other amounts owing hereunder or under
the other Credit Documents shall bear interest, payable on demand,
at a per annum rate 2% greater than the rate which would otherwise
be applicable (or if no rate is applicable, whether in respect of
interest, fees or other amounts, then the Alternate Base Rate plus
2%).
Section 2.10 Conversion Options.
(a) The Borrower may, in the case of Revolving Loans
elect from time to time to convert Alternate Base Rate Loans
to LIBOR Rate Loans, by giving the Administrative Agent at
least three Business Days' prior irrevocable written notice of
such election. A form of Notice of Conversion/ Extension is
attached as Schedule 2.10. If the date upon which an
Alternate Base Rate Loan is to be converted to a LIBOR Rate
Loan is not a Business Day, then such conversion shall be made
on the next succeeding Business Day and during the period from
such last day of an Interest Period to such succeeding
Business Day such Loan shall bear interest as if it were an
Alternate Base Rate Loan. All or any part of outstanding
Alternate Base Rate Loans may be converted as provided herein,
provided that (i) no Loan may be converted into a LIBOR Rate
Loan when any Default or Event of Default has occurred and is
continuing and (ii) partial conversions shall be in an
aggregate principal amount of $2,500,000 or a whole multiple
of $500,000 in excess thereof.
(b) Any LIBOR Rate Loans may be continued as such upon
the expiration of an Interest Period with respect thereto by
compliance by the Borrower with the notice provisions
contained in Section 2.10(a); provided, that no LIBOR Rate
Loan may be continued as such when any Default or Event of
Default has occurred and is continuing, in which case such
Loan shall be automatically converted to an Alternate Base
Rate Loan at the end of the applicable Interest Period with
respect thereto. If the Borrower shall fail to give timely
notice of an election to continue a LIBOR Rate Loan, or the
continuation of LIBOR Rate Loans is not permitted hereunder,
such LIBOR Rate Loans shall be automatically converted to
Alternate Base Rate Loans at the end of the applicable
Interest Period with respect thereto.
Section 2.11 Computation of Interest and Fees.
(a) Interest payable hereunder with respect to Alternate
Base Rate Loans shall be calculated on the basis of a year of
365 days (or 366 days, as applicable) for the actual days
elapsed. All other fees, interest and all other amounts
payable hereunder shall be calculated on the basis of a 360
day year for the actual days elapsed. The Administrative
Agent shall as soon as practicable notify the Borrower and the
Lenders of each determination of a LIBOR Rate on the Business
Day of the determination thereof. Any change in the interest
rate on a Loan resulting from a change in the Alternate Base
Rate shall become effective as of the opening of business on
the day on which such change in the Alternate Base Rate shall
become effective. The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this
Agreement shall be conclusive and binding on the Borrower and
the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the computations
used by the Administrative Agent in determining any interest
rate.
Section 2.12 Pro Rata Treatment and Payments.
Each borrowing of Revolving Loans and any reduction of the
Revolving Commitments shall be made pro rata according to the
respective Commitment Percentages of the Lenders. Each payment
under this Agreement or any Note shall be applied, first, to any
fees then due and owing by the Borrower pursuant to Section 2.5,
second, to interest then due and owing in respect of the Notes of
the Borrower and, third, to principal then due and owing hereunder
and under the Notes of the Borrower. Each payment on account of any
fees pursuant to Section 2.5 shall be made pro rata in accordance
with the respective amounts due and owing (except as to the portion
of the Letter of Credit retained by the Issuing Lender and the
Issuing Lender Fees). Each optional prepayment on account of
principal of the Loans shall be applied, to such of the Loans as the
Borrower may designate (to be applied pro rata among the Lenders);
provided, that prepayments made pursuant to Section 2.15 shall be
applied in accordance with such section. Each mandatory prepayment
on account of principal of the Loans shall be applied in accordance
with Section 2.7(b). All payments (including prepayments) to be made
by the Borrower on account of principal, interest and fees shall be
made without defense, set-off or counterclaim (except as provided
in Section 2.18(b)) and shall be made to the Administrative Agent
for the account of the Lenders at the Administrative Agent's office
specified on Schedule 9.2 in Dollars and in immediately available
funds not later than 1:00 P.M. (Charlotte, North Carolina time) on
the date when due. The Administrative Agent shall distribute such
payments to the Lenders entitled thereto promptly upon receipt in
like funds as received. If any payment hereunder (other than
payments on the LIBOR Rate Loans) becomes due and payable on a day
other than a Business Day, such payment shall be extended to the
next succeeding Business Day, and, with respect to payments of
principal, interest thereon shall be payable at the then applicable
rate during such extension. If any payment on a LIBOR Rate Loan
becomes due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business
Day unless the result of such extension would be to extend such
payment into another calendar month, in which event such payment
shall be made on the immediately preceding Business Day.
Section 2.13 Non-Receipt of Funds by the Administrative Agent.
(a) Unless the Administrative Agent shall have been
notified in writing by a Lender prior to the date a Loan is to be
made by such Lender (which notice shall be effective upon receipt)
that such Lender does not intend to make the proceeds of such Loan
available to the Administrative Agent, the Administrative Agent may
assume that such Lender has made such proceeds available to the
Administrative Agent on such date, and the Administrative Agent may
in reliance upon such assumption (but shall not be required to) make
available to the Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the
Administrative Agent, the Administrative Agent shall be able to
recover such corresponding amount from such Lender. If such Lender
does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent
will promptly notify the Borrower, and the Borrower shall
immediately pay such corresponding amount to the Administrative
Agent. The Administrative Agent shall also be entitled to recover
from the Lender or the Borrower, as the case may be, interest on
such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent
to the Borrower to the date such corresponding amount is recovered
by the Administrative Agent at a per annum rate equal to (i) from
the Borrower at the applicable rate for the applicable borrowing
pursuant to the Notice of Borrowing and (ii) from a Lender at the
Federal Funds Effective Rate.
(b) Unless the Administrative Agent shall have been
notified in writing by the Borrower, prior to the date on
which any payment is due from it hereunder (which notice shall
be effective upon receipt) that the Borrower does not intend
to make such payment, the Administrative Agent may assume that
such Borrower has made such payment when due, and the
Administrative Agent may in reliance upon such assumption (but
shall not be required to) make available to each Lender on
such payment date an amount equal to the portion of such
assumed payment to which such Lender is entitled hereunder,
and if the Borrower has not in fact made such payment to the
Administrative Agent, such Lender shall, on demand, repay to
the Administrative Agent the amount made available to such
Lender. If such amount is repaid to the Administrative Agent
on a date after the date such amount was made available to
such Lender, such Lender shall pay to the Administrative Agent
on demand interest on such amount in respect of each day from
the date such amount was made available by the Administrative
Agent to such Lender to the date such amount is recovered by
the Administrative Agent at a per annum rate equal to the
Federal Funds Effective Rate.
(c) A certificate of the Administrative Agent submitted
to the Borrower or any Lender with respect to any amount owing
under this Section 2.13 shall be conclusive in the absence of
manifest error.
Section 2.14 Inability to Determine Interest Rate.
Notwithstanding any other provision of this Agreement, if (a)
the Administrative Agent shall reasonably determine (which
determination shall be conclusive and binding absent manifest error)
that, by reason of circumstances affecting the relevant market,
reasonable and adequate means do not exist for ascertaining LIBOR
for such Interest Period, or (b) the Required Lenders shall
reasonably determine (which determination shall be conclusive and
binding absent manifest error) that the LIBOR Rate does not
adequately and fairly reflect the cost to such Lenders of funding
LIBOR Rate Loans that the Borrower has requested be outstanding as
a LIBOR Rate Loan during such Interest Period, the Administrative
Agent shall forthwith give telephone notice of such determination,
confirmed in writing, to the Borrower, and the Lenders at least two
Business Days prior to the first day of such Interest Period.
Unless the Borrower shall have notified the Administrative Agent
upon receipt of such telephone notice that it wishes to rescind or
modify its request regarding such LIBOR Rate Loans, any Loans that
were requested to be made as LIBOR Rate Loans shall be made as
Alternate Base Rate Loans and any Loans that were requested to be
converted into or continued as LIBOR Rate Loans shall be converted
into Alternate Base Rate Loans. Until any such notice has been
withdrawn by the Administrative Agent, no further Loans shall be
made as, continued as, or converted into, LIBOR Rate Loans for the
Interest Periods so affected.
Section 2.15 Illegality.
Notwithstanding any other provision of this Agreement, if the
adoption of or any change in any Requirement of Law or in the
interpretation or application thereof by the relevant Governmental
Authority to any Lender shall make it unlawful for such Lender or
its LIBOR Lending Office to make or maintain LIBOR Rate Loans as
contemplated by this Agreement or to obtain in the interbank
eurodollar market through its LIBOR Lending Office the funds with
which to make such Loans, (a) such Lender shall promptly notify the
Administrative Agent and the Borrower thereof, (b) the commitment
of such Lender hereunder to make LIBOR Rate Loans or continue LIBOR
Rate Loans as such shall forthwith be suspended until the
Administrative Agent shall give notice that the condition or
situation which gave rise to the suspension shall no longer exist,
and (c) such Lender's Loans then outstanding as LIBOR Rate Loans,
if any, shall be converted on the last day of the Interest Period
for such Loans or within such earlier period as required by law as
Alternate Base Rate Loans. The Borrower hereby agrees promptly to
pay any Lender, upon its demand, any additional amounts necessary
to compensate such Lender for actual and direct costs (but not
including anticipated profits) reasonably incurred by such Lender
in making any repayment in accordance with this Section including,
but not limited to, any interest or fees payable by such Lender to
lenders of funds obtained by it in order to make or maintain its
LIBOR Rate Loans hereunder. A certificate as to any additional
amounts payable pursuant to this Section submitted by such Lender,
through the Administrative Agent, to the Borrower shall be
conclusive in the absence of manifest error. Each Lender agrees to
use reasonable efforts (including reasonable efforts to change its
LIBOR Lending Office) to avoid or to minimize any amounts which may
otherwise be payable pursuant to this Section; provided, however,
that such efforts shall not cause the imposition on such Lender of
any additional costs or legal or regulatory burdens deemed by such
Lender in its sole discretion to be material.
Section 2.16 Requirements of Law.
(a) If the adoption of or any change in any Requirement
of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank
or other Governmental Authority made subsequent to the date
hereof:
(i) shall subject such Lender to any tax of any
kind whatsoever with respect to any Letter of Credit or
any application relating thereto, any LIBOR Rate Loan
made by it, or change the basis of taxation of payments
to such Lender in 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 to be material.
(b) If any Lender shall have reasonably determined that
the adoption of or any change in any Requirement of Law
regarding capital adequacy or in the interpretation or
application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or
directive regarding capital adequacy (whether or not having
the force of law) from any central bank or Governmental
Authority made subsequent to the date hereof does or shall
have the effect of reducing the rate of return on such
Lender's or such corporation's capital as a consequence of its
obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's
or such corporation's policies with respect to capital
adequacy) by an amount reasonably deemed by such Lender to be
material, then from time to time, within fifteen (15) days
after demand by such Lender, the Borrower shall pay to such
Lender such additional amount as shall be certified by such
Lender as being required to compensate it for such reduction.
Such a certificate as to any additional amounts payable under
this Section submitted by a Lender (which certificate shall
include a description of the basis for the computation),
through the Administrative Agent, to the Borrower shall be
conclusive absent manifest error.
(c) The agreements in this Section 2.16 shall survive
the termination of this Agreement and payment of the Notes and
all other amounts payable hereunder.
