—————————————————————————————————————-
\nOffshore
\nRate
\nOffshore Loans All-In All-In
\nRate under the Cost Cost
\nLoans Facility Five Year Facility Both Both
\nunder the Fee for Facility Fee for Facilities Facilities
\nPricing 364 Day 364 Day and L\/C Five Year at 50%
\nLevel Leverage Ratio Facility Facility Fee Facility Usage Fee Usage
\n—————————————————————————————————————-<\/p>\nI 0.25 to 1.0 but 0.400% 0.100% 0.350% 0.150% 0.500% 0.125% 0.625%
\n1.00 to 1.0 but 0.500% 0.125% 0.450% 0.175% 0.625% 0.125% 0.750%
\n1.75 to 1.0 but 0.600% 0.150% 0.550% 0.200% 0.750% 0.125% 0.875%
\n2.5 to 1.0 0.800% 0.200% 0.750% 0.250% 1.000% 0.125% 1.125%
\n—————————————————————————————————————-<\/p>\n<\/caption>\n<\/table>\n
The Applicable Percentage shall be determined and adjusted quarterly on the date
\n(each a “Rate Determination Date”) five (5) Business Days after the date by
\nwhich the annual or quarterly compliance certificates, as applicable, and
\nrelated financial statements and information are required in accordance with the
\nprovisions of Sections 7.1(a) and (b) and Section 7.2, as appropriate; provided
\nthat:<\/p>\n
(i) the initial Applicable Percentages shall be based on
\nPricing Level II and shall remain in effect at such Pricing Level until
\nthe first Rate Determination Date to occur after the Closing Date, and<\/p>\n
(ii) in the event an annual or quarterly compliance
\ncertificate and related financial statements and information are not
\ndelivered timely to the Administrative Agent’s Office by the date
\nrequired by Sections 7.1(a) and (b) and Section 7.2, as appropriate (a
\n“Non-Delivery Event”), the Applicable Percentages shall be based on the
\napplicable Pricing Level set forth below until such time as an
\nappropriate compliance certificate and related financial statements and
\ninformation are delivered, whereupon the<\/p>\n
3<\/p>\n
8<\/p>\n
applicable Pricing Level shall be adjusted (retroactive to the
\nimmediately preceding Rate Determination Date) based on the information
\ncontained in such compliance certificate and related financial
\nstatements and information:<\/p>\n
(A) for the period from the Rate Determination Date occurring
\nimmediately following such Non-Delivery Event until the date that is
\nfifteen (15) days following such Non-Delivery Event, the Pricing Level
\nin effect immediately prior to such Rate Determination Date; and<\/p>\n
(B) thereafter, Pricing Level V.<\/p>\n
Each Applicable Percentage shall be effective from a Rate Determination Date
\nuntil the next such Rate Determination Date. The Administrative Agent shall
\ndetermine the appropriate Applicable Percentages in the pricing matrix promptly
\nupon receipt of the quarterly or annual compliance certificate and related
\nfinancial information and shall promptly notify the Company and the Lenders of
\nany change thereof. Such determinations by the Administrative Agent shall be
\nconclusive absent manifest error. Adjustments in the Applicable Percentages
\nshall be effective as to existing Extensions of Credit as well as any new
\nExtension of Credit made thereafter.<\/p>\n
“Applicant Borrower” shall have the meaning assigned thereto in Section
\n2.10(a).<\/p>\n
“Arranger” means NationsBanc Montgomery Securities LLC in its capacity
\nas Lead Arranger and Book Manager for the Credit Facility.<\/p>\n
“Assignment and Acceptance” shall have the meaning assigned thereto in
\nSection 13.10(b)(iii).<\/p>\n
“Australian Dollars” means the unit of currency of Australia.<\/p>\n
“Available EMU Currency” means Deutsche Marks, Dutch Guilders, French
\nFrancs and Italian Lira.<\/p>\n
“Bankruptcy Event” means any of the events set forth in Section
\n11.1(i), (j), (k) or (l), or any of those events which with the passage of time,
\nthe giving of notice or any other condition, would constitute such an event, in
\nrespect of any of the Credit Parties or any of their Material Subsidiaries.<\/p>\n
“Base Rate” means, at any time, the higher of (a) the Prime Rate or (b)
\nthe sum of (i) the Federal Funds Rate plus (ii) 1\/2 of 1%; each change in the
\nBase Rate shall take effect simultaneously with the corresponding change or
\nchanges in the Prime Rate or the Federal Funds Rate.<\/p>\n
“Base Rate Loan” means any Loan denominated in Dollars and bearing
\ninterest at a rate based upon the Base Rate as provided in Section 4.1(a).<\/p>\n
4<\/p>\n
9<\/p>\n
“Borrower Joinder Agreement” means a Borrower Joinder Agreement
\nexecuted by an Applicant Borrower, the Company and the Administrative Agent in
\nsubstantially the form of Exhibit E, as amended, restated, supplemented or
\notherwise modified.<\/p>\n
“Borrowers” means, collectively, the Company and the Designated
\nBorrowers; “Borrower” means any one of them.<\/p>\n
“Business Day” shall, with respect to dates for the payment or purchase
\nof any amount denominated in euro or National Currency Units (including without
\nlimitation dates for determining LIBOR for such amount), be deemed to mean a
\nTARGET Business Day. The definition of “Business Day” shall, for all other
\npurposes, including without limitation the giving and receiving of notices
\nhereunder for Offshore Currency Loans denominated in euro or National Currency
\nUnits, be deemed to mean a TARGET Business Day on which banks are generally open
\nfor business in London, Frankfurt, Charlotte, North Carolina and\/or in any other
\nprincipal financial center as the Administrative Agent shall from time to time
\ndetermine for this purpose.<\/p>\n
“Canadian Dollars” means the unit of currency of Canada.<\/p>\n
“Capital Lease” means, with respect to any Person, any lease of any
\nproperty that should, in accordance with GAAP, be classified and accounted for
\nas a capital lease on a Consolidated balance sheet of such Person and its
\nConsolidated Subsidiaries.<\/p>\n
“Change in Control” shall have the meaning assigned thereto in Section
\n11.1(h).<\/p>\n
“Closing Date” means the date of this Agreement or such later Business
\nDay upon which each condition described in Section 5.1 and Section 5.2 shall be
\nsatisfied or waived in all respects.<\/p>\n
“Co-Agents” means First Union National Bank, The Huntington National
\nBank and Wachovia Bank, N.A. in their capacities as Co-Agents hereunder.<\/p>\n
“Code” means the Internal Revenue Code of 1986, and the rules and
\nregulations thereunder, each as amended, supplemented or otherwise modified from
\ntime to time.<\/p>\n
“Commitment” means, as to any Lender at any time, such Lender’s 364 Day
\nFacility Commitment, Five Year Facility Commitment or Aggregate Revolving Credit
\nCommitment, as the context requires.<\/p>\n
“Commitment Percentage” means, as to any Lender at any time, such
\nLender’s 364 Day Facility Commitment Percentage, Five Year Facility Commitment
\nPercentage or Aggregate Revolving Credit Commitment Percentage, as the context
\nrequires.<\/p>\n
“Company” means Herman Miller, Inc., a Michigan corporation.<\/p>\n
“Competitive Bid” means an offer by a Lender to make a Competitive Bid
\nLoan in accordance with Section 2.5.<\/p>\n
5<\/p>\n
10<\/p>\n
“Competitive Bid Loans” means any Loan made pursuant to Section 2.5 and
\nall such Loans collectively as the context requires.<\/p>\n
“Competitive Bid Rate” means the rate of interest per annum expressed
\nin multiples of l\/100th of one percent offered with respect to any Competitive
\nBid Loan offered by the Lender making such Competitive Bid.<\/p>\n
“Competitive Bid Request” means a request by a Borrower for Competitive
\nBids in accordance with Section 2.5.<\/p>\n
“Consolidated” means, when used with reference to financial statements
\nor financial statement items of a Person and its Subsidiaries, such statements
\nor items on a consolidated basis in accordance with applicable principles of
\nconsolidation under GAAP.<\/p>\n
“Consolidated EBITDA” means, for any period, as applied to the Company
\nand its Consolidated Subsidiaries without duplication, the sum of the amounts
\nfor such period of: (i) net income, (ii) interest expense, (iii) income tax
\nexpense, (iv) depreciation expense and (v) amortization expense, all of the
\nforegoing as determined and computed on a Consolidated basis in accordance with
\nGAAP.<\/p>\n
“Consolidated Interest Expense” means, for any period, for the Company
\nand its Consolidated Subsidiaries, all interest expense (whether paid or
\naccrued), including without limitation (a) the amortization of debt discount and
\npremium, (b) the interest component under Capital Leases and synthetic leases
\nand (c) the implied interest component, discount or other similar fees or
\ncharges in connection with any asset securitization program, in each case
\ndetermined on a Consolidated basis in accordance with GAAP.<\/p>\n
“Consolidated Subsidiary” means at any date any Subsidiary or other
\nentity the accounts of which, in accordance with GAAP, are consolidated with
\nthose of the Company in its consolidated financial statements as of such date.<\/p>\n
“Consolidated Total Assets” means, as of any date, the assets and
\nproperties of the Company and its Consolidated Subsidiaries, determined on a
\nConsolidated basis in accordance with GAAP.<\/p>\n
“Consolidated Total Debt” means, as of any date, all Debt of the
\nCompany and its Consolidated Subsidiaries for borrowed money, including without
\nlimitation (a) all obligations as lessee under Capital Leases and (b) any Debt
\nincurred in connection with an asset securitization program or otherwise as a
\nresult of the sale of accounts receivable, in each case as determined on a
\nConsolidated basis in accordance with GAAP.<\/p>\n
“Credit Facility” means the collective reference to the 364 Day
\nFacility, the Five Year Facility and the L\/C Facility or any one of them, as the
\ncontext requires.<\/p>\n
6<\/p>\n
11<\/p>\n
“Credit Parties” means, collectively, the Company and any Designated
\nBorrowers; “Credit Party” means any one of them.<\/p>\n
“Current SEC Reports” means the most recent report on Form 10-K, or any
\nsuccessor form, and any amendments thereto filed by the Company with the
\nSecurities and Exchange Commission (the “Commission”) and any reports on Forms
\n10-Q and\/or 8-K, or any successor forms, and any amendments thereto, filed by
\nthe Company with the Commission after the date of such report on Form 10-K.<\/p>\n
“Debt” of any Person means at any date, without duplication, the sum of
\nthe following calculated in accordance with GAAP: (a) all obligations of such
\nPerson for borrowed money, (b) all obligations of such Person evidenced by
\nbonds, debentures, notes or similar instruments, or upon which interest payments
\nare customarily made, (c) all obligations of such Person under conditional sale
\nor other title retention agreements relating to property purchased by such
\nPerson (other than customary reservations or retentions of title under
\nagreements with suppliers entered into in the ordinary course of business), (d)
\nall obligations of such Person issued or assumed as the deferred purchase price
\nof Property or services purchased by such Person (other than trade debt incurred
\nin the ordinary course of business and due within six months of the incurrence
\nthereof) which would appear as liabilities on a balance sheet of such Person,
\n(e) all obligations of such Person under take-or-pay or similar arrangements or
\nunder commodities agreements, (f) all Debt of others secured by (or for which
\nthe holder of such Debt has an existing right, contingent or otherwise, to be
\nsecured by) any Lien on, or payable out of the proceeds of production from,
\nproperty owned or acquired by such Person, whether or not the obligations
\nsecured thereby have been assumed, provided that for purposes hereof the amount
\nof such Debt shall be limited to the greater of (i) the amount of such Debt as
\nto which there is recourse to such Person and (ii) the fair market value of the
\nproperty which is subject to the Lien, (g) all Support Obligations of such
\nPerson, (h) the principal portion of all obligations of such Person under
\nCapital Leases, (i) all obligations of such Person in respect of Hedging
\nAgreements, (j) the maximum amount of all standby letters of credit issued or
\nbankers’ acceptances facilities created for the account of such Person and,
\nwithout duplication, all drafts drawn thereunder (to the extent unreimbursed),
\n(k) all preferred stock issued by such Person and required by the terms thereof
\nto be redeemed, or for which mandatory sinking fund payments are due, by a fixed
\ndate, (l) the outstanding attributed principal amount under any asset
\nsecuritization program and (m) the principal balance outstanding under any
\nsynthetic lease, tax retention operating lease, off-balance sheet loan or
\nsimilar off-balance sheet financing product to which such Person is a party,
\nwhere such transaction is considered borrowed money indebtedness for tax
\npurposes but is classified as an operating lease in accordance with GAAP. The
\nDebt of any Person shall include the Debt of any partnership or joint venture in
\nwhich such Person is a general partner or a joint venturer, but only to the
\nextent to which there is recourse to such Person for payment of such Debt.<\/p>\n
“Default” means any of the events specified in Section 11.1 which with
\nthe passage of time, the giving of notice or any other condition, would
\nconstitute an Event of Default.<\/p>\n
“Defaulting Lender” shall mean any Lender with respect to which a
\nLender Default is in effect.<\/p>\n
7<\/p>\n
12<\/p>\n
“Designated Borrower” means any Applicant Borrower that becomes a
\nBorrower under this Agreement in accordance with the provisions of Section 2.10.<\/p>\n
“Determination Date” shall have the meaning assigned thereto in Section
\n2.9(a).<\/p>\n
“Deutsche Mark” means the former national currency of the Federal
\nRepublic of Germany.<\/p>\n
“Dollars” or “$” means, unless otherwise qualified, dollars in lawful
\ncurrency of the United States.<\/p>\n
“Dollar Equivalent” means, at any time, (a) as to any amount
\ndenominated in Dollars, the amount thereof at such time, and (b) as to any
\namount denominated in an Offshore Currency, the equivalent amount in Dollars as
\ndetermined by the Administrative Agent at such time on the basis of the Spot
\nRate for the purchase of Dollars with such Offshore Currency on the most recent
\nDetermination Date provided for in Section 2.9(a).<\/p>\n
“Dutch Guilders” means the former national currency of the Netherlands.<\/p>\n
“Eligible Assignee” means, with respect to any assignment of the
\nrights, interest and obligations of a Lender hereunder, a Person that is at the
\ntime of such assignment (a) a commercial bank organized under the laws of the
\nUnited States or any state thereof, having combined capital and surplus in
\nexcess of $500,000,000, (b) a commercial bank organized under the laws of any
\nother country that is a member of the Organization of Economic Cooperation and
\nDevelopment, or a political subdivision of any such country, having combined
\ncapital and surplus in excess of $500,000,000, (c) a finance company, insurance
\ncompany or other financial institution which in the ordinary course of business
\nextends credit of the type extended hereunder and that has total assets in
\nexcess of $l,000,000,000, (d) already a Lender hereunder (whether as an original
\nparty to this Agreement or as the assignee of another Lender) or an Affiliate of
\na Lender hereunder, (e) the successor (whether by transfer of assets, merger or
\notherwise) to all or substantially all of the commercial lending business of the
\nassigning Lender, or (f) any other Person that has been approved in writing as
\nan Eligible Assignee by the Administrative Agent and, provided no Default or
\nEvent of Default has occurred and is continuing, the Company.<\/p>\n
“Employee Benefit Plan” means any employee benefit plan within the
\nmeaning of Section 3(3) of ERISA which (a) is maintained for employees of a
\nBorrower or any ERISA Affiliate or (b) has at any time within the preceding six
\nyears been maintained for the employees of a Borrower or any current or former
\nERISA Affiliate.<\/p>\n
“EMU” means Economic and Monetary Union as contemplated in the Treaty
\non European Union.<\/p>\n
“EMU Legislation” means legislative measures of the European Council
\n(including without limitation European Council regulations) for the introduction
\nof, changeover to or operation of the euro.<\/p>\n
8<\/p>\n
13<\/p>\n
“Environmental Laws” means any and all federal, state, local and
\nforeign laws, statutes, ordinances, rules, regulations, permits, licenses,
\napprovals, binding interpretations and orders of courts or Governmental
\nAuthorities, relating to the protection of human health or the environment,
\nincluding, but not limited to, requirements pertaining to the manufacture,
\nprocessing, distribution, use, treatment, storage, disposal, transportation,
\nhandling, reporting, licensing, permitting, investigation or remediation of
\nHazardous Materials.<\/p>\n
“Environmental Permits” shall have the meaning assigned thereto in
\nSection 6.1(h).<\/p>\n
“ERISA” means the Employee Retirement Income Security Act of 1974, and
\nthe rules and regulations thereunder, each as amended, supplemented or otherwise
\nmodified from time to time.<\/p>\n
“ERISA Affiliate” means any Person who together with a Borrower is
\ntreated as a single employer within the meaning of Section 414(b), (c), (m) or
\n(o) of the Code or Section 4001(b) of ERISA.<\/p>\n
“euro” means the single currency of Participating Member States of the
\nEuropean Community.<\/p>\n
“Eurodollar Reserve Percentage” means, for any day, the percentage
\n(expressed as a decimal and rounded upwards, if necessary, to the next higher
\n1\/100th of 1%) which is in effect for such day as prescribed by the Federal
\nReserve Board (or any successor) for determining the maximum reserve requirement
\n(including without limitation any basic, supplemental or emergency reserves) in
\nrespect of eurocurrency liabilities or any similar category of liabilities for a
\nmember bank of the Federal Reserve System in New York City and to which the
\nAdministrative Agent or any Lender is then subject.<\/p>\n
“European Community” means those European countries that are
\nsignatories to the Treaty on European Union.<\/p>\n
“Event of Default” means any of the events specified in Section 11.1,
\nprovided that any requirement for passage of time, giving of notice, or any
\nother condition, has been satisfied.<\/p>\n
“Extensions of Credit” means, as to any Lender at any time, an amount
\nequal to the sum of (a) the aggregate principal amount of all Revolving Credit
\nLoans made by such Lender then outstanding, (b) such Lender’s Five Year Facility
\nCommitment Percentage of the L\/C Obligations then outstanding, (c) the aggregate
\nprincipal amount of all Competitive Bid Loans made by such Lender then
\noutstanding and (d) the aggregate principal amount of all Swingline Loans made
\nby such Lender then outstanding. “Extension of Credit” means, as to any Lender
\n(a) any component of such Lender’s Extensions of Credit or (b) the making of, or
\nparticipation in, a Loan by such Lender or the issuance or extension of, or
\nparticipation in, a Letter of Credit by such Lender, as the context may require.<\/p>\n
“FDIC” means the Federal Deposit Insurance Corporation, or any
\nsuccessor thereto.<\/p>\n
9<\/p>\n
14<\/p>\n
“Federal Funds Rate” means, the rate per annum (rounded upwards, if
\nnecessary, to the next higher 1\/100th of 1%) representing the daily effective
\nfederal funds rate as quoted by the Administrative Agent and confirmed in
\nFederal Reserve Board Statistical Release H.15 (519) or any successor or
\nsubstitute publication selected by the Administrative Agent. If, for any reason,
\nsuch rate is not available, then “Federal Funds Rate” shall mean a daily rate
\nwhich is determined, in the opinion of the Administrative Agent, to be the rate
\nat which federal funds are being offered for sale in the national federal funds
\nmarket at 9:00 a.m. (Charlotte time). Rates for weekends or holidays shall be
\nthe same as the rate for the most immediate preceding Business Day.<\/p>\n