Section 2.17 Indemnity.
The Borrower hereby agrees to indemnify each Lender and to hold
such Lender harmless from any funding loss or expense which such
Lender may sustain or incur as a consequence of (a) default by the
Borrower in payment of the principal amount of or interest on any
Loan by such Lender in accordance with the terms hereof, (b) default
by the Borrower in accepting a borrowing after the Borrower has
given a notice in accordance with the terms hereof, (c) default by
the Borrower in making any prepayment after the Borrower has given
a notice in accordance with the terms hereof, and/or (d) the making
by the Borrower of a prepayment of a Loan, or the conversion
thereof, on a day which is not the last day of the Interest Period
with respect thereto, in each case including, but not limited to,
any such loss or expense arising from interest or fees payable by
such Lender to lenders of funds obtained by it in order to maintain
its Loans hereunder. A certificate as to any additional amounts
payable pursuant to this Section submitted by any Lender, through
the Administrative Agent, to the Borrower (which certificate must
be delivered to the Administrative Agent within thirty days
following such default, prepayment or conversion) shall be
conclusive in the absence of manifest error. The agreements in this
Section 2.17 shall survive termination of this Agreement and payment
of the Notes and all other amounts payable hereunder.
Section 2.18 Taxes.
(a) All payments made by the Borrower hereunder or under
any Note will be, except as provided in Section 2.18(b), made
free and clear of, and without deduction or withholding for,
any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or
hereafter imposed by any Governmental Authority or by any
political subdivision or taxing authority thereof or therein
with respect to such payments (but excluding any tax imposed
on or measured by the net income or profits of a Lender
pursuant to the laws of the jurisdiction in which it is
organized or the jurisdiction in which the principal office or
applicable lending office of such Lender is located or any
subdivision thereof or therein) and all interest, penalties or
similar liabilities with respect thereto (all such non-excluded taxes,
levies, imposts, duties, fees, assessments or
other charges being referred to collectively as "Taxes"). If
any Taxes are so levied or imposed, the Borrower agrees to pay
the full amount of such Taxes, and such additional amounts as
may be necessary so that every payment of all amounts due
under this Agreement or under any Note, after withholding or
deduction for or on account of any Taxes, will not be less
than the amount provided for herein or in such Note. The
Borrower will furnish to the Administrative Agent as soon as
practicable after the date the payment of any Taxes is due
pursuant to applicable law certified copies (to the extent
reasonably available and required by law) of tax receipts
evidencing such payment by the Borrower. The Borrower agrees
to indemnify and hold harmless each Lender, and reimburse such
Lender upon its written request, for the amount of any Taxes
so levied or imposed and paid by such Lender.
(b) Each Lender that is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code)
agrees to deliver to the Borrower and the Administrative Agent
on or prior to the Closing Date, or in the case of a Lender
that is an assignee or transferee of an interest under this
Agreement pursuant to Section 9.6(d) (unless the respective
Lender was already a Lender hereunder immediately prior to
such assignment or transfer), on the date of such assignment
or transfer to such Lender, (i) if the Lender is a "bank"
within the meaning of Section 881(c)(3)(A) of the Code, two
accurate and complete original signed copies of Internal
Revenue Service Form W-8BEN (or successor forms) certifying
such Lender's entitlement to a complete exemption from United
States withholding tax with respect to payments to be made
under this Agreement and under any Note, or (ii) if the Lender
is not a "bank" within the meaning of Section 881(c)(3)(A) of
the Code, either Internal Revenue Service Form W-8ECI or Form
W-8BEN as set forth in clause (i) above, or (x) a certificate
substantially in the form of Schedule 2.18 (any such
certificate, a "2.18 Certificate") and (y) two accurate and
complete original signed copies of Internal Revenue Service
Form W-8ECI or W-8BEN (or successor form) certifying such
Lender's entitlement to an exemption from United States
withholding tax with respect to payments of interest to be
made under this Agreement and under any Note. In addition,
each Lender agrees that it will deliver upon the Borrower's
request updated versions of the foregoing, as applicable,
whenever the previous certification has become obsolete or
inaccurate in any material respect, together with such other
forms as may be required in order to confirm or establish the
entitlement of such Lender to a continued exemption from or
reduction in United States withholding tax with respect to
payments under this Agreement and any Note. Notwithstanding
anything to the contrary contained in Section 2.18(a), but
subject to the immediately succeeding sentence, (x) the
Borrower shall be entitled, to the extent it is required to do
so by law, to deduct or withhold Taxes imposed by the United
States (or any political subdivision or taxing authority
thereof or therein) from interest, fees or other amounts
payable hereunder for the account of any Lender which is not
a United States person (as such term is defined in Section
7701(a)(30) of the Code) for U.S. Federal income tax purposes
to the extent that such Lender has not provided to the
Borrower U.S. Internal Revenue Service Forms that establish a
complete exemption from such deduction or withholding and (y)
the Borrower shall not be obligated pursuant to Section
2.18(a) hereof to gross-up payments to be made to a Lender in
respect of Taxes imposed by the United States if (I) such
Lender has not provided to the Borrower the Internal Revenue
Service Forms required to be provided to the Borrower pursuant
to this Section 2.18(b) or (II) in the case of a payment,
other than interest, to a Lender described in clause (ii)
above, to the extent that such Forms do not establish a
complete exemption from withholding of such Taxes.
Notwithstanding anything to the contrary contained in the
preceding sentence or elsewhere in this Section 2.18, the
Borrower agrees to pay additional amounts and to indemnify
each Lender in the manner set forth in Section 2.18(a)
(without regard to the identity of the jurisdiction requiring
the deduction or withholding) in respect of any amounts
deducted or withheld by it as described in the immediately
preceding sentence as a result of any changes after the
Closing Date in any applicable law, treaty, governmental rule,
regulation, guideline or order, or in the interpretation
thereof, relating to the deducting or withholding of Taxes.
(c) Each Lender agrees to use reasonable efforts
(including reasonable efforts to change its Domestic Lending
Office or LIBOR Lending Office, as the case may be) to avoid
or to minimize any amounts which might otherwise be payable
pursuant to this Section; provided, however, that such efforts
shall not cause the imposition on such Lender of any
additional costs or legal or regulatory burdens deemed by such
Lender in its sole discretion to be material.
(d) If the Borrower pays any additional amount pursuant
to this Section 2.18 with respect to a Lender, such Lender
shall use reasonable efforts to obtain a refund of tax or
credit against its tax liabilities on account of such payment;
provided that such Lender shall have no obligation to use such
reasonable efforts if either (i) it is in an excess foreign
tax credit position or (ii) it believes in good faith, in its
sole discretion, that claiming a refund or credit would cause
adverse tax consequences to it. In the event that such Lender
receives such a refund or credit, such Lender shall pay to the
Borrower an amount that such Lender reasonably determines is
equal to the net tax benefit obtained by such Lender as a
result of such payment by the Borrower. In the event that no
refund or credit is obtained with respect to the Borrower's
payments to such Lender pursuant to this Section 2.18, then
such Lender shall upon request provide a certification that
such Lender has not received a refund or credit for such
payments. Nothing contained in this Section 2.18 shall
require a Lender to disclose or detail the basis of its
calculation of the amount of any tax benefit or any other
amount or the basis of its determination referred to in the
proviso to the first sentence of this Section 2.18 to the
Borrower or any other party.
(e) The agreements in this Section 2.18 shall survive
the termination of this Agreement and the payment of the Notes
and all other amounts payable hereunder.
Section 2.19 Indemnification; Nature of Issuing Lender's Duties.
(a) In addition to its other obligations under Section
2.4, the Borrower hereby agrees to protect, indemnify, pay and
save the Issuing Lender harmless from and against any and all
claims, demands, liabilities, damages, losses, costs, charges
and expenses (including reasonable attorneys' fees) that the
Issuing Lender may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of
Credit or (ii) the failure of the Issuing Lender to honor a
drawing under a Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or
future de jure or de facto government or governmental
authority (all such acts or omissions, herein called
"Government Acts").
(b) As between the Borrower and the Issuing Lender, the
Borrower shall assume all risks of the acts, omissions or
misuse of any Letter of Credit by the beneficiary thereof.
Except with respect to its own willful misconduct or gross
negligence, the Issuing Lender shall not be responsible: (i)
for the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in
connection with the application for and issuance of any Letter
of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign
any Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, that may prove to be
invalid or ineffective for any reason; (iii) for failure of
the beneficiary of a Letter of Credit to comply fully with
conditions required in order to draw upon a Letter of Credit;
(iv) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise, whether or not they be in
cipher; (v) for errors in interpretation of technical terms;
(vi) for any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under a
Letter of Credit or of the proceeds thereof; and (vii) for any
consequences arising from causes beyond the control of the
Issuing Lender, including, without limitation, any Government
Acts. None of the above shall affect, impair, or prevent the
vesting of the Issuing Lender's rights or powers hereunder.
(c) In furtherance and extension and not in limitation
of the specific provisions hereinabove set forth, any action
taken or omitted by the Issuing Lender, under or in connection
with any Letter of Credit or the related certificates, if
taken or omitted in good faith, shall not put such Issuing
Lender under any resulting liability to the Borrower. It is
the intention of the parties that this Agreement shall be
construed and applied to protect and indemnify the Issuing
Lender against any and all risks involved in the issuance of
the Letters of Credit, all of which risks are hereby assumed
by the Borrower, including, without limitation, any and all
risks of the acts or omissions, whether rightful or wrongful,
of any Government Authority. The Issuing Lender shall not, in
any way, be liable for any failure by the Issuing Lender or
anyone else to pay any drawing under any Letter of Credit as
a result of any Government Acts or any other cause beyond the
control of the Issuing Lender.
(d) Nothing in this Section 2.19 is intended to limit
the reimbursement obligation of the Borrower contained in
Section 2.4(d) hereof. The obligations of the Borrower under
this Section 2.19 shall survive the termination of this
Agreement. No act or omissions of any current or prior
beneficiary of a Letter of Credit shall in any way affect or
impair the rights of the Issuing Lender to enforce any right,
power or benefit under this Agreement.
(e) Notwithstanding anything to the contrary contained
in this Section 2.19, the Borrower shall have no obligation to
indemnify any Issuing Lender in respect of any liability
incurred by such Issuing Lender arising out of the gross
negligence or willful misconduct of the Issuing Lender
(including action not taken by an Issuing Lender), as
determined by a court of competent jurisdiction.
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 Borrower hereby
represents and warrants to the Administrative Agent and to each
Lender that:
Section 3.1 Financial Condition.
The balance sheets and the related statements of income and of
cash flows of the Borrower for fiscal year 1999 audited by Deloitte
& Touche LLP are complete and correct and present fairly the
financial condition of the Borrower and its Subsidiaries on a
consolidated basis as of such dates. All such financial statements,
including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the
periods involved (except as disclosed therein).
Section 3.2 No Change.
Since September 30, 1999 (and after delivery of annual audited
financial statements in accordance with Section 5.1(a), from the
date of the most recently delivered annual audited financial
statements) there has been no development or event which has had or
could reasonably be expected to have a Material Adverse Effect.
Section 3.3 Corporate Existence; Compliance with Law.
Each of the Borrower and its Subsidiaries (a) is duly
organized, validly existing and in good standing under the laws of
the jurisdiction of its organization, (b) has the requisite power
and authority and the legal right to own and operate all its
material property, to lease the material property it operates as
lessee and to conduct the business in which it is currently engaged,
(c) is duly qualified to conduct business and in good standing under
the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification except to the extent that the failure to so qualify
or be in good standing could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect and (d) is in compliance
with all Requirements of Law (including without limitation,
environmental laws), except to the extent that the failure to comply
therewith could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect.