“Fiscal Year” means the fiscal year of the Company and its Subsidiaries
\nending on or about May 30.<\/p>\n
“Five Year Facility” means the multi-year revolving credit facility
\nestablished pursuant to Section 2.1 hereof.<\/p>\n
“Five Year Facility Commitment” means (a) as to any Lender, the
\nobligation of such Lender to make Revolving Credit Loans under the Five Year
\nFacility for the accounts of the Borrowers in an aggregate principal Dollar
\nEquivalent amount at any time outstanding not to exceed the amount set forth
\nopposite such Lender’s name on Schedule 1.1(a) hereto as such amount may be
\nincreased, reduced or modified at any time or from time to time pursuant to the
\nterms hereof and (b) as to all Lenders, the aggregate Five Year Facility
\nCommitment of all Lenders to make Revolving Credit Loans under the Five Year
\nFacility, as such amount may be increased, reduced or modified at any time or
\nfrom time to time pursuant to the terms hereof. The Five Year Facility
\nCommitment of all Lenders on the Closing Date shall be One Hundred and Fifty
\nMillion Dollars ($150,000,000).<\/p>\n
“Five Year Facility Commitment Percentage” means, as to any Lender at
\nany time, the ratio of (a) the amount of the Five Year Facility Commitment of
\nsuch Lender to (b) the aggregate Five Year Facility Commitment of all of the
\nLenders.<\/p>\n
“Five Year Facility Fee” shall have the meaning assigned thereto in
\nSection 4.3(b).<\/p>\n
“Five Year Facility Specified Maturity Date” means April 16, 2004 or
\nsuch later date as determined pursuant to Section 2.8(d).<\/p>\n
“Five Year Facility Termination Date” means the earliest of the dates
\nreferred to in Section 2.8(b).<\/p>\n
“Foreign Lender” means any Lender that is organized under the laws of a
\njurisdiction other than that in which the Company is located. For purposes of
\nthis definition, the United States of America, each state thereof and the
\nDistrict of Columbia shall be deemed to constitute a single jurisdiction.<\/p>\n
“Foreign Pension Plan” shall mean any plan, fund (including, without
\nlimitation, any superannuation fund) or other similar program established or
\nmaintained outside the United States of America by a Borrower or any one or more
\nof its Subsidiaries primarily for the benefit<\/p>\n
10<\/p>\n
15<\/p>\n
of employees of such Borrower or such Subsidiaries residing outside the United
\nStates of America, which plan, fund or other similar program provides, or
\nresults in, retirement income, a deferral of income in contemplation of
\nretirement or payments to be made upon termination of employment, and which plan
\nis not subject to ERISA or the Code.<\/p>\n
“Foreign Subsidiary” means each Subsidiary of the Company that is not
\nincorporated under the laws of the United States or any State or territory
\nthereof.<\/p>\n
“French Francs” means the former national currency of the Republic of
\nFrance.<\/p>\n
“GAAP” means generally accepted accounting principles, as recognized by
\nthe American Institute of Certified Public Accountants and the Financial
\nAccounting Standards Board, consistently applied and maintained on a consistent
\nbasis throughout the period indicated.<\/p>\n
“Governmental Approvals” means all authorizations, consents, approvals,
\nlicenses and exemptions of, registrations and filings with, and reports to, all
\nGovernmental Authorities.<\/p>\n
“Governmental Authority” means any nation, province, state or political
\nsubdivision thereof, and any government or any Person exercising executive,
\nlegislative, regulatory or administrative functions of or pertaining to
\ngovernment, and any corporation or other entity owned or controlled, through
\nstock or capital ownership or otherwise, by any of the foregoing.<\/p>\n
“Guaranteed Obligations” means, without duplication, all of the
\nobligations of the Designated Borrowers to the Lenders and the Administrative
\nAgent, whenever arising, under this Agreement, the Borrower Joinder Agreements
\nand the Notes (including, but not limited to, obligations with respect to
\nprincipal, interest and fees).<\/p>\n
“Hazardous Materials” means any substances or materials (a) which are
\nor become regulated or defined as hazardous wastes, hazardous substances,
\npollutants, contaminants, chemical substances or mixtures or toxic substances
\nunder any Environmental Law, (b) which are toxic, explosive, corrosive,
\nflammable, infectious, radioactive, carcinogenic, mutagenic or otherwise harmful
\nto human health or the environment and are or become regulated by any
\nGovernmental Authority, (c) the presence of which require investigation or
\nremediation under any Environmental Law, (d) the discharge or emission or
\nrelease of which requires a permit or license under any Applicable Law or other
\nGovernmental Approval, or (e) which contain, without limitation, asbestos,
\npolychlorinated biphenyls, urea formaldehyde foam insulation, petroleum
\nhydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel,
\nnatural gas or synthetic gas.<\/p>\n
“Hedging Agreement” means any agreement with respect to an interest
\nrate swap, collar, cap, floor or forward rate agreement, foreign currency
\nagreement or other agreement regarding the hedging of interest rate risk
\nexposure executed in connection with hedging the interest rate exposure of any
\nPerson, and any confirming letter executed pursuant to such hedging agreement,
\nall as amended, restated or otherwise modified from time to time.<\/p>\n
11<\/p>\n
16<\/p>\n
“Interest Coverage Ratio” means, as of the last day of any fiscal
\nquarter, the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest
\nExpense, in each case for the period of four (4) consecutive fiscal quarters
\nending as of such day.<\/p>\n
“Interest Period” shall have the meaning assigned thereto in Section
\n4.1(b).<\/p>\n
“Irrevocable Conversion Rate” with respect to any Available EMU
\nCurrency, means the rate adopted and irrevocably fixed by the European Council
\n(in accordance with Article 109l(4) of the Treaty on European Union) on December
\n31, 1998 as the official exchange rate at which National Currency Units of such
\nAvailable EMU Currency shall be converted into euro, and euro shall be converted
\ninto National Currency Units of such Available EMU Currency.<\/p>\n
“Issuing Lender” means NBD Bank in its capacity as issuer of any Letter
\nof Credit, and any other Lender mutually acceptable and on terms satisfactory to
\nthe Company and the Administrative Agent.<\/p>\n
“Italian Lira” means the former national currency of Italy.<\/p>\n
“Japanese Yen” means the unit of currency of Japan.<\/p>\n
“L\/C Application” means an application, in the form specified by any
\nIssuing Lender from time to time, requesting such Issuing Lender to issue a
\nLetter of Credit.<\/p>\n
“L\/C Commitment” means Ten Million Dollars ($10,000,000).<\/p>\n
“L\/C Facility” means the letter of credit facility established pursuant
\nto Article III hereof.<\/p>\n
“L\/C Fee” shall have the meaning assigned thereto in Section 3.3(a).<\/p>\n
“L\/C Obligations” means at any time, an amount equal to the sum of (a)
\nthe aggregate undrawn and unexpired amount of the then outstanding Letters of
\nCredit and (b) the aggregate amount of drawings under Letters of Credit which
\nhave not then been reimbursed pursuant to Section 3.5.<\/p>\n
“L\/C Participants” means the collective reference to all the Lenders
\nhaving a Five Year Facility Commitment other than the applicable Issuing Lender.<\/p>\n
“Lender” means each Person executing this Agreement as a Lender as set
\nforth on the signature pages hereto and each Person that hereafter becomes a
\nparty to this Agreement as a Lender pursuant to Section 13.10(b), other than any
\nparty hereto that ceases to be a party hereto pursuant to any Assignment and
\nAcceptance.<\/p>\n
“Lender Default” means (a) the refusal (which has not been retracted)
\nor the failure of a Lender to make available its portion of any Mandatory
\nBorrowing or (b) a Lender having notified in writing the Borrowers and\/or the
\nAdministrative Agent that such Lender does not<\/p>\n
12<\/p>\n
17<\/p>\n
intend to comply with its obligations under Section 2.6(b), in the case of
\neither clause (a) or (b) as a result of any takeover or control of such Lender
\nby any Governmental Authority.<\/p>\n
“Lending Office” means, with respect to any Lender, the office of such
\nLender maintaining such Lender’s Aggregate Revolving Credit Commitment
\nPercentage of the Revolving Credit Loans.<\/p>\n
“Letters of Credit” shall have the meaning assigned thereto in Section
\n3.1.<\/p>\n
“Leverage Ratio” means, as of the last day of any fiscal quarter, the
\nratio of (a) Consolidated Total Debt on such day to (b) Consolidated EBITDA for
\nthe period of four (4) consecutive fiscal quarters ending as of such day.<\/p>\n
“LIBOR” means, for any Offshore Rate Loan for any Interest Period
\ntherefor, the rate per annum (rounded upwards, if necessary, to the nearest
\n1\/100th of 1%) appearing on Telerate Page 3740 or 3750, as applicable (or any
\nsuccessor or equivalent page), as the London interbank offered rate for deposits
\nin the Applicable Currency and in the approximate amount of the Loan to be made
\nor continued as, or converted into, such Offshore Rate Loan at approximately
\n11:00 a.m. (London time) two (2) Business Days prior to the first day of such
\nInterest Period for a term comparable to such Interest Period; provided,
\nhowever, if more than one rate is specified on Telerate Page 3740 or 3750, as
\napplicable, the relevant rate shall be the arithmetic mean of all such rates. If
\nfor any reason such rate is not available, the term “LIBOR” shall mean, for any
\nOffshore Rate Loan for any Interest Period therefor,<\/p>\n
(a) the rate per annum (rounded upwards, if necessary, to the
\nnearest 1\/100th of 1%) appearing on Reuters Screen LIBO Page as the
\nLondon interbank offered rate for deposits in the Applicable Currency
\nand in the approximate amount of the Loan to be made or continued as,
\nor converted into, such Offshore Rate Loan at approximately 11:00 a.m.
\n(London time) two Business Days prior to the first day of such Interest
\nPeriod for a term comparable to such Interest Period; provided,
\nhowever, if more than one rate is specified on Reuters Screen LIBO
\nPage, the relevant rate shall be the arithmetic mean of all such rates,
\nor<\/p>\n
(b) if no rate is available on the Reuters Screen LIBO page,
\nthen the rate determined by the Administrative Agent at which the
\nApplicable Currency in the approximate amount of the Loan to be made or
\ncontinued as, or converted into, such Offshore Rate Loan is offered by
\nleading banks in the London interbank market at approximately 11:00
\na.m. (London time) two Business Days prior to the first day of the
\napplicable Interest Period (rounded upwards, if necessary, to the
\nnearest 1\/100th of 1%).<\/p>\n
“Lien” means, with respect to any asset, any mortgage, lien, pledge,
\ncharge, security interest or encumbrance of any kind in respect of such asset.
\nFor the purposes of this Agreement, a Person shall be deemed to own subject to a
\nLien any asset which it has acquired or holds subject to the interest of a
\nvendor or lessor under any conditional sale agreement, Capital Lease or other
\ntitle retention agreement relating to such asset.<\/p>\n
13<\/p>\n
18<\/p>\n
“Loan Documents” means, collectively, this Agreement, the Notes, the
\nL\/C Applications, any Borrower Joinder Agreement and each other document,
\ninstrument and agreement executed and delivered by any Credit Party, its
\nSubsidiaries or their counsel in connection with this Agreement or otherwise
\nreferred to herein or contemplated hereby, all as may be amended, restated or
\notherwise modified.<\/p>\n
“Loans” means the collective reference to the Revolving Credit Loans,
\nthe Competitive Bid Loans and the Swingline Loans; “Loan” means any one of such
\nLoans.<\/p>\n
“Mandatory Borrowing” shall have the meaning assigned thereto in
\nSection 2.6(b).<\/p>\n
“Material Adverse Effect” means any of (a) a material adverse effect on
\nthe business, assets, liabilities (actual or contingent), operations, condition
\n(financial or otherwise) or financial prospects of the Credit Parties and their
\nSubsidiaries taken as a whole, (b) a material adverse effect on the ability of
\nany such Credit Party to perform its obligations under the Loan Documents, in
\neach case to which it is a party, or (c) a material adverse effect on the rights
\nor remedies of the Lenders or the Administrative Agent hereunder or under any
\nother Loan Document.<\/p>\n
“Material Subsidiary” means a Subsidiary which is material to the
\nbusiness, assets, liabilities (actual or contingent), operations or financial
\ncondition of a Person and its Subsidiaries taken as a whole, including, without
\nlimitation, a Subsidiary whose principal assets are one or more Material
\nSubsidiaries.<\/p>\n
“MLA Cost” means an addition to the interest rate on a Revolving Credit
\nLoan to compensate any Lender for the cost imputed to a Lender in respect of any
\nRevolving Credit Loan made in an Offshore Currency during the term of such Loan
\nresulting from the imposition from time to time under or pursuant to the Bank of
\nEngland Act 1998 (the “Act”) and\/or by the Bank of England and\/or the Financial
\nServices Authority (the “FSA”) (or other United Kingdom governmental authorities
\nor agencies) of a requirement to place non-interest-bearing cash ratio deposits
\nor Special Deposits (whether interest bearing or not) with the Bank of England
\nand\/or pay fees to the FSA calculated by reference to liabilities used to fund
\nthe Revolving Credit Loan made in such Offshore Currency, as determined in
\naccordance with Schedule 4.1(f).<\/p>\n
“Multiemployer Plan” means a “multiemployer plan” as defined in Section
\n4001(a)(3) of ERISA to which a Borrower or any ERISA Affiliate is making, has
\nmade, is accruing or has accrued an obligation to make, contributions within the
\npreceding six years.<\/p>\n
“National Currency Unit” means a fraction or multiple of one euro
\nexpressed in units of an Available EMU Currency. Offshore Currency Loans
\nrequested to be denominated in National Currency Units shall be available only
\nin accordance with Section 1.5.<\/p>\n
“NationsBank” means NationsBank, N.A., a national banking association,
\nand its successors.<\/p>\n
14<\/p>\n
19<\/p>\n
“NBD Bank” means NBD Bank, a Michigan banking corporation, and its
\nsuccessors, together with any of its affiliates and branches.<\/p>\n
“Notes” means the collective reference to the Revolving Credit Notes;
\n“Note” means any one of such Notes.<\/p>\n
“Notice of Account Designation” shall have the meaning assigned thereto
\nin Section 2.2(b).<\/p>\n
“Notice of Conversion\/Continuation” shall have the meaning assigned
\nthereto in Section 4.2.<\/p>\n
“Notice of Prepayment” shall have the meaning assigned thereto in
\nSection 2.3(c).<\/p>\n
“Notice of Revolving Credit Borrowing” shall have the meaning assigned
\nthereto in Section 2.2(a).<\/p>\n
“Notice of Swingline Borrowing” shall have the meaning assigned thereto
\nin Section 2.6(d).<\/p>\n
“Obligations” means, in each case, whether now in existence or
\nhereafter arising: (a) the principal of and interest on (including interest
\naccruing after the filing of any bankruptcy or similar petition) the Loans, (b)
\nall payment and other obligations owing by the Credit Parties to any Lender or
\nAffiliate of a Lender or the Administrative Agent under any Hedging Agreement
\nwith any Lender or Affiliate of a Lender (which such Hedging Agreement is
\npermitted hereunder), and (c) all other fees and commissions (including
\nattorney’s fees), charges, indebtedness, loans, liabilities, financial
\naccommodations, obligations, covenants and duties owing by the Credit Parties to
\nthe Lenders or the Administrative Agent, of every kind, nature and description,
\ndirect or indirect, absolute or contingent, due or to become due, contractual or
\ntortious, liquidated or unliquidated, and whether or not evidenced by any note,
\nin each case under or in respect of this Agreement, any Note, or any of the
\nother Loan Documents.<\/p>\n
“Officer’s Compliance Certificate” shall have the meaning assigned
\nthereto in Section 7.2.<\/p>\n
“Offshore Currency” means (a) with respect to Revolving Credit Loans,
\neuro, any National Currency Unit, Sterling, Japanese Yen and any Agreed
\nAlternative Currency determined in accordance with Section 2.9(e) and (b) with
\nrespect to Competitive Bid Loans, Canadian Dollars and Australian Dollars.<\/p>\n
“Offshore Currency Loan” means any Offshore Rate Loan or Competitive
\nBid Loan denominated in an Offshore Currency.<\/p>\n
“Offshore Rate” means, for any Interest Period, with respect to an
\nOffshore Rate Loan, the rate of interest per annum (rounded upward to the next
\n1\/100th of 1%) determined by the Administrative Agent as follows:<\/p>\n
15<\/p>\n
20<\/p>\n
Offshore Rate = LIBOR
\n———————————–
\n. 1.00- Eurodollar Reserve Percentage<\/p>\n
The Offshore Rate shall be adjusted automatically as to all Offshore Rate Loans
\nthen outstanding as of the effective date of any change in the Eurodollar
\nReserve Percentage.<\/p>\n
“Offshore Rate Loan” means a Revolving Credit Loan or a Swingline Loan
\nbearing interest at a rate based upon the Offshore Rate as provided in Section
\n4.1(a) and, if a Revolving Credit Loan, may be an Offshore Currency Loan or a
\nRevolving Credit Loan denominated in Dollars.<\/p>\n
“Operating Lease” shall mean, as to any Person, as determined in
\naccordance with GAAP, any lease of property (whether real, personal or mixed) by
\nsuch Person as lessee which is not a Capital Lease.<\/p>\n
“Other Taxes” shall have the meaning assigned thereto in Section
\n4.11(b).<\/p>\n
“Participating Member State” means each country so described in any EMU
\nLegislation.<\/p>\n
“PBGC” means the Pension Benefit Guaranty Corporation referred to and
\ndefined in ERISA or any successor agency.<\/p>\n
“Pension Plan” means any Employee Benefit Plan, other than a
\nMultiemployer Plan, which is subject to the provisions of Title IV of ERISA or
\nSection 412 of the Code and is maintained for the employees of a Borrower or any
\nof its ERISA Affiliates.<\/p>\n
“Person” means an individual, corporation, limited liability company,
\npartnership, association, trust, business trust, joint venture, joint stock
\ncompany, pool, syndicate, sole proprietorship, unincorporated organization,
\nGovernmental Authority or any other form of entity or group thereof.<\/p>\n
“Prime Rate” means, at any time, the rate of interest per annum
\nestablished from time to time by NationsBank as its prime rate in effect at its
\nprincipal office in Charlotte, North Carolina. Each change in the Prime Rate
\nshall be effective as of the opening of business on the day such change in the
\nPrime Rate occurs. The parties hereto acknowledge that the rate established by
\nNationsBank as its Prime Rate is an index or base rate and shall not necessarily
\nbe its lowest or best rate charged to its customers or other banks.<\/p>\n
“Prior Bank Commitments” means the Company’s committed credit
\nfacilities with domestic lenders as of the Closing Date, which consist of those
\ncertain revolving credit facilities made available to the Company on February
\n28, 1997 by (a) NationsBank, N.A. in the amount of $30,000,000, (b) Bank of
\nAmerica Illinois in the amount of $35,000,000 and (c) NBD Bank in the amount of
\n$35,000,000.<\/p>\n
16<\/p>\n
21<\/p>\n
“Real Property” of any Person shall mean all the right, title and
\ninterest of such Person in and to land, improvements and fixtures, including
\nleaseholds.<\/p>\n
“Reimbursement Obligation” means the obligation of a Borrower to
\nreimburse each Issuing Lender pursuant to Section 3.5 for amounts drawn under
\nLetters of Credit issued at the request of such Borrower.<\/p>\n
“Register” shall have the meaning assigned thereto in Section 13.10(d).<\/p>\n
“Reportable Event” shall mean an event described in Section 4043(c) of
\nERISA with respect to a Pension Plan that is subject to Title IV of ERISA other
\nthan those events as to which the 30-day notice period is waived under
\nsubsection .22, .23, .27 or .28 of PBGC Regulation Section 4043.<\/p>\n
“Required Lenders” means, at any date, any combination of Lenders whose
\nAggregate Revolving Credit Commitment Percentage equals at least fifty-one
\npercent (51%) of the Aggregate Revolving Credit Commitment or, if the Aggregate
\nRevolving Credit Commitment has been terminated, any combination of Lenders who
\ncollectively hold at least fifty-one percent (51%) of the aggregate unpaid
\nprincipal amount of the Extensions of Credit (excluding the aggregate unpaid
\nprincipal amount of Competitive Bid Loans); provided that, for purposes of
\ndeclaring the Loans to be due and payable pursuant to Article XI, and for all
\npurposes after the Loans become due and payable pursuant to Article XI, the
\noutstanding Competitive Bid Loans of the Lenders shall be included in the
\nLenders’ respective Aggregate Revolving Credit Commitment Percentages in
\ndetermining the Required Lenders.<\/p>\n
“Responsible Officer” means any of the following: the chairman,