Section 3.4 Corporate Power; Authorization; Enforceable Obligations.
The Borrower has the full power and authority and the legal
right to make, deliver and perform the Credit Documents to which it
is party and has taken all necessary corporate action to authorize
the execution, delivery and performance by it of the Credit
Documents to which it is party. No consent or authorization of,
filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required in connection
with the borrowings hereunder or with the execution, delivery or
performance of any Credit Document by the Borrower (other than those
which have been obtained) or with the validity or enforceability of
any Credit Document against the Borrower. Each Credit Document to
which it is a party has been duly executed and delivered on behalf
of the Borrower. Each Credit Document to which it is a party
constitutes a legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity
or at law).
Section 3.5 No Legal Bar; No Default.
The execution, delivery and performance of the Credit
Documents, the borrowings thereunder and the use of the proceeds of
the Loans will not violate any material Requirement of Law or any
material Contractual Obligation of the Borrower or its Subsidiaries
(except those as to which waivers or consents have been obtained),
and will not result in, or require, the creation or imposition of
any Lien on any of its or their respective properties or revenues
pursuant to any Requirement of Law or Contractual Obligation other
than any Liens arising under or contemplated in connection with the
Credit Documents. Neither the Borrower nor any of its Subsidiaries
is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to
have a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.
Section 3.6 No Material Litigation.
Except as set forth in Schedule 3.6, no litigation,
investigation or proceeding (including without limitation, any
environmental proceeding) of or before any arbitrator or
Governmental Authority is pending or, to the best knowledge of the
Borrower, threatened by or against the Borrower or any of its
Subsidiaries or against any of its or their respective properties
or revenues (a) with respect to the Credit Documents or any Loan or
any of the transactions contemplated hereby, or (b) which, if
adversely determined, could reasonably be expected to have a
Material Adverse Effect.
Section 3.7 Investment Company Act.
The Borrower is not an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
Section 3.8 Margin Regulations.
No part of the proceeds of any Loan hereunder will be used
directly or indirectly for any purpose which violates, or which
would be inconsistent with, the provisions of Regulation T, U or X
of the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect. The Borrower and its
Subsidiaries taken as a group do not own "margin stock" except as
identified in the financial statements referred to in Section 3.1
and the aggregate value of all "margin stock" owned by the Borrower
and its Subsidiaries taken as a group does not exceed 25% of the
value of their assets.
Section 3.9 ERISA.
Except as set forth in Schedule 3.9, neither a Reportable Event
nor an "accumulated funding deficiency" (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during
the five-year period prior to the date on which this representation
is made or deemed made with respect to any Plan, and each Plan has
complied in all material respects with the applicable provisions of
ERISA and the Code, except to the extent that any such occurrence
or failure to comply would not reasonably be expected to have a
Material Adverse Effect. No termination of a Single Employer Plan
has occurred resulting in any liability that has remained
underfunded, and no Lien in favor of the PBGC or a Plan has arisen,
during such five-year period which could reasonably be expected to
have a Material Adverse Effect. The present value of all accrued
benefits under each Single Employer Plan (based on those assumptions
used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or
deemed made, exceed the value of the assets of such Plan allocable
to such accrued benefits by an amount which, as determined in
accordance with GAAP, could reasonably be expected to have a
Material Adverse Effect. Neither the Borrower nor any Commonly
Controlled Entity is currently subject to any liability for a
complete or partial withdrawal from a Multiemployer Plan which could
reasonably be expected to have a Material Adverse Effect.
Section 3.10 Environmental Matters.
Except as set forth in Schedule 3.10, or matters that could not
be reasonably expected to have a Material Adverse Effect:
(a) The facilities and properties owned, leased or
operated by the Borrower and its Subsidiaries (the
"Properties") do not contain any Materials of Environmental
Concern in amounts or concentrations which (i) constitute a
violation of, or (ii) could give rise to liability under, any
Environmental Law.
(b) The Properties and all operations of the Borrower
and its Subsidiaries at the Properties are in compliance, and
have in the last five years been in compliance, in all
material respects with all applicable Environmental Laws, and
there is no contamination at, under or about the Properties
requiring remediation under Environmental Law or in violation
of any Environmental Law with respect to the Properties or the
business operated by the Borrower or any of its Subsidiaries
(the "Business").
(c) Neither the Borrower nor any Subsidiary of the
Borrower has received any written or actual notice of
violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the
Properties or the Business, nor does the Borrower or any of
its Subsidiaries have knowledge or reason to believe that any
such notice will be received or is being threatened.
(d) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation
of, or in a manner or to a location which could reasonably be
expected to give rise to liability under any Environmental
Law, nor have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any
of the Properties in violation of, or in a manner that could
give rise to liability under, any applicable Environmental
Law.
(e) No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of the
Borrower, threatened, under any Environmental Law to which the
Borrower or any Subsidiary is or will be named as a party with
respect to the Properties or the Business, nor are there any
consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental
Law with respect to the Properties or the Business.
(f) There has been no unremedied release or threat of
release of Materials of Environmental Concern at or from the
Properties, or arising from or related to the operations of
the Borrower or any of its Subsidiaries in connection with the
Properties or otherwise in connection with the Business, in
violation of or in amounts or in a manner that could
reasonably be expected to give rise to liability under
Environmental Laws.
Section 3.11 Purpose of Loans.
The proceeds of the Loans hereunder shall be used solely by the
Borrower to (a) refinance existing Indebtedness of the Borrower and
to pay certain fees and expenses related thereto, and (b) provide
for working capital and other general corporate purposes. The
Letters of Credit shall be used only for or in connection with
appeal bonds, reimbursement obligations arising in connection with
surety and reclamation bonds, reinsurance, domestic or international
trade transactions and obligations not otherwise aforementioned
relating to transactions entered into by the applicable account
party in the ordinary course of business.
Section 3.12 Subsidiaries.
Set forth on Schedule 3.12 is a complete and accurate list of
all Subsidiaries of the Borrower. Information on the attached
Schedule includes state of incorporation and the percentage of
outstanding shares of each class of stock owned by the Borrower.
Section 3.13 Ownership.
Each of the Borrower and its Subsidiaries is the owner of, and
has good and marketable title to, all of its respective material
assets, except as may be permitted pursuant to Section 6.13 hereof,
and none of such assets is subject to any Lien other than Permitted
Liens.
Section 3.14 Indebtedness.
Except as otherwise permitted under Section 6.1, the Borrower
and its Subsidiaries have no Indebtedness.
Section 3.15 Taxes.
Each of the Borrower and its Subsidiaries has filed, or caused
to be filed, all tax returns (federal, state, local and foreign)
required to be filed and paid (a) all amounts of taxes shown thereon
to be due (including interest and penalties) and (b) all other
taxes, fees, assessments and other governmental charges (including
mortgage recording taxes, documentary stamp taxes and intangibles
taxes) owing by it, except for such taxes (i) which are not yet
delinquent or (ii) that are being contested in good faith and by
proper proceedings, and against which adequate reserves are being
maintained in accordance with GAAP. Neither the Borrower nor any
of its Subsidiaries is aware as of the Closing Date of any proposed
tax assessments against it or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect.
Section 3.16 Investments.
All Investments of each of the Borrower and its Subsidiaries
are Permitted Investments.
Section 3.17 No Burdensome Restrictions.
None of the Borrower or any of its Subsidiaries is a party to
any agreement or instrument or subject to any other obligation or
any charter or corporate restriction or any provision of any
applicable law, rule or regulation which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect.
Section 3.18 Brokers' Fees.
None of the Borrower or any of its Subsidiaries has any
obligation to any Person in respect of any finder's, broker's,
investment banking or other similar fee in connection with any of
the transactions contemplated under the Credit Documents other than
the closing and other fees payable pursuant to this Credit
Agreement.
Section 3.19 Labor Matters.
There are no collective bargaining agreements or Multiemployer
Plans covering the employees of the Borrower or any of its
Subsidiaries as of the Closing Date, other than as set forth in
Schedule 3.19 hereto. Neither the Borrower nor any of its
Subsidiaries (a) has suffered any strikes, walkouts, work stoppages
or other material labor difficulty within the last five years, other
than as set forth in Schedule 3.19 hereto or (b) has knowledge of
any pending strike, walkout or work stoppage.
Section 3.20 Accuracy and Completeness of Information.
All factual information heretofore, contemporaneously or
hereafter furnished by or on behalf of the Borrower or any of its
Subsidiaries to the Administrative Agent or any Lender for purposes
of or in connection with this Agreement or any other Credit
Document, or any transaction contemplated hereby or thereby, is or
will be true and accurate in all material respects and not
incomplete by omitting to state any material fact necessary to make
such information not misleading. There is no fact now known to the
Borrower or any of its Subsidiaries which has, or could reasonably
be expected to have, a Material Adverse Effect which fact has not
been set forth herein, in the financial statements of the Borrower
and its Subsidiaries furnished to the Administrative Agent and/or
the Lenders, or in any certificate, opinion or other written
statement made or furnished by the Borrower to the Administrative
Agent and/or the Lenders.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.1 Conditions to Closing Date and Initial
Revolving Loans.
This Agreement shall become effective upon, and the obligation
of each Lender to make the initial Revolving Loans on the Closing
Date is subject to, the satisfaction of the following conditions
precedent:
(a) Execution of Agreement. The Administrative Agent
shall have received counterparts of this Agreement, executed
by a duly authorized officer of each party hereto, (ii) for
the account of each Lender, Revolving Notes and for the
account of the Swingline Lender, a Swingline Note.
(b) Authority Documents. The Administrative Agent shall
have received the following:
(i) Articles of Incorporation. Copies of the
articles of incorporation or other charter documents, as
applicable, of the Borrower certified to be true and
complete as of a recent date by the appropriate
governmental authority of the state of its incorporation.
(ii) Resolutions. Copies of resolutions of the
board of the executive committee of the Borrower of the
Borrower approving and adopting the Credit Documents, the
transactions contemplated therein and authorizing
execution and delivery thereof, certified by an officer
of the Borrower as of the Closing Date to be true and
correct and in force and effect as of such date.
(iii) Bylaws. A copy of the bylaws of the
Borrower certified by an officer of the Borrower as of
the Closing Date to be true and correct and in force and
effect as of such date.
(iv) Good Standing. Copies of (A) certificates of
good standing, existence or its equivalent with respect
to the Borrower certified as of a recent date by the
appropriate governmental authorities of the state of
incorporation and each other state in which the failure
to so qualify and be in good standing could reasonably be
expected to have a Material Adverse Effect on the
business or operations of the Borrower and its
Subsidiaries in such state and (B) a certificate
indicating payment of all corporate franchise taxes
certified as of a recent date by the appropriate
governmental taxing authorities.
(v) Incumbency. An incumbency certificate of the
Borrower 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 Martin, Ade,
Birchfield & Mickler, P.A., dated the Closing Date and
addressed to the Administrative Agent and the Lenders, in form
and substance acceptable to the Administrative Agent.
(d) Fees and Expenses. The Administrative Agent shall
have received all fees and expenses owed by the Borrower to
the Lenders and the Administrative Agent.
(e) Litigation. There shall not exist any pending
litigation or investigation affecting or relating to the
Borrower or any of its Subsidiaries, this Agreement and the
other Credit Documents that in the reasonable judgment of the
Administrative Agent could materially adversely affect the
Borrower or any of its Subsidiaries, this Agreement and the
other Credit Documents, that has not been settled, dismissed,
vacated, discharged or terminated prior to the Closing Date.