\npresident, chief executive officer, chief financial officer, treasurer or vice
\npresident and corporate controller of a Borrower or any other officer of a
\nBorrower reasonably acceptable to the Administrative Agent.<\/p>\n
“Revolving Credit Loans” means any revolving loan made to a Borrower
\npursuant to Section 2.2 under the 364 Day Facility or the Five Year Facility,
\nand all such revolving loans collectively as the context requires.<\/p>\n
“Revolving Credit Notes” means the collective reference to the
\nRevolving Credit Notes made by the Borrowers payable to the order of each Lender
\nwith a Five Year Facility Commitment or a 364 Day Facility Commitment,
\nsubstantially in the form of Exhibit A hereto, and any amendments and
\nmodifications thereto, any substitutes therefor, and any replacements,
\nrestatements, renewals or extensions thereof, in whole or in part; “Revolving
\nCredit Note” means any of such Revolving Credit Notes.<\/p>\n
“SEC Reports” shall have the meaning assigned thereto in Section
\n6.1(x).<\/p>\n
“Spot Rate” for a currency means the rate quoted by the Administrative
\nAgent as the spot rate for the purchase by the Administrative Agent of such
\ncurrency with another currency through its foreign exchange trading office at
\napproximately 8:00 a.m. (Charlotte time) on the date two Business Days prior to
\nthe date as of which the foreign exchange computation is made.<\/p>\n
17<\/p>\n
22<\/p>\n
“Sterling” means the currency of the United Kingdom.<\/p>\n
“Subordinated Debt” means the collective reference to Debt on Schedule
\n6.1(p) hereof designated as Subordinated Debt and any other Debt of the Credit
\nParties or any Subsidiary thereof subordinated in right and time of payment to
\nthe Obligations and otherwise permitted hereunder.<\/p>\n
“Subsidiary” means, with respect to any Person (the “parent”) at any
\ndate, any corporation, limited liability company, partnership, association or
\nother entity the accounts of which would be Consolidated with those of the
\nparent in the parent’s Consolidated financial statements if such financial
\nstatements were prepared in accordance with GAAP as of such date, as well as any
\nother corporation, limited liability company, partnership, association or other
\nentity (a) of which securities or other ownership interests representing more
\nthan fifty percent (50%) of the equity or more than fifty percent (50%) of the
\nordinary voting power or, in the case of a partnership, more than fifty percent
\n(50%) of the general partnership interests are, as of such date, owned,
\ncontrolled or held, or (b) that is, as of such date, otherwise controlled, by
\nthe parent or one or more subsidiaries of the parent or by the parent and one or
\nmore subsidiaries of the parent. Unless otherwise qualified, references to
\n“Subsidiary” or “Subsidiaries” herein shall refer to those of the Company.<\/p>\n
“Support Obligation” means, with respect to any Person and its
\nSubsidiaries, without duplication, any obligation, contingent or otherwise, of
\nany such Person pursuant to which such Person has directly or indirectly
\nguaranteed any Debt or other obligation of any other Person and, without
\nlimiting the generality of the foregoing, any obligation, direct or indirect,
\ncontingent or otherwise, of any such Person (a) to purchase or pay (or advance
\nor supply funds for the purchase or payment of) such Debt or other obligation
\n(whether arising by virtue of partnership arrangements, by agreement to keep
\nwell, to purchase assets, goods, securities or services, to take-or-pay, or to
\nmaintain financial statement condition or otherwise) or (b) entered into for the
\npurpose of assuring in any other manner the obligee of such Debt or other
\nobligation of the payment thereof or to protect such obligee against loss in
\nrespect thereof (in whole or in part); provided that the term Support Obligation
\nshall not include (i) endorsements for collection or deposit in the ordinary
\ncourse of business or (ii) a contractual commitment by one Person to invest in
\nanother Person for so long as such investment is expected to constitute a
\npermitted investment under Section 9.3.<\/p>\n
“Swingline Commitment” means the obligation of the Swingline Lender to
\nmake Swingline Loans under the Five Year Facility for the accounts of the
\nBorrowers in an aggregate principal amount at any time outstanding not to exceed
\nTwenty Million Dollars ($20,000,000).<\/p>\n
“Swingline Lender” means NBD Bank in its capacity as issuer of any
\nSwingline Loan.<\/p>\n
“Swingline Loans” means any revolving loan made pursuant to Section 2.6
\nand all such loans collectively as the context requires.<\/p>\n
18<\/p>\n
23<\/p>\n
“Swingline Termination Date” means the earlier to occur of (a) the
\nresignation of NBD Bank as Swingline Lender and (b) the Five Year Facility
\nTermination Date.<\/p>\n
“TARGET” means the Trans-European Automated Real-time Gross settlement
\nExpress Transfer system.<\/p>\n
“TARGET Business Day” means a day when TARGET is scheduled to be open
\nfor business.<\/p>\n
“Taxes” shall have the meaning assigned thereto in Section 4.11(a).<\/p>\n
“Termination Date” means the 364 Day Facility Termination Date or the
\nFive Year Facility Termination Date, as the context requires.<\/p>\n
“Termination Event” means any of the following that result in a
\nMaterial Adverse Effect: (a) a “Reportable Event” described in Section 4043 of
\nERISA, or (b) the withdrawal of a Borrower or any ERISA Affiliate from a Pension
\nPlan during a plan year in which it was a “substantial employer” as defined in
\nSection 4001(a)(2) of ERISA, or (c) the termination of a Pension Plan, the
\nfiling of a notice of intent to terminate a Pension Plan or the treatment of a
\nPension Plan amendment as a termination under Section 4041 of ERISA, or (d) the
\ninstitution of proceedings to terminate, or to seek the appointment of a trustee
\nwith respect to, any Pension Plan by the PBGC, or (e) any other event or
\ncondition which would constitute grounds under Section 4042(a) of ERISA for the
\ntermination of, or the appointment of a trustee to administer any Pension Plan,
\nor (f) the partial or complete withdrawal of a Borrower or any ERISA Affiliate
\nfrom a Multiemployer Plan, or (g) the imposition of a Lien pursuant to Section
\n412 of the Code or Section 302 of ERISA, or (h) any event or condition which
\nresults in the reorganization or insolvency of a Multiemployer Plan under
\nSections 4241 or 4245 of ERISA, (i) any event or condition which results in the
\ntermination of a Multiemployer Plan under Section 4041A of ERISA or the
\ninstitution by PBGC of proceedings to terminate a Multiemployer Plan under
\nSection 4042 of ERISA or (j) the withdrawal or partial withdrawal of any Credit
\nParty or ERISA Affiliate from a Multiemployer Plan.<\/p>\n
“Transition Period” means the period established by EMU Legislation,
\nbeginning on January 1, 1999 and ending on the Transition Period Cutoff Date,
\nduring which sums of money in the Participating Member States may be denominated
\nin either euro or National Currency Units.<\/p>\n
“Transition Period Cutoff Date” shall mean December 31, 2001, or such
\nother date as may be established by EMU Legislation.<\/p>\n
“Treaty on European Union” means the Treaty of Rome of March 25, 1957,
\nas amended by the Single European Act 1986 and the Maastricht Treaty (which was
\nsigned at Maastricht on February 1, 1992 and came into force on November 1,
\n1993), as amended from time to time.<\/p>\n
“UCC” means, with respect to any Letter of Credit, the Uniform
\nCommercial Code as in effect in the State in which the corporate headquarters of
\nthe relevant Issuing Lender is located or<\/p>\n
19<\/p>\n
24<\/p>\n
such other jurisdiction as is acceptable to the relevant Issuing Lender, as
\namended, restated or otherwise modified from time to time.<\/p>\n
“Unfunded Current Liability” of any Pension Plan means the amount, if
\nany, by which the actuarial present value of the accumulated plan benefits under
\nthe Pension Plan as of the close of its most recent year, determined in
\naccordance with actuarial assumptions at such time consistent with Statement of
\nFinancial Accounting Standards No 87, exceeds the sum of (a) the market value of
\nthe assets allocable thereto and (b) $100,000.<\/p>\n
“Uniform Customs” means the Uniform Customs and Practice for
\nDocumentary Credits (1993 Revision), International Chamber of Commerce
\nPublication No. 500.<\/p>\n
“United States” means the United States of America.<\/p>\n
“Utilization Fee” means a per annum rate equal to the Applicable
\nPercentage for Utilization Fee.<\/p>\n
“Wholly-Owned” means, with respect to a Subsidiary, that all of the
\nshares of capital stock or other ownership interests of such Subsidiary are,
\ndirectly or indirectly, owned or controlled by any Credit Party and\/or one or
\nmore of its Wholly-Owned Subsidiaries.<\/p>\n
“Year 2000 Problem” shall have the meaning assigned thereto in Section
\n5.2(h)(ii).<\/p>\n
SECTION 1.2 GENERAL.<\/p>\n
Unless otherwise specified, a reference in this Agreement to a
\nparticular section, subsection, Schedule or Exhibit is a reference to that
\nsection, subsection, Schedule or Exhibit of this Agreement. Wherever from the
\ncontext it appears appropriate, each term stated in either the singular or
\nplural shall include the singular and plural, and pronouns stated in the
\nmasculine, feminine or neuter gender shall include the masculine, feminine and
\nneuter. Any reference herein to “Charlotte time,” “Chicago time” or “London
\ntime” shall refer to the applicable time of day in Charlotte, North Carolina,
\nChicago, Illinois or London, England, as applicable.<\/p>\n
SECTION 1.3 OTHER DEFINITIONS AND PROVISIONS.<\/p>\n
(a) Use of Capitalized Terms. Unless otherwise defined therein,
\nall capitalized terms defined in this Agreement shall have the defined meanings
\nprovided herein when used in this Agreement, the Notes and the other Loan
\nDocuments or any certificate, report or other document made or delivered
\npursuant to this Agreement.<\/p>\n
(b) Miscellaneous. The words “hereof,” “herein” and “hereunder”
\nand words of similar import when used in this Agreement shall refer to this
\nAgreement as a whole and not to any particular provision of this Agreement.<\/p>\n
20<\/p>\n
25<\/p>\n
SECTION 1.4 CURRENCY EQUIVALENTS GENERALLY.<\/p>\n
For all purposes of this Agreement (but not for purposes of the
\npreparation of any financial statements delivered pursuant hereto), the
\nequivalent in any Offshore Currency or other currency of an amount in Dollars,
\nand the equivalent in Dollars of an amount in any Offshore Currency or other
\ncurrency, shall be determined at the Spot Rate.<\/p>\n
SECTION 1.5 INTRODUCTION OF EURO; NATIONAL CURRENCY UNIT
\nADVANCES; ETC.<\/p>\n
(a) National Currency Unit Advances. Prior to the Transition
\nPeriod Cutoff Date, and upon request by a Borrower in accordance with Section
\n2.2(a), Revolving Credit Loans that are Offshore Currency Loans may be funded
\nand maintained in National Currency Units of the Available EMU Currency
\ndesignated by such Borrower in its Notice of Revolving Credit Borrowing.