(f) Corporate Structure. The corporate capital and
ownership structure of the Borrower and its Subsidiaries shall
be as described in Schedule 3.12.
(g) Government Consent. The Administrative Agent shall
have received evidence that all governmental, shareholder and
material third party consents and approvals necessary in
connection with the financings and other transactions
contemplated hereby have been obtained and all applicable
waiting periods have expired without any action being taken by
any authority that could restrain, prevent or impose any
material adverse conditions on such transactions or that could
seek or threaten any of the foregoing.
(h) Compliance with Laws. The financings and other
transactions contemplated hereby shall be in compliance with
all applicable laws and regulations (including all applicable
securities and banking laws, rules and regulations).
(i) Bankruptcy. There shall be no bankruptcy or
insolvency proceedings with respect to the Borrower or any of
its Subsidiaries.
(j) Financial Statements. The Administrative Agent
shall have received (i) copies of the financial statements
referred to in Section 3.1 hereof and (ii) unaudited interim
consolidated financial statements of the Borrower for each
fiscal quarterly period ended after September 30, 1999.
(k) Termination of Existing Indebtedness. All existing
Indebtedness for borrowed money of the Borrower and its
Subsidiaries (other than the Indebtedness listed on Schedule
6.1(b)) shall have been repaid in full and terminated.
(l) Account Designation Letter. The Administrative
Agent shall have received the executed Account Designation
Letter in the form of Schedule 1.1(a) hereto.
(m) 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 Borrower herein or which are
contained in any certificate furnished at any time under or in
connection herewith shall be true and correct in all material
respects on and as of the date of such Extension of Credit as
if made on and as of such date.
(b) No Default or Event of Default. No Default or Event
of Default shall have occurred and be continuing on such date
or after giving effect to the Extension of Credit to be made
on such date unless such Default or Event of Default shall
have been waived in accordance with this Agreement.
(c) Compliance with Commitments. Immediately after
giving effect to the making of any such Extension of Credit
(and the application of the proceeds thereof), (i) the sum of
the aggregate principal amount of outstanding Revolving Loans
plus Swingline Loans plus LOC Obligations shall not exceed the
Revolving Committed Amount, (ii) the LOC Obligations shall not
exceed the LOC Committed Amount and (iii) the Swingline Loans
shall not exceed the Swingline Commitment.
(d) Additional Conditions to Revolving Loans. If such
Loan is made pursuant to Section 2.1, all conditions set forth
in such Section shall have been satisfied.
(e) Additional Conditions to Swingline Loan. If such
Loan is made pursuant to Section 2.3, all conditions set forth
in such Section shall have been satisfied.
(f) Additional Conditions to Letters of Credit. If such
Extension of Credit is made pursuant to Section 2.4, all
conditions set fort in such Section shall have been satisfied.
Each request for an Extension of Credit and each acceptance by
the Borrower of any such Extension of Credit shall be deemed to
constitute a representation and warranty by the Borrower as of the
date of such Extension of Credit that the applicable conditions in
paragraphs (a) through (f) of this Section have been satisfied.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower hereby covenants and agrees 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 Borrower Obligations, together with interest,
Commitment Fees and all other amounts owing to the Administrative
Agent or any Lender hereunder, are paid in full, the Borrower shall,
and shall cause each of its Subsidiaries (other than in the case of
Sections 5.1, 5.2 or 5.7 hereof), to:
Section 5.1 Financial Statements.
Furnish to the Administrative Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available,
but in any event within ninety (90) days after the end of each
fiscal year of the Borrower, a copy of the consolidated and
consolidating balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such fiscal year
and the related consolidated and consolidating statements of
income and retained earnings and of cash flows of the Borrower
and its consolidated Subsidiaries for such year, audited by
Deloitte & Touche LLP, or other independent certified public
accountants selected by Borrower and satisfactory to the
Administrative Agent, setting forth in each case in
comparative form the figures for the previous year, reported
on without a "going concern" or like qualification or
exception, or qualification indicating that the scope of the
audit was inadequate to permit such independent certified
public accountants to certify such financial statements
without such qualification;
(b) Quarterly Financial Statements. As soon as
available and in any event within sixty (60) days after the
end of each of the first three fiscal quarters of the
Borrower, a company-prepared consolidated and consolidating
balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such period and related company
prepared consolidated and consolidating statements of income
and retained earnings and of cash flows for the Borrower and
its consolidated Subsidiaries for such quarterly period and
for the portion of the fiscal year ending with such period, in
each case setting forth in comparative form consolidated
figures for the corresponding period or periods of the
preceding fiscal year (subject to normal recurring year-end
audit adjustments); and
(c) Annual Budget Plan. As soon as available, but in
any event within sixty (60) days after the end of each fiscal
year, a copy of the detailed annual budget and cash flow
projections or plan of the Borrower and its consolidated
Subsidiaries for the next fiscal year prepared on a quarterly
basis, in form and detail reasonably acceptable to the
Administrative Agent and the Required Lenders, together with
a summary of the material assumptions made in the preparation
of such annual budget or plan;
all such financial statements to be complete and correct in all
material respects and to be prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods
reflected therein and further accompanied by a description of, and
an estimation of the effect on the financial statements on account
of, a change, if any, in the application of accounting principles
as provided in Section 1.3.
Section 5.2 Certificates; Other Information.
Furnish to the Administrative Agent and each of the Lenders:
(a) concurrently with the delivery of the financial
statements referred to in Section 5.1(a) above, a certificate
of the independent certified public accountants reporting on
such financial statements stating that in making the
examination necessary therefor no knowledge was obtained of
any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial
statements referred to in Sections 5.1(a) and 5.1(b) above, a
certificate of a Responsible Officer stating that, to the best
of such Responsible Officer's knowledge, the Borrower has
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 that such Responsible Officer has obtained no
knowledge of any Default or Event of Default except as
specified in such certificate and such certificate shall
include the calculations in reasonable detail required to
indicate compliance with Section 5.8 as of the last day of
such period;
(c) within thirty (30) days after the same are sent,
copies of all reports (other than those otherwise provided
pursuant to Section 5.1 and those which are of a promotional
nature) and other financial information which the Borrower
sends to its stockholders, and within thirty days after the
same are filed, copies of all financial statements and non
confidential reports which the Borrower may make to, or file
with the Securities and Exchange Commission or any successor
or analogous Governmental Authority;
(d) promptly upon receipt thereof, a copy of any other
report or "management letter" submitted by independent
accountants to the Borrower or any of its Subsidiaries in
connection with any annual, interim or special audit of the
books of such Person; and
(e) promptly, such additional financial and other
information as the Administrative Agent, on behalf of any
Lender, may from time to time reasonably request.
Section 5.3 Payment of Obligations.
Pay, discharge or otherwise satisfy at or before maturity or
before they become delinquent, as the case may be, in accordance
with industry practice (subject, where applicable, to specified
grace periods) all its material obligations of whatever nature and
any additional costs that are imposed as a result of any failure to
so pay, discharge or otherwise satisfy such obligations, except when
the amount or validity of such obligations and costs is currently
being contested in good faith by appropriate proceedings and
reserves, if applicable, in conformity with GAAP with respect
thereto have been provided on the books of the Borrower or its
Subsidiaries, as the case may be.
Section 5.4 Conduct of Business and Maintenance of
Existence.
Continue to engage in business of the same general type as now
conducted by it on the Closing Date and any reasonable extensions
thereof and preserve, renew and keep in full force and effect its
corporate existence and cooperative status and take all reasonable
action to maintain all rights, privileges and franchises necessary
or desirable in the normal conduct of its business; comply with all
Contractual Obligations and Requirements of Law applicable to it
except to the extent that failure to comply therewith could not, in
the aggregate, reasonably be expected to have a Material Adverse
Effect.
Section 5.5 Maintenance of Property; Insurance.
(a) Keep all material property useful and necessary in
its business in good working order and condition (ordinary
wear and tear and obsolescence excepted);
(b) Maintain with financially sound and reputable
insurance companies insurance on all its material property in
at least such amounts and against at least such risks as are
usually insured against in the same general area by companies
engaged in the same or a similar business (including, without
limitation, hazard and business interruption coverage); and
furnish to the Administrative Agent, upon written request,
full information as to the insurance carried; provided,
however, that the Borrower and its Subsidiaries may maintain
self insurance plans to the extent companies of similar size
and in similar businesses do so or in accordance with
Borrower's present practice.
Section 5.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true
and correct entries in conformity with GAAP and all Requirements of
Law shall be made of all dealings and transactions in relation to
its businesses and activities; and permit, during regular business
hours and upon reasonable notice by the Administrative Agent or if
a default exists hereunder, any Lender, the Administrative Agent or
any Lender to visit and inspect any of its properties and examine
and make abstracts from any of its books and records (other than
materials protected by the attorney-client privilege and materials
which the Borrower may not disclose without violation of a
confidentiality obligation binding upon it) at any reasonable time
and to discuss the business, operations, properties and financial
and other condition of the Borrower and its Subsidiaries with
officers and employees of the Borrower and its Subsidiaries and with
its independent certified public accountants.
Section 5.7 Notices.
Give notice in writing to the Administrative Agent (which shall
promptly transmit such notice to each Lender) of:
(a) within two (2) Business Days after the Borrower
knows or has reason to know thereof, the occurrence of any
Default or Event of Default;
(b) promptly, any default or event of default under any
Contractual Obligation of the Borrower or any of its
Subsidiaries which could reasonably be expected to have a
Material Adverse Effect;
(c) promptly, any litigation, or any investigation or
proceeding known to the Borrower, affecting the Borrower or
any of its Subsidiaries which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect;
(d) as soon as possible and in any event within thirty
(30) days after the Borrower knows or has reason to know
thereof: (i) the occurrence or expected occurrence of any
Reportable Event with respect to any Plan, a failure to make
any required contribution to a Plan, the creation of any Lien
in favor of the PBGC (other than a Permitted Lien) or a Plan
or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the institution
of proceedings or the taking of any other action by the PBGC
or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
terminating, Reorganization or Insolvency of, any Plan; and
(e) promptly, any other development or event which could
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer setting forth details of the
occurrence referred to therein and stating what action the Borrower
proposes to take with respect thereto. In the case of any notice
of a Default or Event of Default, the Borrower shall specify that
such notice is a Default or Event of Default notice on the face
thereof.
Section 5.8 Financial Covenants.
Commencing on the day immediately following the Closing Date,
the Borrower shall, and shall cause each of its Subsidiaries to,
comply with the following financial covenants:
(a) Consolidated Funded Debt to Consolidated Total
Capitalization Ratio. The Consolidated Funded Debt to
Consolidated Total Capitalization Ratio, as of the last day of
each fiscal quarter of the Borrower and its Subsidiaries,
shall be less than or equal to 0.50 to 1.0.
(b) Interest Coverage Ratio. The Interest Coverage
Ratio, as of the last day of each fiscal quarter of the
Borrower, shall be greater than or equal to 2.5 to 1.0.
Section 5.9 Compliance with Law.
The Borrower will, and will cause each of its Subsidiaries to,
comply with all laws, rules, regulations and orders, and all
applicable restrictions imposed by all Governmental Authorities Law
(including without limitation, environmental laws), applicable to
it and its Property if noncompliance with any such law, rule,
regulation, order or restriction could reasonably be expected to
have a Material Adverse Effect.
Section 5.10 Environmental Laws.