\nRepayments of Offshore Currency Loans that were funded in National Currency
\nUnits pursuant to this Section shall be made in such National Currency Units;
\nprovided, however, that any Offshore Currency Loan that is (i) denominated in
\nNational Currency Units and (ii) outstanding as of the Transition Period Cutoff
\nDate shall be automatically redenominated into euro as of the close of business
\non such date at the applicable Irrevocable Conversion Rate; and provided further
\nthat repayments of all such Offshore Currency Loans made after the Transition
\nPeriod Cutoff Date shall be denominated in euro. After the Transition Period
\nCutoff Date, Offshore Currency Loans shall no longer be funded in National
\nCurrency Units.<\/p>\n
(b) Conversions to Euro. For the avoidance of doubt, the parties
\nhereto affirm and agree that neither the fixation of the conversion rate of an
\nAvailable EMU Currency against the euro as a single currency, in accordance with
\nthe Treaty on European Union, nor the conversion of any Obligations under the
\nLoan Documents from an Available EMU Currency, or National Currency Units, into
\neuro, shall require the early termination of this Agreement or the prepayment of
\nany amount due under the Loan Documents or create any liability of one party to
\nanother party for any direct or consequential loss arising from any of such
\nevents.<\/p>\n
(c) Currency Translations; Rounding. Any translation from one
\ncurrency or currency unit to another shall be at the rate specified herein or,
\nif not so specified, then at the official rate of exchange legally recognized by
\nthe central bank of the country issuing such currency for the conversion of that
\ncurrency or currency unit into the other. Any such translation shall be rounded
\nup or down by the Administrative Agent acting in accordance with any Applicable
\nLaw on rounding or, if there is no such law, acting reasonably in accordance
\nwith its market practice.<\/p>\n
(d) Changes in Currency. If a change in any currency of a country
\noccurs, this Agreement will be amended to the extent the Administrative Agent
\n(acting reasonably) specifies to be necessary to reflect the change in currency
\nand to put the parties hereto in the same position, as far as possible, that
\nthey would have been in if no change in currency had occurred; provided that any
\nsuch amendments will not adversely affect the Lenders.<\/p>\n
21<\/p>\n
26<\/p>\n
ARTICLE II<\/p>\n
CREDIT FACILITIES<\/p>\n
SECTION 2.1 AMOUNT AND TERMS OF CREDIT.<\/p>\n
(a) Description of Facilities. Upon the terms and subject to the
\nconditions set forth in this Agreement: (i) the Lenders hereby grant to the
\nBorrowers a short term revolving credit facility (the “364 Day Facility”) and a
\nmulti-year revolving credit facility (the “Five Year Facility”) pursuant to
\nwhich each Lender severally agrees to make Revolving Credit Loans to the
\nrespective Borrowers in Dollars and Offshore Currencies in accordance with
\nSection 2.2 and the Swingline Lender agrees to make Swingline Loans to the
\nrespective Borrowers in Dollars in accordance with Section 2.6 and (ii) the
\nparties hereto agree that each Lender may, in its sole discretion, make bids to
\nmake Competitive Bid Loans to the respective Borrowers in Dollars, Canadian
\nDollars or Australian Dollars in accordance with Section 2.5; provided that (A)
\nthe aggregate principal Dollar Equivalent amount of all outstanding Revolving
\nCredit Loans (after giving effect to any amount requested) made under the 364
\nDay Facility shall not exceed the 364 Day Facility Commitment less the aggregate
\nprincipal Dollar Equivalent amount of all outstanding Competitive Bid Loans made
\nunder the 364 Day Facility; and the principal Dollar Equivalent amount of
\noutstanding Revolving Credit Loans made under the 364 Day Facility by any Lender
\nshall not at any time exceed such Lender’s 364 Day Facility Commitment; and (B)
\nthe aggregate principal Dollar Equivalent amount of all outstanding Revolving
\nCredit Loans (after giving effect to any amount requested) made under the Five
\nYear Facility plus the aggregate principal amount of all outstanding Swingline
\nLoans made under the Five Year Facility (after giving effect to the amount of
\nany Swingline Loans requested under the Five Year Facility and exclusive of
\nSwingline Loans made under the Five Year Facility which are repaid with the
\nproceeds of, and simultaneously with the incurrence of, Revolving Credit Loans
\nunder the Five Year Facility) shall not exceed the Five Year Facility Commitment
\nless the sum of (x) all outstanding L\/C Obligations plus (y) the aggregate
\nprincipal Dollar Equivalent amount of all outstanding Competitive Bid Loans made
\nunder the Five Year Facility; and the principal Dollar Equivalent amount of
\noutstanding Revolving Credit Loans made under the Five Year Facility by any
\nLender shall not at any time exceed such Lender’s Five Year Facility Commitment.
\nEach Revolving Credit Loan made by a Lender under the 364 Day Facility or the
\nFive Year Facility shall be in a principal Dollar Equivalent amount equal to
\nsuch Lender’s Commitment Percentage of the aggregate principal Dollar Equivalent
\namount of Revolving Credit Loans requested under such facility on such occasion.<\/p>\n
(b) Application of Facilities. The Credit Facility established
\nhereby shall be used by the Borrowers and their respective Subsidiaries to:<\/p>\n
(i) refinance existing Debt of the Company and its
\nSubsidiaries, including without limitation, Debt outstanding under the
\nPrior Bank Commitments;<\/p>\n
(ii) finance share repurchases and friendly acquisitions by
\nthe Company; and<\/p>\n
22<\/p>\n
27<\/p>\n
(iii) finance the working capital, capital expenditures and
\ngeneral corporate purposes of the Borrowers and their respective
\nSubsidiaries;<\/p>\n
and, accordingly, the Borrowers shall apply all amounts raised by them hereunder
\nin or towards satisfaction of such purposes and neither the Administrative Agent
\nand the Lenders nor any of them shall be obliged to concern themselves with such
\napplication.<\/p>\n
SECTION 2.2 PROCEDURE FOR ADVANCES OF REVOLVING CREDIT LOANS.<\/p>\n
(a) Requests for Revolving Credit Loans. A Borrower shall give the
\nAdministrative Agent irrevocable prior written notice in the form attached
\nhereto as Exhibit B-1 (a “Notice of Revolving Credit Borrowing”) not later than
\n11:00 a.m. (Charlotte time) (i) on the same Business Day as each Base Rate Loan,
\n(ii) at least three (3) Business Days before each Offshore Rate Loan denominated
\nin Dollars, and (iii) at least four (4) Business Days before each Offshore
\nCurrency Loan, of its intention to borrow, specifying (A) the date of such
\nborrowing, which shall be a Business Day, (B) whether such Revolving Credit Loan
\nis to be made under the 364 Day Facility or the Five Year Facility, (C) the
\namount of such borrowing, which shall be in an amount equal to the unused amount
\nof the 364 Day Facility Commitment or the Five Year Facility Commitment, as
\napplicable, or if less, (x) with respect to Base Rate Loans, in an aggregate
\nprincipal amount of $1,000,000 or a whole multiple of $500,000 in excess
\nthereof, (y) with respect to Offshore Rate Loans denominated in Dollars, in an
\naggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in
\nexcess thereof and (z) with respect to Offshore Rate Loans denominated in an
\nOffshore Currency, in an aggregate principal amount of a whole multiple of
\n1,000,000 units of such Offshore Currency in excess of an amount of such
\nOffshore Currency having a Dollar Equivalent of $5,000,000; (D) whether such
\nRevolving Credit Loan is to be an Offshore Rate Loan or Base Rate Loan and (E)
\nin the case of an Offshore Rate Loan, the duration of the Interest Period
\napplicable thereto and the Applicable Currency. Notices received after 11:00
\na.m. (Charlotte time) shall be deemed received on the next Business Day. The
\nAdministrative Agent shall promptly notify the Lenders of each Notice of
\nRevolving Credit Borrowing. The Dollar Equivalent amount of an Offshore Currency
\nLoan will be determined by the Administrative Agent for such Offshore Currency
\nLoan on the Determination Date therefor in accordance with Section 2.9(a).<\/p>\n
(b) Disbursement of Revolving Credit Loans. Each Lender will make
\navailable to the Administrative Agent, for the accounts of the respective
\nBorrowers, at the Administrative Agent’s Office in funds immediately available
\nto the Administrative Agent, such Lender’s Commitment Percentage of the
\nRevolving Credit Loans to be made on such borrowing date (i) in the case of a
\nRevolving Credit Loan denominated in Dollars, no later than 2:00 p.m. (Charlotte
\ntime) on the proposed borrowing date and (ii) in the case of a Revolving Credit
\nLoan that is an Offshore Currency Loan, by such time as the Administrative Agent
\nmay determine to be necessary for such funds to be credited on such date in
\naccordance with normal banking practices in the place of payment. Each Borrower
\nhereby irrevocably authorizes the Administrative Agent to disburse the proceeds
\nof each borrowing requested by such Borrower pursuant to this Section 2.2 in
\nimmediately available funds by crediting or wiring such proceeds to the deposit
\naccount of such Borrower identified in the most recent notice of account
\ndesignation, substantially in the form of Exhibit C hereto (a “Notice of Account
\nDesignation”), delivered by such Borrower to the<\/p>\n
23<\/p>\n
28<\/p>\n
Administrative Agent or as may be otherwise agreed upon by such Borrower and the
\nAdministrative Agent from time to time. Subject to Section 4.7 hereof, the
\nAdministrative Agent shall not be obligated to disburse the portion of the
\nproceeds of any Revolving Credit Loan requested pursuant to this Section 2.2 for
\nwhich any Lender is responsible to the extent that such Lender has not made
\navailable to the Administrative Agent its Commitment Percentage of such
\nRevolving Credit Loan.<\/p>\n
SECTION 2.3 REPAYMENT OF LOANS.<\/p>\n
(a) Repayment on Termination Date. Each Borrower agrees to repay
\nthe outstanding principal amount of all Loans made to it under the 364 Day
\nFacility in full on the 364 Day Facility Termination Date, with all accrued but
\nunpaid interest thereon. Each Borrower agrees to repay the outstanding principal
\namount of all Loans made to it under, and its Reimbursement Obligation under,
\nthe Five Year Facility in full on the Five Year Facility Termination Date, with
\nall accrued but unpaid interest thereon.<\/p>\n
(b) Mandatory Repayment of Loans.<\/p>\n
(i) If at any time (A) the sum of the outstanding principal
\nDollar Equivalent amount of all Loans made under the 364 Day Facility
\nexceeds the 364 Day Facility Commitment of all Lenders or (B) the sum
\nof the outstanding principal Dollar Equivalent amount of all Loans made
\nunder the Five Year Facility and all outstanding L\/C Obligations
\nexceeds the Five Year Facility Commitment of all Lenders, in each case
\nother than solely as a result of a change in applicable rates of
\nexchange between Dollars and Offshore Currencies, the Borrowers agree
\nto repay immediately upon notice from the Administrative Agent, by
\npayment to the Administrative Agent for the account of the Lenders,
\nRevolving Credit Loans, Swingline Loans, L\/C Obligations or Competitive
\nBid Loans and\/or furnish cash collateral reasonably satisfactory to the
\nAdministrative Agent, in an amount equal to such excess. Such cash
\ncollateral shall be applied in accordance with Section 11.2(b).<\/p>\n
(ii) If on any Determination Date, the Administrative Agent
\nshall have determined that the aggregate principal Dollar Equivalent
\namount of all Loans and L\/C Obligations then outstanding exceeds the
\nAggregate Revolving Credit Commitment by more than $500,000 due to a
\nchange in applicable rates of exchange between Dollars and Offshore
\nCurrencies, then the Administrative Agent shall give notice to the
\nBorrowers that a prepayment is required under this Section 2.3(b)(ii)
\nand the Borrowers agree thereupon to make prepayments of Loans within
\ntwo (2) Business Days after receipt of such notice such that, after
\ngiving effect to such prepayments, the aggregate Dollar Equivalent
\namount of all Loans and L\/C Obligations then outstanding does not
\nexceed the Aggregate Revolving Credit Commitment.<\/p>\n
(iii) Notwithstanding anything to the contrary in Section
\n2.3(b)(ii), the mandatory repayment described in such Section of any
\nOffshore Rate Loans may be delayed until the last day of the Interest
\nPeriod applicable to such Offshore Rate Loans; provided, that if the
\nBorrowers so delay repayment of Offshore Rate Loans, the<\/p>\n
24<\/p>\n
29<\/p>\n
Borrowers shall deposit or cause to be deposited, on the day repayment
\nwould have otherwise been required, in a cash collateral account opened
\nby the Administrative Agent, an amount equal to the aggregate principal
\namount of such delayed mandatory repayment of Offshore Rate Loans and
\nany accrued but unpaid interest thereon. Any repayment of such Offshore
\nRate Loans other than on the last day of the Interest Period applicable
\nthereto shall be accompanied by any amount required to be paid pursuant
\nto Section 4.9 hereof.<\/p>\n
(c) Optional Repayments. Each Borrower may at any time and from
\ntime to time repay the Revolving Credit Loans or Swingline Loans made to it, in
\nwhole or in part, upon at least three (3) Business Days irrevocable notice to
\nthe Administrative Agent with respect to Offshore Rate Loans and one (1)
\nBusiness Day irrevocable notice with respect to Base Rate Loans, in the form
\nattached hereto as Exhibit D (a “Notice of Prepayment”) specifying the date and
\namount of repayment; whether the repayment is of Revolving Credit Loans or
\nSwingline Loans and whether such loans were made under the 364 Day Facility or
\nthe Five Year Facility, or a combination thereof, and, if a combination, the
\namount allocable to each; and whether the repayment is of Offshore Rate Loans,
\nBase Rate Loans, or a combination thereof, and, if of a combination, the amount
\nallocable to each. Upon receipt of such notice, the Administrative Agent shall
\npromptly notify each Lender. If any such notice is given, the amount specified
\nin such notice shall be due and payable on the date set forth in such notice.
\nPartial repayments shall be in an aggregate amount of $1,000,000 or a whole
\nmultiple of $500,000 in excess thereof with respect to Base Rate Loans, $250,000
\nor a whole multiple of $100,000 in excess thereof with respect to Swingline
\nLoans and $5,000,000 or a whole multiple of $1,000,000 in excess thereof with
\nrespect to Offshore Rate Loans.<\/p>\n
(d) Limitation on Repayment of Offshore Rate Loans. The Borrowers
\nmay not repay any Offshore Rate Loan on any day other than on the last day of
\nthe Interest Period applicable thereto unless such repayment is accompanied by
\nany amount required to be paid pursuant to Section 4.9 hereof.<\/p>\n
(e) Limitation on Repayment of Competitive Bid Loans. The
\nBorrowers may not repay any Competitive Bid Loan on any day other than on the
\nlast day of the Interest Period applicable thereto except, and on such terms, as
\nagreed to by the Borrower to which the Competitive Bid Loan was made and the
\nLender which made such Competitive Bid Loan.<\/p>\n
SECTION 2.4 REVOLVING CREDIT NOTES.<\/p>\n
Each Lender’s Revolving Credit Loans and the obligation of each
\nBorrower to repay such Revolving Credit Loans shall be evidenced by separate
\nRevolving Credit Notes executed by each Borrower payable to the order of such
\nLender. Each Revolving Credit Note shall be dated the date hereof and shall bear
\ninterest on the unpaid principal amount thereof at the applicable interest rate
\nper annum specified in Section 4.1.<\/p>\n
25<\/p>\n
30<\/p>\n
SECTION 2.5 COMPETITIVE BID LOANS AND PROCEDURE.<\/p>\n
(a) Subject to the terms and conditions set forth herein, from
\ntime to time until the expiration or termination of the Aggregate Revolving
\nCredit Commitment, each Borrower may request Competitive Bids under the 364 Day
\nFacility or the Five Year Facility, and may (but shall not have any obligation
\nto) accept Competitive Bids and borrow Competitive Bid Loans, which shall be
\ndenominated in Dollars, Canadian Dollars or Australian Dollars; provided that
\n(i) the sum of the aggregate principal Dollar Equivalent amount of outstanding
\nRevolving Credit Loans made under the 364 Day Facility plus the aggregate
\nprincipal Dollar Equivalent amount of outstanding Competitive Bid Loans made
\nthereunder at any time shall not exceed the 364 Day Facility Commitment and (ii)
\nthe sum of the aggregate principal Dollar Equivalent amount of outstanding
\nRevolving Credit Loans and Swingline Loans made under the Five Year Facility
\nplus the aggregate principal Dollar Equivalent amount of outstanding Competitive
\nBid Loans made thereunder at any time shall not exceed the Five Year Facility
\nCommitment less the sum of all outstanding L\/C Obligations. To request
\nCompetitive Bids, a Borrower shall notify the Administrative Agent of such
\nrequest by telephone, not later than 11:00 a.m. (Charlotte time) one (1)
\nBusiness Day before the date of the proposed borrowing; provided that a
\nCompetitive Bid Request shall not be made within five (5) Business Days after
\nthe date of any previous Competitive Bid Request. Each such telephonic
\nCompetitive Bid Request shall be confirmed promptly by hand delivery or telecopy
\nto the Administrative Agent of a written Competitive Bid Request in a form
\napproved by the Administrative Agent and signed by the Company. Each such
\ntelephonic and written Competitive Bid Request shall specify the following
\ninformation:<\/p>\n
(i) the aggregate amount of the requested borrowing, which shall
\nbe a minimum of $5,000,000 (or the Dollar Equivalent thereof) and an
\nintegral multiple of 1,000,000 units of the applicable currency in
\nexcess thereof;<\/p>\n
(ii) the date of such borrowing, which shall be a Business Day;<\/p>\n
(iii) the Interest Period to be applicable to such borrowing,
\nwhich shall be a period contemplated by the definition of the term
\n“Interest Period”;<\/p>\n
(iv) whether the borrowing is to be made under the 364 Day
\nFacility or the Five Year Facility); and<\/p>\n
(v) the location and number of the Borrower’s account to which
\nfunds are to be disbursed.<\/p>\n
Promptly following receipt of a Competitive Bid Request in accordance
\nwith this Section, the Administrative Agent shall notify the Lenders of the
\ndetails thereof by telecopy, inviting the Lenders to submit Competitive Bids.<\/p>\n
(b) Each Lender may (but shall not have any obligation to) make