(a) Comply in all material respects with, and ensure
compliance in all material respects by all tenants and
subtenants, if any, with, all applicable Environmental Laws
and obtain and comply in all material respects with and
maintain, and ensure that all tenants and subtenants obtain
and comply in all material respects with and maintain, any and
all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws except, in
each case, to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect;
(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other
actions required under Environmental Laws except to the extent
the failure to do so could not reasonably be expected to
result in a Material Adverse Effect and promptly comply in all
material respects with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws except
to the extent that the same are being contested in good faith
by appropriate proceedings and the pendency of such
proceedings could not reasonably be expected to have a
Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the
Administrative Agent and the Lenders, and their respective
employees, agents, officers and directors, from and against
any and all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or
nature known or unknown, contingent or otherwise, arising out
of, or in any way relating to the violation of, noncompliance
with or liability under, any Environmental Law applicable to
the operations of the Borrower, any of its Subsidiaries or the
Properties, or any orders, requirements or demands of
Governmental Authorities related thereto, including, without
limitation, reasonable attorney's and consultant's fees,
investigation and laboratory fees, response costs, court costs
and litigation expenses, except to the extent that any of the
foregoing arise out of the gross negligence, bad faith or
willful misconduct of any indemnified person. The agreements
in this paragraph shall survive repayment of the Notes and all
other amounts payable hereunder.
Section 5.11 Consolidated Total Tangible Assets.
At all times the Borrower shall directly own (not
indirectly through its Subsidiaries) tangible assets which
constitute more than fifty percent (50%) of the Consolidated
Total Tangible Assets of the Borrower and its Subsidiaries.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that on the Closing
Date, and thereafter for so long as this Credit Agreement is in
effect and until the Commitments have terminated, no Note remains
outstanding and unpaid and the Borrower Obligations, together with
interest, Commitment Fees and all other amounts owing to the
Administrative Agent or any Lender hereunder, are paid in full, the
Borrower will not, nor will it permit any of its Subsidiaries to,
either directly or indirectly:
Section 6.1 Indebtedness.
Incur, create, assume or permit to exist any other Indebtedness
or liability on account of borrowed money, represented by any notes,
bonds, debentures or similar obligations, or on account of the
deferred purchase price of any property, or any other deposits,
advance or progress payments under contracts, except:
(a) Indebtedness arising or existing under this
Credit Agreement or, the other Credit Documents;
(b) Indebtedness of the Borrower and its Subsidiaries
existing as of the Closing Date (and set forth in Schedule
6.1(b) hereto) and renewals, refinancings and extensions
thereof in a principal amount not in excess of that
outstanding as of the date of such renewal, refinancing or
extension;
(c) Indebtedness and obligations owing under Hedging
Agreements relating to the Loans hereunder and other Hedging
Agreements entered into in order to manage existing or
anticipated interest rate, exchange rate or commodity price
risks and not for speculative purposes;
(d) Indebtedness of the Borrower and its Subsidiaries
incurred after the Closing Date consisting of Capital Leases
or Indebtedness incurred to provide all or a portion of the
purchase price or cost of construction of an asset provided
that (i) such Indebtedness when incurred shall not exceed the
purchase price or cost of construction of such asset (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; and (iii) the total amount of all
such Indebtedness shall not exceed ten percent 10% of
Consolidated Total Assets at any time outstanding;
(e) Indebtedness secured by Liens to the extent
permitted under subsection (m) of the definition of "Permitted
Liens";
(f) unsecured intercompany Indebtedness among the
Borrower and its Subsidiaries; provided that any such
Indebtedness shall be fully subordinated to the Borrower
Obligations hereunder on terms reasonably satisfactory to the
Agent; and
(g) other unsecured Indebtedness of the Borrower and its
Subsidiaries; provided that such Indebtedness shall not exceed
at any time outstanding an aggregate amount of more than
fifteen percent (15%) of Consolidated Net Worth determined as
of the end of the most recently completed fiscal year.
Section 6.2 Liens.
Contract, create, incur, assume or permit to exist any Lien
with respect to any of their respective property or assets of any
kind (whether real or personal, tangible or intangible), whether now
owned or hereafter acquired, except for Permitted Liens.
Section 6.3 Nature of Business.
Alter the character of their business in any material respect
from that conducted as of the Closing Date or engage in any business
other than the business conducted as of the Closing Date and any
reasonable extensions thereof.
Section 6.4 Consolidation, Merger, Sale or Purchase of Assets, etc.
(a) Dissolve, liquidate or wind up their affairs or
enter into any transaction of merger or consolidation;
provided, however that (i) the Borrower may merge or
consolidate with any Subsidiary so long as the Borrower shall
be the continuing or surviving corporation, (ii) any
Subsidiary of the Borrower may be merged with or into any
other Subsidiary of the Borrower and (iii) the Borrower or any
Subsidiary of the Borrower may merge with any other Person in
connection with a Permitted Acquisition if the Borrower or
such Subsidiary shall be the continuing or surviving
corporation.
(b) Make any Asset Dispositions (including, without
limitation, any Sale Leaseback Transaction) other than (i)
the sale of inventory in the ordinary course of business for
fair consideration, (ii) the sale or disposition of machinery
and equipment no longer used or useful in the conduct of
Borrower's or any such Subsidiary's business, or (iii) such
other Asset Dispositions, provided that (A) the consideration
for such assets disposed of represents the fair market value
of such assets at the time of such Asset Disposition and, (B)
if the cumulative net book value of any Asset Disposition is
less than 10% of Consolidated Total Assets, upon giving effect
to such Asset Disposition on a Pro Forma Basis, the Borrower
will be in compliance with all of the financial covenants set
forth in Section 5.8 and (C) if the cumulative net book value
of any Asset Disposition exceeds 10% of Consolidated Total
Assets, the Borrower shall have delivered to the Agent a Pro
Forma Compliance Certificate demonstrating that, upon giving
effect to such Asset Disposition, the Borrower will be in
compliance with all of the financial covenants set forth in
Section 5.8.
(c) Acquire all or substantially all of the assets or
business of any Person except in connection with a Permitted
Acquisition.
Section 6.5 Advances, Investments and Loans.
Lend money or extend credit or make advances to any Person, or
purchase or acquire any stock, obligations or securities of, or any
other interest in, or make any capital contribution to, or otherwise
make an investment in, any Person except for Permitted Investments
and Permitted Acquisitions.
Section 6.6 Issuance of Equity Securities.
Issue, sell, transfer, pledge or otherwise dispose of any
shares of capital stock or other equity or ownership interests
("Equity Interests") in any Subsidiary, except (a) in connection
with the sale of all of the capital stock of a Subsidiary pursuant
to a transaction permitted by Section 6.4(b), (b) the issuance, sale
or transfer of Equity Interests by a Subsidiary (the "Issuing
Subsidiary") to the Borrower or a Subsidiary of the Borrower that
owns such Issuing Subsidiary and (c) as needed to qualify directors
under applicable law.
Section 6.7 Transactions with Affiliates; Modification of
Documentation.
(a) Except as permitted in subsection (e) of the
definition of Permitted Investments, enter into or permit to exist
any transaction or series of transactions, whether or not in the
ordinary course of business, with any officer, director,
shareholder, Subsidiary or Affiliate other than (i) customary fees
and expenses paid to directors and (ii) where such transactions are
on terms and conditions substantially as favorable as would be
obtainable in a comparable arm's-length transaction with a Person
other than an officer, director, shareholder, Subsidiary or
Affiliate.
(b) Permit the Borrower or any Subsidiary to, if any
Default or Event of Default has occurred and is continuing or
would be directly or indirectly caused as a result thereof,
after the issuance thereof, amend or modify (or permit the
amendment or modification of) any of the terms of any
Indebtedness if such amendment or modification would add or
change any terms in a manner adverse to the issuer of such
Indebtedness, or shorten the final maturity or average life to
maturity or require any payment to be made sooner than
originally scheduled or increase the interest rate applicable
thereto or change any subordination provision thereof.
Section 6.8 Ownership of Subsidiaries; Restrictions.
The Borrower will not sell, transfer, pledge or otherwise
dispose of any Capital Stock or other equity interests in any of its
Subsidiaries, nor will it permit any of its Subsidiaries to issue,
sell, transfer, pledge or otherwise dispose of any of their Capital
Stock or other equity interests, except in a transaction permitted
by Section 6.4 or 6.5.
Section 6.9 Fiscal Year; Organizational Documents.
Change its fiscal year or amend, modify or change its articles
of incorporation in any manner adverse to the Lenders (or corporate
charter or other similar organizational document) or bylaws (or
other similar document) without the prior written consent of the
Required Lenders.
Section 6.10 Limitation on Restricted Actions.
Create or permit to exist any restriction of any kind on the
ability of any Subsidiary to (a) pay dividends or make any other
distributions to the Borrower or any of its Subsidiaries, (b) pay
Indebtedness owed to the Borrower or any of its Subsidiaries, (c)
make loans or advances to the Borrower or any of its Subsidiaries
or (d) transfer any of its properties or assets to the Borrower or
any of its Subsidiaries.
Section 6.11 Restricted Payments.
The Borrower will not, nor will it permit any Subsidiary to,
directly or indirectly, declare, order, make or set apart any sum
for or pay any Restricted Payment, except (a) to make dividends
payable solely in the same class of Capital Stock of such Person,
(b) to make dividends or other distributions payable to the Borrower
(directly or indirectly through Subsidiaries), (c) as permitted by
Section 6.12 and (d) other distributions in respect of the Capital
Stock of such Person or the redemption, retirement, purchase or
other acquisition of the Capital Stock of such Person (or any
warrant, option or other rights with respect to any shares of
Capital Stock (now or hereafter outstanding) of such Person) in an
aggregate amount not in excess of (i) 66 2/3% of Consolidated Net
Income earned subsequent to September 30, 1999, plus (ii)
$25,000,000, plus (iii) an amount equal to 100% of the net cash
proceeds from any Equity Issuance occurring after the Closing Date.
Section 6.12 Prepayments of Indebtedness, etc.
The Borrower will not, nor will it permit any Subsidiary to,
after the issuance thereof, amend or modify (or permit the amendment
or modification of) any of the terms of any Indebtedness if such
amendment or modification would add or change any terms in a manner
adverse to the issuer of such Indebtedness, or shorten the final
maturity or average life to maturity or require any payment to be
made sooner than originally scheduled or increase the interest rate
applicable thereto or change any subordination provision thereof.
Section 6.13 Rental, Lease, etc..
Incur, create, assume or permit to exist any commitments to
make any direct or indirect payment, whether as rent or otherwise,
under any lease, rental or other arrangement for the use of property
of any other Person, if immediately thereafter the aggregate of such
payments to be made by the Borrower and its Subsidiaries pursuant
thereto shall in any consecutive 12-month period exceed 5% of
Consolidated Net Worth, exclusive of, whether by the Borrower or any
Subsidiary: (a) payments of any taxes, assessments or charges on
any real property to be made pursuant to all such lease and rentals;
(b) rental obligations under leases having a term (including terms
of renewal at the option of the lessor, whether or not any such
lease has theretofore been renewed) expiring less than three years
after such time; (c) rentals and royalty obligations under mineral
leases which are subject to cancellation by the lessee thereunder;
and (d) rental obligations and royalty agreements under leases from
Patriot Transportation Holding Inc. and Persons controlled by it.
Section 6.14 Partnership and Joint Venture Indebtedness.
Except as set forth on Schedule 6.14, incur, create, assume or
permit to exist any Indebtedness with recourse to the Borrower or
any Subsidiary of any partnership or joint venture in which the
Borrower or such Subsidiary is a general partner or a joint venturer
the aggregate principal amount of which exceeds 10% of Consolidated
Net Worth.
Section 6.15 No Further Negative Pledges.
The Borrower will not, nor will it permit any Subsidiary to,
enter into, assume or become subject to any agreement prohibiting
or otherwise restricting the creation or assumption of any Lien upon
its properties or assets, whether now owned or hereafter acquired,
or requiring the grant of any security for such obligation if
security is given for some other obligation, except (a) pursuant to
this Agreement and the other Credit Documents, (b) pursuant to any
document or instrument governing Indebtedness incurred pursuant to
Section 6.1(d), provided that any such restriction contained therein
relates only to the asset or assets constructed or acquired in
connection therewith and (c) in connection with any Permitted Lien
or any document or instrument governing any Permitted Lien, provided
that any such restriction contained therein relates only to the
asset or assets subject to such Permitted Lien.
ARTICLE VII
EVENTS OF DEFAULT
Section 7.1 Events of Default.
An Event of Default shall exist upon the occurrence of any of
the following specified events (each an "Event of Default"):
(a) The Borrower shall fail to pay any principal on any
Note when due in accordance with the terms thereof or hereof;
or the Borrower shall fail to reimburse the Issuing Lender for
any LOC Obligations when due in accordance with the terms
hereof; or the Borrower shall fail to pay any interest on any
Note or any fee or other amount payable hereunder when due in
accordance with the terms thereof or hereof and such failure
shall continue unremedied for three (3) Business Days; or
(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) The Borrower shall fail to perform, comply with
or observe any term, covenant or agreement applicable to it
contained in Section 5.7(a), Section 5.8 or Article VI hereof;
or (ii) the Borrower shall fail to comply with any other
covenant, contained in this Credit Agreement or the other
Credit Documents or any other agreement, document or
instrument among the Borrower, the Administrative Agent and
the Lenders or executed by the Borrower in favor of the
Administrative Agent or the Lenders (other than as described
in Sections 7.1(a) or 7.1(c)(i) above), and in the event such
breach or failure to comply is capable of cure, is not cured
within thirty (30) days of its occurrence; or
(d) The Borrower or any of its Subsidiaries shall (i)
default in any payment of principal of or interest on any
Indebtedness (other than the Borrower Obligations) in a
principal amount outstanding of at least $1,000,000 in the
aggregate for the Borrower and any of its Subsidiaries beyond
the period of grace (not to exceed 30 days), if any, provided
in the instrument or agreement under which such Indebtedness
was created; or (ii) default in the observance or performance
of any other agreement or condition relating to any
Indebtedness (other than the Borrower Obligations) in a
principal amount outstanding of at least $1,000,000 in the
aggregate for the Borrower and its Subsidiaries or contained
in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition
exist, the effect of which default or other event or condition
is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such
Indebtedness (or a trustee or agent on behalf of such holder
or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to become due
prior to its stated maturity; or
(e) (i) The Borrower or any of its Subsidiaries shall
commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or
other similar official for it or for all or any substantial
part of its assets, or the Borrower or any Subsidiary shall
make a general assignment for the benefit of its creditors; or
(ii) there shall be commenced against the Borrower or any
Subsidiary any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry
of an order for relief or any such adjudication or appointment
or (B) remains undismissed, undischarged or unbonded for a
period of 60 days; or (iii) there shall be commenced against
the Borrower or any Subsidiary any case, proceeding or other
action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial
part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged,
or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Borrower or any Subsidiary shall
take any action in furtherance of, or indicating its consent
to, approval of, or acquiescence in, any of the acts set forth
in clause (i), (ii), or (iii) above; or (v) the Borrower or
any Subsidiary shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they
become due; or
(f) One or more judgments or decrees shall be entered
against the Borrower or any of its Subsidiaries involving in
the aggregate a liability (to the extent not paid when due or
covered by insurance) of $1,000,000 or more and all such
judgments or decrees shall not have been paid and satisfied,
vacated, discharged, stayed or bonded pending appeal within 30
days from the entry thereof; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section
4975 of the Code) involving any Plan, (ii) any "accumulated
funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan (other than a
Permitted Lien) shall arise on the assets of the Borrower or
any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have
a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment
of a Trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, (v) the
Borrower, 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 Reorganization of, any
Multiemployer Plan or (vi) any other similar event or
condition shall occur or exist with respect to a Plan; and in
each case in clauses (i) through (vi) above, such event or
condition, together with all other such events or conditions,
if any, could have a Material Adverse Effect; or
(h) There shall occur a Change of Control; or
(i) 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(f) above, automatically the Commitments shall
immediately terminate and the Loans (with accrued interest thereon),
and all other amounts under the Credit Documents (including without
limitation the maximum amount of all contingent liabilities under
Letters of Credit) shall immediately become due and payable, and (b)
if such event is any other Event of Default, either or both of the
following actions may be taken: (i) with the written consent of the
Required Lenders, the Administrative Agent may, or upon the written
request of the Required Lenders, the Administrative Agent shall, by
notice to the Borrower declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate;
and (ii) with the written consent of the Required Lenders, the
Administrative Agent may, or upon the written request of the
Required Lenders, the Administrative Agent shall, by notice of
default to the Borrower, declare the Loans (with accrued interest
thereon) and all other amounts owing under this Agreement and the
Notes to be due and payable forthwith and direct the Borrower to pay
to the Administrative Agent cash collateral as security for the LOC
Obligations for subsequent drawings under then outstanding Letters
of Credit in an amount equal to the maximum amount which may be
drawn under Letters of Credit then outstanding, whereupon the same
shall immediately become due and payable.
ARTICLE VIII
THE AGENT
Section 8.1 Appointment.
Each Lender hereby irrevocably designates and appoints First
Union National Bank as the Administrative Agent of such Lender under
this Agreement, and each such Lender irrevocably authorizes First
Union National Bank, as the Administrative Agent for such Lender,
to take such action on its behalf under the provisions of this
Agreement and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this
Agreement, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth
herein, or any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations
or liabilities shall be read into this Agreement or otherwise exist
against the Administrative Agent.
Section 8.2 Delegation of Duties.
The Administrative Agent may execute any of its duties under
this Agreement by or through agents or attorneys-in-fact and shall
be entitled to advice of counsel concerning all matters pertaining
to such duties. The Administrative Agent shall not be responsible
for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care. Without limiting the
foregoing, the Administrative Agent may appoint one of its
affiliates as its agent to perform the functions of the
Administrative Agent hereunder relating to the advancing of funds
to the Borrower and distribution of funds to the Lenders and to
perform such other related functions of the Administrative Agent
hereunder as are reasonably incidental to such functions.
Section 8.3 Exculpatory Provisions.
Neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall
be (a) liable for any action lawfully taken or omitted to be taken
by it or such Person under or in connection with this Agreement
(except for its or such Person's own gross negligence or willful
misconduct) or (b) responsible in any manner to any of the Lenders
for any recitals, statements, representations or warranties made by
the Borrower or any officer thereof contained in this Agreement or
in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under
or in connection with, this Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any of
the Credit Documents or for any failure of the Borrower to perform
its obligations hereunder or thereunder. The Administrative Agent
shall not be under any obligation to any Lender to ascertain or to
inquire as to the observance or performance by the Borrower of any
of the agreements contained in, or conditions of, this Agreement,
or to inspect the properties, books or records of the Borrower.
Section 8.4 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any Note, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it in good faith to be
genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal
counsel (including, without limitation, counsel to the Borrower),
independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat
the payee of any Note as the owner thereof for all purposes unless
(a) a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Administrative Agent and (b) the
Administrative Agent shall have received the written agreement of
such assignee to be bound hereby as fully and to the same extent as
if such assignee were an original Lender party hereto, in each case
in form satisfactory to the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing
to take any action under this Agreement unless it shall first
receive such advice or concurrence of the Required Lenders as it
deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from
acting, under any of the Credit Documents in accordance with a
request of the Required Lenders or all of the Lenders, as may be
required under this Agreement, and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Notes.
Section 8.5 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from
a Lender or the Borrower referring to this Agreement, describing
such Default or Event of Default and stating that such notice is a
"notice of default". In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give prompt
notice thereof to the Lenders. The Administrative Agent shall take
such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Lenders; provided,
however, that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders except to the
extent that this Credit Agreement expressly requires that such
action be taken, or not taken, only with the consent or upon the
authorization of the Required Lenders, or all of the Lenders, as the
case may be.
Section 8.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates has made any representation
or warranty to it and that no act by the Administrative Agent
hereinafter taken, including any review of the affairs of the
Borrower, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender
represents to the Administrative Agent that it has, independently
and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrower and made its own decision to make
its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions
in taking or not taking action under this Agreement, and to make
such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and
other documents expressly required to be furnished to the Lenders
by the Administrative Agent hereunder, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with
any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or
creditworthiness of the Borrower which may come into the possession
of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
Section 8.7 Indemnification.
The Lenders agree to indemnify the Administrative Agent in its
capacity hereunder (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably
according to their respective Commitment Percentages in effect on
the date on which indemnification is sought under this Section, from
and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment
of the Notes) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of any
Credit Document or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by the Administrative Agent under or
in connection with any of the foregoing; provided, however, that no
Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements to the extent
resulting from the Agent's gross negligence or willful misconduct,
as determined by a court of competent jurisdiction. The agreements
in this Section 8.7 shall survive the termination of this Agreement
and payment of the Notes and all other amounts payable hereunder.
Section 8.8 Administrative Agent in Its Individual Capacity.
The Administrative Agent and its affiliates may make loans to,
accept deposits from and generally engage in any kind of business
with the Borrower as though the Administrative Agent were not the
Administrative Agent hereunder. With respect to its Loans made or
renewed by it and any Note issued to it, the Administrative Agent
shall have the same rights and powers under this Agreement as any
Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall
include the Administrative Agent in its individual capacity.
Section 8.9 Successor Administrative Agent.
The Administrative Agent may resign as Administrative Agent
upon 30 days' prior notice to the Borrower and the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this
Agreement and the Notes, then the Required Lenders shall appoint
from among the Lenders a successor agent for the Lenders, which
successor agent shall be approved by the Borrower, whereupon such
successor agent shall succeed to the rights, powers and duties of
the Administrative Agent, and the term "Administrative Agent" shall
mean such successor agent effective upon such appointment and
approval, and the former Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent
or any of the parties to this Agreement or any holders of the Notes.
After any retiring Agent's resignation as Administrative Agent, the
provisions of this Section 8.9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
Section 8.10 Syndication Agent and Documentation Agent.
Neither the Syndication Agent nor the Documentation Agent shall
have any right, power, duty or obligation under this Credit
Agreement or any of the other Credit Documents other than those
applicable to all Lenders as such. Without limiting the foregoing,
none of such Lenders shall have or be deemed to have a fiduciary
relationship with any Lender. Each Lender hereby makes the same
acknowledgments with respect to such Lenders as it makes with
respect to the Agent in Section 8.6.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Amendments and Waivers.
Neither this Agreement, nor any of the Notes, nor any of the
other Credit Documents, nor any terms hereof or thereof may be
amended, supplemented, waived or modified except in accordance with
the provisions of this Section nor may be released except as
specifically provided herein or in accordance with the provisions
of this Section 9.1. The Required Lenders may, or, with the written
consent of the Required Lenders, the Administrative Agent may, from
time to time, (a) enter into with the Borrower written amendments,
supplements or modifications hereto and to the other Credit
Documents for the purpose of adding any provisions to this Agreement
or the other Credit Documents or changing in any manner the rights
of the Lenders or of the Borrower hereunder or thereunder or (b)
waive, on such terms and conditions as the Required Lenders may
specify in such instrument, any of the requirements of this
Agreement or the other Credit Documents or any Default or Event of
Default and its consequences; provided, however, that no such waiver
and no such amendment, waiver, supplement, modification or release
shall:
(i) reduce the amount or extend the scheduled date
of maturity of any Loan, LOC Obligation or Note or any
installment thereon (including any mandatory prepayment),
or reduce the stated rate of any interest or fee payable
hereunder (other than interest at the increased post
default rate) or extend the scheduled date of any payment
thereof or increase the amount or extend the expiration
date of any Lender's Commitment or any LOC Obligation
beyond the Revolving Commitment Termination Date, in each
case without the written consent of each Lender directly
affected thereby, or
(ii) amend, modify or waive any provision of this
Section 9.1 or reduce the percentage specified in the
definition of Required Lenders, without the written
consent of all the Lenders, or
(iii) amend, modify or waive any provision of
Article VIII without the written consent of the then
Administrative Agent, or
(iv) amend, modify or waive any provision of the
Credit Documents requiring consent, approval or request
of the Required Lenders or all Lenders, without the
written consent of all of the Lenders and, provided,
further, that no amendment, waiver or consent affecting
the rights or duties of the Administrative Agent or the
Issuing Lender under any Credit Document shall in any
event be effective, unless in writing and signed by the
Administrative Agent and/or the Issuing Lender, as
applicable, in addition to the Lenders required
hereinabove to take such action.
Any such waiver, any such amendment, supplement or modification
and any such release shall apply equally to each of the Lenders and
shall be binding upon the Borrower, the Lenders, the Administrative
Agent and all future holders of the Notes. In the case of any
waiver, the Borrower, the Lenders and the Administrative Agent shall
be restored to their former position and rights hereunder and under
the outstanding Loans and Notes and other Credit Documents, and any
Default or Event of Default waived shall be deemed to be cured and
not continuing; but no such waiver shall extend to any subsequent
or other Default or Event of Default, or impair any right consequent
thereon.
Notwithstanding any of the foregoing to the contrary, the
consent of the Borrower shall not be required for any amendment,
modification or waiver of the provisions of Article VIII (other than
the provisions of Section 8.9); provided, however, that the
Administrative Agent will provide written notice to the Borrower of
any such amendment, modification or waiver. In addition, the
Borrower and the Lenders hereby authorize the Administrative Agent
to modify this Credit Agreement by unilaterally amending or
supplementing Schedule 2.1(a) from time to time in the manner
requested by the Borrower, the Administrative Agent or any Lender
in order to reflect any assignments or transfers of the Loans as
provided for hereunder; provided, however, that the Administrative
Agent shall promptly deliver a copy of any such modification to the
Borrower and each Lender.
Notwithstanding the fact that the consent of all the Lenders
is required in certain circumstances as set forth above, (x) each
Lender is entitled to vote as such Lender sees fit on any bankruptcy
reorganization plan that affects the Loans, and each Lender
acknowledges that the provisions of Section 1126(c) of the
Bankruptcy Code supersedes the unanimous consent provisions set
forth herein and (y) the Required Lenders may consent to allow the
Borrower 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 to a reputable national overnight air courier
service, or (d) the third Business Day following the day on which
the same is sent by certified or registered mail, postage prepaid,
in each case, addressed as follows in the case of the Borrower and
the Administrative Agent, and as set forth on Schedule 9.2 in the
case of the Lenders, or to such other address as may be hereafter
notified by the respective parties hereto and any future holders of
the Notes:
The Borrower Florida Rock Industries, Inc.
155 East 21st Street
Jacksonville, Florida 32206
Attention: Chief Financial Officer
Telecopier: (904) 791-1810
Telephone: (904) 355-1781
With a Copy to: Lewis S. Lee, Esquire
Martin, Ade, Birchfield & Mickler, P.A.
One Independent Drive, Suite 3000
Jacksonville, Florida 32202
Telecopier: (904) 354-5842
Telephone: (904) 354-2050
The Administrative First Union National Bank
Agent: One First Union Center, DC-04
Charlotte, North Carolina 28288
Attention: Syndication Agency Services
Telecopier: (704) 383-0288
Telephone: (704) 715-1191
with a copy to:
First Union National Bank
One First Union Center, DC-5
Charlotte, North Carolina 28288-0737
Attention: David Hauglid
Telecopier: (704) 374-4793
Telephone: (704) 383-3544
Section 9.3 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part
of the Administrative Agent or any Lender, any right, remedy, power
or privilege hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
Section 9.4 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any
document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this
Agreement and the Notes and the making of the Loans, provided that
all such representations and warranties shall terminate on the date
upon which the Commitments have been terminated and all amounts
owing hereunder and under any Notes have been paid in full.
Section 9.5 Payment of Expenses and Taxes.
The Borrower agrees (a) to pay or reimburse the Administrative
Agent for all its reasonable out-of-pocket costs and expenses
incurred in connection with 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), and (c) on demand, to
pay, indemnify, and hold each Lender and the Administrative Agent
harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other similar taxes, if any, which may be payable
or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of,
the Credit Documents and any such other documents, and (d) to pay,
indemnify, and hold each Lender and the Administrative Agent and
their Affiliates harmless from and against, any and all other
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of the Credit Documents
and any such other documents and the use, or proposed use, of
proceeds of the Loans (all of the foregoing, collectively, the
"indemnified liabilities"); provided, however, that the Borrower
shall not have any obligation hereunder to the Administrative Agent
or any Lender with respect to indemnified liabilities arising from
the gross negligence or willful misconduct of the Administrative
Agent or any such Lender, as determined by a court of competent
jurisdiction. The agreements in this Section 9.5 shall survive
repayment of the Loans, Notes and all other amounts payable
hereunder.
Section 9.6 Successors and Assigns; Participations; Purchasing Lenders.
(a) This Agreement shall be binding upon and inure to
the benefit of the Borrower, the Lenders, the Administrative
Agent, the Syndication Agent, the Documentation Agent, all
future holders of the Notes and their respective successors
and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement
or the other Credit Documents without the prior written
consent of each Lender.
(b) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable
law, at any time sell to one or more banks or other entities
("Participants") participating interests in any Loan owing to
such Lender, any Note held by such Lender, any Commitment of
such Lender, or any other interest of such Lender hereunder.
In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under
this Agreement to the other parties to this Agreement shall
remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the
holder of any such Note for all purposes under this Agreement,
and the Borrower and the Administrative Agent shall continue
to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this
Agreement. No Lender shall transfer or grant any
participation under which the Participant shall have rights to
approve any amendment to or waiver of this Agreement or any
other Credit Document except to the extent such amendment or
waiver would (i) extend the scheduled maturity of any Loan or
Note or any installment thereon in which such Participant is
participating, or reduce the stated rate or extend the time of
payment of interest or fees thereon (except in connection with
a waiver of interest at the increased post-default rate) or
reduce the principal amount thereof, or increase the amount of
the Participant's participation over the amount thereof then
in effect (it being understood that a waiver of any Default or
Event of Default shall not constitute a change in the terms of
such participation, and that an increase in any Commitment or
Loan shall be permitted without consent of any participant if
the Participant's participation is not increased as a result
thereof), ), or (ii) consent to the assignment or transfer by
the Borrower of any of its rights and obligations under this
Agreement. In the case of any such participation, the
Participant shall not have any rights under this Agreement or
any of the other Credit Documents (the Participant's rights
against such Lender in respect of such participation to be
those set forth in the agreement executed by such Lender in
favor of the Participant relating thereto) and all amounts
payable by the Borrower hereunder shall be determined as if
such Lender had not sold such participation, provided that
each Participant shall be entitled to the benefits of Sections
2.16, 2.17, 2.18 and 9.5 with respect to its participation in
the Commitments and the Loans outstanding from time to time;
provided, that no Participant shall be entitled to receive any
greater amount pursuant to such Sections than the transferor
Lender would have been entitled to receive in respect of the
amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable
law, at any time, sell or assign to any Lender or any
affiliate thereof and with the consent of the Administrative
Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower (in each case, which consent shall
not be unreasonably withheld), to one or more additional banks
or financial institutions ("Purchasing Lenders"), all or any
part of its rights and obligations under this Agreement and
the Notes in minimum amounts of $5,000,000 with respect to its
Revolving Commitment and its Revolving Loans (or, if less, the
entire amount of such Lender's obligations), pursuant to a
Commitment Transfer Supplement, executed by such Purchasing
Lender and such transferor Lender (and, in the case of a
Purchasing Lender that is not then a Lender or an affiliate
thereof, the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower), and
delivered to the Administrative Agent for its acceptance and
recording in the Register; provided, however, that any sale or
assignment to an existing Lender or any Affiliate of an
existing Lender shall not require the consent of the
Administrative Agent or the Borrower nor shall any such sale
or assignment be subject to the minimum assignment amounts
specified herein. Upon such execution, delivery, acceptance
and recording, from and after the Transfer Effective Date
specified in such Commitment Transfer Supplement, (x) the
Purchasing Lender thereunder shall be a party hereto and, to
the extent provided in such Commitment Transfer Supplement,
have the rights and obligations of a Lender hereunder with a
Commitment as set forth therein, and (y) the transferor Lender
thereunder shall, to the extent provided in such Commitment
Transfer Supplement, be released from its obligations under
this Agreement (and, in the case of a Commitment Transfer
Supplement covering all or the remaining portion of a
transferor Lender's rights and obligations under this
Agreement, such transferor Lender shall cease to be a party
hereto). Such Commitment Transfer Supplement shall be deemed
to amend this Agreement to the extent, and only to the extent,
necessary to reflect the addition of such Purchasing Lender
and the resulting adjustment of Commitment Percentages arising
from the purchase by such Purchasing Lender of all or a
portion of the rights and obligations of such transferor
Lender under this Agreement and the Notes. On or prior to the
Transfer Effective Date specified in such Commitment Transfer
Supplement, the Borrower, at its own expense, shall execute
and deliver to the Administrative Agent in exchange for the
Notes delivered to the Administrative Agent pursuant to such
Commitment Transfer Supplement new Notes to the order of such
Purchasing Lender in an amount equal to the Commitment assumed
by it pursuant to such Commitment Transfer Supplement and,
unless the transferor Lender has not retained a Commitment
hereunder, new Notes to the order of the transferor Lender in
an amount equal to the Commitment retained by it hereunder.
Such new Notes shall be dated the Closing Date and shall
otherwise be in the form of the Notes replaced thereby. The
Notes surrendered by the transferor Lender shall be returned
by the Administrative Agent to the Borrower marked "canceled".
(d) The Administrative Agent shall maintain at its
address referred to in Section 9.2 a copy of each Commitment
Transfer Supplement delivered to it and a register (the
"Register") for the recordation of the names and addresses of
the Lenders and the Commitment of, and principal amount of the
Loans owing to, each Lender from time to time. The entries in
the Register shall be conclusive, in the absence of manifest
error, and the Borrower, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the
Register as the owner of the Loan recorded therein for all
purposes of this Agreement. The Register shall be available
for inspection by the Borrower or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly executed Commitment
Transfer Supplement, together with payment to the
Administrative Agent by the transferor Lender or the
Purchasing Lender, as agreed between them, of a registration
and processing fee of $3,000 for each Purchasing Lender listed
in such Commitment Transfer Supplement and the Notes subject
to such Commitment Transfer Supplement, the Administrative
Agent shall (i) accept such Commitment Transfer Supplement,
(ii) record the information contained therein in the Register
and (iii) give prompt notice of such acceptance and
recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to
any Participant or Purchasing Lender (each, a "Transferee")
and any prospective Transferee any and all information in such
Lender's possession concerning the Borrower and its Affiliates
which has been delivered to such Lender by or on behalf of the
Borrower pursuant to this Agreement or which has been
delivered to such Lender by or on behalf of the Borrower in
connection with such Lender's credit evaluation of the
Borrower and its Affiliates prior to becoming a party to this
Agreement, in each case subject to Section 9.16.
(g) At the time of each assignment pursuant to this
Section 9.6 to a Person which is not already a Lender
hereunder and which is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) for
Federal income tax purposes, the respective assignee Lender
shall provide to the Borrower and the Administrative Agent the
appropriate Internal Revenue Service Forms (and, if
applicable, a 2.18 Certificate) described in Section 2.18.
(h) Nothing herein shall prohibit any Lender from
pledging or assigning any of its rights under this Agreement
(including, without limitation, any right to payment of
principal and interest under any Note) to any Federal Reserve
Bank in accordance with applicable laws.
Section 9.7 Adjustments; Set-off.
(a) Each Lender agrees that if any Lender (a "benefited
Lender") shall at any time receive any payment of all or part
of its Loans, or interest thereon, in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events
or proceedings of the nature referred to in Section 7.1(f), or
otherwise) in a greater proportion than any such payment to
any other Lender, if any, in respect of such other Lender's
Loans, or interest thereon, such benefited Lender shall
purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender's Loan, as
shall be necessary to cause such benefited Lender to share the
excess payment ratably with each of the Lenders; provided,
however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefited Lender,
such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without
interest. The Borrower agrees that each Lender so purchasing
a portion of another Lender's Loans may exercise all rights of
payment (including, without limitation, rights of set-off)
with respect to such portion as fully as if such Lender were
the direct holder of such portion.
(b) In addition to any rights and remedies of the
Lenders provided by law (including, without limitation, other
rights of set-off), each Lender shall have the right, without
prior notice to the Borrower, any such notice being expressly
waived by the Borrower to the extent permitted by applicable
law, upon the occurrence of any Event of Default, to setoff
and appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in
any currency, in each case whether direct or indirect,
absolute or contingent, matured or unmatured, at any time held
or owing by such Lender or any branch or agency thereof to or
for the credit or the account of the Borrower, or any part
thereof in such amounts as such Lender may elect, against and
on account of the obligations and liabilities of the Borrower
to such Lender hereunder and claims of every nature and
description of such Lender against the Borrower, in any
currency, whether arising hereunder, under the Notes or under
any documents contemplated by or referred to herein or
therein, as such Lender may elect, whether or not such Lender
has made any demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. The
aforesaid right of set-off may be exercised by such Lender
against the Borrower or against any trustee in bankruptcy,
debtor in possession, assignee for the benefit of creditors,
receiver or execution, judgment or attachment creditor of the
Borrower, or against anyone else claiming through or against
the Borrower or any such trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, receiver,
or execution, judgment or attachment creditor, notwithstanding
the fact that such right of set-off shall not have been
exercised by such Lender prior to the occurrence of any Event
of Default. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set-off
and application made by such Lender; provided, however, that
the failure to give such notice shall not affect the validity
of such set-off and application.
Section 9.8 Table of Contents and Section Headings.
The table of contents and the Section and subsection headings
herein are intended for convenience only and shall be ignored in
construing this Agreement.
Section 9.9 Counterparts.
This Agreement may be executed by one or more of the parties
to this Agreement on any number of separate counterparts, and all
of said counterparts taken together shall be deemed to constitute
one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
Section 9.10 Effectiveness.
This Credit Agreement shall become effective on the date on
which all of the parties have signed a copy hereof (whether the same
or different copies) and shall have delivered the same to the
Administrative Agent pursuant to Section 9.2 or, in the case of the
Lenders, shall have given to the Administrative Agent written,
telecopied or telex notice (actually received) at such office that
the same has been signed and mailed to it.
Section 9.11 Severability.
Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
Section 9.12 Integration.
This Agreement and the Notes represent the agreement of the
Borrower, the Administrative Agent and the Lenders with respect to
the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent, the
Borrower or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the Notes.
Section 9.13 Governing Law.
This Agreement and the Notes and the rights and obligations of
the parties under this Agreement and the Notes shall be governed by,
and construed and interpreted in accordance with, the law of the
State of Florida.
Section 9.14 Consent to Jurisdiction and Service of
Process.
All judicial proceedings brought against the Borrower with
respect to this Agreement, any Note or any of the other Credit
Documents may be brought in any state or federal court of competent
jurisdiction in the Fourth Judicial Circuit, Duval County, Florida
or any federal court located in the Middle District of Florida, and,
by execution and delivery of this Agreement, the Borrower 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 irrevocably
agrees that all service of process in any such proceedings in any
such court may be effected by mailing a copy thereof by registered
or certified mail (or any substantially similar form of mail),
postage prepaid, to it at its address set forth in Section 9.2 or
at such other address of which the Administrative Agent shall have
been notified pursuant thereto, such service being hereby
acknowledged by the Borrower to be effective and binding service in
every respect. The Borrower, the Administrative Agent and the
Lenders irrevocably waives any objection, including, without
limitation, any objection to the laying of venue or based on the
grounds of forum non conveniens which it may now or hereafter have
to the bringing of any such action or proceeding in any such
jurisdiction. Nothing herein shall affect the right to serve
process in any other manner permitted by law or shall limit the
right of any Lender to bring proceedings against the Borrower in the
court of any other jurisdiction.
Section 9.15 Arbitration.
(a) Notwithstanding the provisions of Section 9.14 to
the contrary, upon demand of any party hereto, whether made
before or within three (3) months after institution of any
judicial proceeding, any dispute, claim or controversy arising
out of, connected with or relating to this Agreement and other
Credit Documents ("Disputes") between or among parties to this
Agreement shall be subject to non-binding arbitration as
provided herein. Institution of a judicial proceeding by a
party does not waive the right of that party to demand
arbitration hereunder. Disputes may include, without
limitation, tort claims, counterclaims, disputes as to whether
a matter is subject to arbitration, claims brought as class
actions, claims arising from Credit Documents executed in the
future, or claims arising out of or connected with the
transaction reflected by this Agreement.
Arbitration shall be conducted under and governed by the
Commercial Arbitration Rules (the "Arbitration Rules") of the
American Arbitration Association (the "AAA") and Title 9 of
the U.S. Code. All arbitration hearings shall be conducted in
New York, New York. A hearing shall begin within 90 days of
demand for arbitration and all hearings shall be concluded
within 120 days of demand for arbitration. These time
limitations may not be extended unless a party shows cause for
extension and then no more than a total extension of 60 days.
The expedited procedures set forth in Rule 51 et seq. of the
Arbitration Rules shall be applicable to claims of less than
$1,000,000. All applicable statutes of limitation shall apply
to any Dispute. Arbitrators shall be licensed attorneys
selected from the Commercial Financial Dispute Arbitration
Panel of the AAA. The parties hereto do not waive applicable
Federal or state substantive law except as provided herein.
Notwithstanding the foregoing, this arbitration provision does
not apply to disputes under or related to Hedging Agreements.
(b) Notwithstanding the preceding arbitration
provisions, the Administrative Agent, the Lenders and, the
Borrower agree to preserve, without diminution, certain
remedies that the Administrative Agent on behalf of the
Lenders may employ or exercise freely, independently or in
connection with an arbitration proceeding or after an
arbitration action is brought. The Administrative Agent on
behalf of the Lenders shall have the right to proceed in any
court of proper jurisdiction or by self-help to exercise or
prosecute the following remedies, as applicable (i) any rights
to foreclose against any real or personal property or other
security by exercising a power of sale granted under Credit
Documents or under applicable law or by judicial foreclosure
and sale, including a proceeding to confirm the sale; (ii) any
rights of self-help including peaceful occupation of real
property and collection of rents, set-off, and peaceful
possession of personal property; (iii) obtaining provisional
or ancillary remedies including injunctive relief,
sequestration, garnishment, attachment, appointment of
receiver and filing an involuntary bankruptcy proceeding; and
(iv) when applicable, a judgment by confession of judgment.
Preservation of these remedies does not limit the power of an
arbitrator to grant similar remedies that may be requested by
a party in a Dispute.
(c) The parties hereto agree that they shall not have a
remedy of punitive or exemplary damages against the other in
any Dispute and hereby waive any right or claim to punitive or
exemplary damages they have now or which may arise in the
future in connection with any Dispute whether the Dispute is
resolved by arbitration or judicially.
(d) By execution and delivery of this Agreement, each of
the parties hereto accepts, for itself and in connection with
its properties, generally and unconditionally, the non
exclusive jurisdiction relating to any arbitration proceedings
conducted under the Arbitration Rules in New York, New York
and irrevocably agrees to be bound by any final judgment
rendered thereby in connection with this Agreement from which
no appeal has been taken or is available.
Section 9.16 Confidentiality.
The Administrative Agent and each of the Lenders agrees that
it will use its best efforts not to disclose without the prior
consent of the Borrower (other than to its employees, affiliates,
auditors or counsel or to another Lender) any information with
respect to the Borrower and its Subsidiaries which is furnished
pursuant to this Agreement, any other Credit Document or any
documents contemplated by or referred to herein or therein and which
is designated by the Borrower to the Lenders in writing as
confidential or as to which it is otherwise reasonably clear such
information is not public, except that any Lender may disclose any
such information (a) as has become generally available to the public
other than by a breach of this Section 9.16, (b) as may be required
or appropriate in any report, statement or testimony submitted to
any municipal, state or federal regulatory body having or claiming
to have jurisdiction over such Lender or to the Federal Reserve
Board or the Federal Deposit Insurance Corporation or the OCC or the
NAIC or similar organizations (whether in the United States or
elsewhere) or their successors, (c) as may be required or
appropriate in response to any summons or subpoena or any law,
order, regulation or ruling applicable to such Lender, (d) to any
prospective Participant or assignee in connection with any
contemplated transfer pursuant to Section 9.6, provided that such
prospective transferee shall have been made aware of this Section
9.16 and shall have agreed to be bound by its provisions as if it
were a party to this Agreement or (e) to Gold Sheets and other
similar bank trade publications; such information to consist of deal
terms and other information regarding the credit facilities
evidenced by this Credit Agreement customarily found in such
publications.
Section 9.17 Acknowledgments.
The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of each Credit Document;
(b) neither the Administrative Agent nor any Lender has
any fiduciary relationship with or duty to the Borrower
arising out of or in connection with this Agreement and the
relationship between Administrative Agent and Lenders, on one
hand, and the Borrower, 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 and the Lenders.
Section 9.18 Waivers of Jury Trial.
THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
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CHAR1\539298_ 6
CHAR1\539298_ 6
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by its proper and duly
authorized officers as of the day and year first above written.
BORROWER: FLORIDA ROCK INDUSTRIES, INC.
By:
Title:
ADMINISTRATIVE AGENT
AND LENDERS: FIRST UNION NATIONAL BANK,
as Administrative Agent and as a Lender
By:
Name:
Title:
BANK OF AMERICA, N.A.,,
as Syndication Agent and as a Lender
By:
Name:
Title:
SUNTRUST BANK,
as Documentation Agent and as a Lender
By:
Name:
Title:
ALLFIRST BANK,
as a Lender
By:
Name:
Title:
COLUMBUS BANK AND TRUST COMPANY,
as a Lender
By:
Name:
Title:
<PAGE>