\none or more Competitive Bids to a Borrower in response to a Competitive Bid
\nRequest. Such Competitive Bids by a Lender may be for an amount greater than (or
\nless than) such Lender’s respective Commitments. Each Competitive Bid by a
\nLender must be in a form approved by the<\/p>\n
26<\/p>\n
31<\/p>\n
Administrative Agent and must be received by the Administrative Agent by
\ntelecopy, not later than 9:30 a.m. (Charlotte time) on the proposed date of such
\nborrowing. Competitive Bids that do not conform substantially to the form
\napproved by the Administrative Agent may be rejected by the Administrative
\nAgent, and the Administrative Agent shall notify the applicable Lender as
\npromptly as practicable. Each Competitive Bid shall specify (i) the principal
\namount (which shall be a minimum of $5,000,000 (or the Dollar Equivalent
\nthereof) and an integral multiple of 1,000,000 units of the applicable currency
\nin excess thereof and which may equal the entire principal amount of the
\nborrowing requested by the Borrower) of the Competitive Bid Loan or Loans that
\nthe applicable Lender is willing to make, (ii) the Competitive Bid Rate or Rates
\nat which such Lender is prepared to make such Loan or Loans (expressed as a
\npercentage rate per annum in the form of a decimal to no more than four decimal
\nplaces) and (iii) the Interest Period applicable to each such Loan and the last
\nday thereof.<\/p>\n
(c) The Administrative Agent shall promptly notify the Borrower
\nrequesting Competitive Bids by telecopy of the Competitive Bid Rate and the
\nprincipal amount specified in each Competitive Bid and the identity of the
\nLender that shall have made such Competitive Bid.<\/p>\n
(d) Subject only to the provisions of this paragraph, the Borrower
\nrequesting Competitive Bids may accept or reject any Competitive Bid. Such
\nBorrower shall notify the Administrative Agent by telephone, confirmed by
\ntelecopy in a form approved by the Administrative Agent, whether and to what
\nextent it has decided to accept or reject each Competitive Bid, not later than
\n10:30 a.m. (Charlotte time) on the date of the proposed borrowing; provided that
\n(i) the failure of such Borrower to give such notice shall be deemed to be a
\nrejection of each Competitive Bid, (ii) such Borrower shall not accept a
\nCompetitive Bid made at a particular Competitive Bid Rate if such Borrower
\nrejects a Competitive Bid made at a lower Competitive Bid Rate, (iii) the
\naggregate amount of the Competitive Bids accepted by such Borrower shall not
\nexceed the aggregate amount of the requested borrowing specified in the related
\nCompetitive Bid Request, (iv) to the extent necessary to comply with clause
\n(iii) above, such Borrower may accept Competitive Bids at the same Competitive
\nBid Rate in part, which acceptance, in the case of multiple Competitive Bids at
\nsuch Competitive Bid Rate, shall be made pro rata in accordance with the amount
\nof each such Competitive Bid, and (v) except pursuant to clause (iv) above, no
\nCompetitive Bid shall be accepted for a Competitive Bid Loan unless such
\nCompetitive Bid Loan is in a minimum principal amount of $5,000,000 (or the
\nDollar Equivalent thereof) and an integral multiple of l,000,000 units of the
\napplicable currency in excess thereof; provided further that if a Competitive
\nBid Loan must be in an amount less than $5,000,000 (or the Dollar Equivalent
\nthereof) because of the provisions of clause (iv) above, such Competitive Bid
\nLoan may be for a minimum of 1,000,000 units of the applicable currency or any
\nintegral multiple thereof, and in calculating the pro rata allocation of
\nacceptances of portions of multiple Competitive Bids at a particular Competitive
\nBid Rate pursuant to clause (iv) above the amounts shall be rounded to integral
\nmultiples of 1,000,000 units of the applicable currency in a manner determined
\nby the Borrower. A notice given by a Borrower pursuant to this paragraph shall
\nbe irrevocable.<\/p>\n
(e) The Administrative Agent shall promptly notify each bidding
\nLender by telecopy whether or not its Competitive Bid has been accepted (and, if
\nso, the amount and Competitive Bid Rate so accepted), and each successful bidder
\nwill thereupon become bound, subject to the<\/p>\n
27<\/p>\n
32<\/p>\n
terms and conditions hereof, to make the Competitive Bid Loan in respect of
\nwhich its Competitive Bid has been accepted.<\/p>\n
(f) Not later than 2:00 p.m. (Charlotte time) on the proposed
\nborrowing date, each Lender whose Competitive Bid has been accepted will make
\navailable to the Administrative Agent, for the account of the Borrower to whom
\nthe Competitive Bid Loan is to be made, at the office of the Administrative
\nAgent in funds immediately available to the Administrative Agent, the amount of
\nthe Competitive Bid Loan to be made on such borrowing date by such Lender. Each
\nBorrower hereby irrevocably authorizes the Administrative Agent to disburse the
\nproceeds of each borrowing requested pursuant to this Section 2.5 in immediately
\navailable funds by crediting or wiring such proceeds to the deposit account of
\nsuch Borrower identified in its most recent Notice of Account Designation or as
\nmay be otherwise agreed upon by such Borrower and the Administrative Agent from
\ntime to time. Subject to Section 4.7 hereof, the Administrative Agent shall not
\nbe obligated to disburse the proceeds of any Competitive Bid Loan requested
\npursuant to this Section 2.5 for which any Lender is responsible to the extent
\nthat such Lender has not made available to the Administrative Agent the amount
\nof such Competitive Bid Loan.<\/p>\n
(g) If the entity which is the Administrative Agent shall elect to
\nsubmit a Competitive Bid in its capacity as a Lender, it shall submit such
\nCompetitive Bid directly to the Borrower requesting Competitive Bids at least
\none quarter of an hour earlier than the time by which the other Lenders are
\nrequired to submit their Competitive Bids to the Administrative Agent pursuant
\nto paragraph (b) of this Section.<\/p>\n
(h) While any Competitive Bid Loan made under the 364 Day Facility
\nis outstanding, the 364 Day Facility Commitment of each Lender shall be deemed
\nused for all purposes by an amount equal to its pro rata share (based on its
\nrespective 364 Day Facility Commitment Percentage) of the principal Dollar
\nEquivalent amount of such Competitive Bid Loan.<\/p>\n
(i) While any Competitive Bid Loan made under the Five Year
\nFacility is outstanding, the Five Year Facility Commitment of each Lender shall
\nbe deemed used for all purposes by an amount equal to its pro rata share (based
\non its respective Five Year Facility Commitment Percentage) of the principal
\nDollar Equivalent amount of such Competitive Bid Loan.<\/p>\n
(j) (i) Each Lender shall maintain in accordance with its usual
\npractice an account or accounts evidencing the indebtedness of each
\nBorrower to such Lender resulting from each Competitive Bid Loan made
\nby such Lender to such Borrower from time to time, including the
\namounts of principal and interest payable and paid to such Lender from
\ntime to time hereunder.<\/p>\n
(ii) The entries maintained in the accounts maintained pursuant
\nto paragraph (i) shall be prima facie evidence of the existence and
\namounts of the Obligations therein recorded; provided, however, that
\nthe failure of the Administrative Agent or any Lender to maintain such
\naccounts or any error therein shall not in any manner affect the
\nobligation of each Borrower to repay the Obligations in accordance with
\ntheir terms.<\/p>\n
28<\/p>\n
33<\/p>\n
(iii) The Competitive Bid Loans made by each Lender shall be
\nevidenced by such Lender’s respective Revolving Credit Notes.<\/p>\n
(k) Each Borrower shall repay the outstanding principal amount of
\neach Competitive Bid Loan made to it in full on the last day of the Interest
\nPeriod applicable thereto, with all accrued but unpaid interest thereon.
\nCompetitive Bid Loans may not be repaid prior to the last day of the applicable
\nInterest Period except in accordance with Section 2.3(b) and (e).<\/p>\n
SECTION 2.6 SWINGLINE LOANS AND PROCEDURE.<\/p>\n
(a) Swingline Commitment. Subject to the terms and conditions set
\nforth herein, from time to time until the Swingline Termination Date, the
\nSwingline Lender agrees to make, under the Five Year Facility, a revolving loan
\nor revolving loans (each a “Swingline Loan” and, collectively, the “Swingline
\nLoans”) to the respective Borrowers, which Swingline Loans (i) shall be
\ndenominated in Dollars, (ii) may be repaid and reborrowed in accordance with the
\nprovisions hereof, (iii) shall not exceed in aggregate principal amount at any
\ntime outstanding, when combined with the sum of the aggregate principal Dollar
\nEquivalent amount of outstanding Revolving Credit Loans made under the Five Year
\nFacility plus the aggregate principal amount of Competitive Bid Loans made
\nthereunder at any time, the Five Year Facility Commitment less the sum of all
\noutstanding L\/C Obligations, (iv) shall not exceed in aggregate principal amount
\nat any time outstanding the Swingline Commitment and (v) shall bear interest at
\na rate mutually agreeable to the Swingline Lender and the applicable Borrower.
\nNotwithstanding anything to the contrary contained in this Section 2.6(a), (x)
\nthe Swingline Lender shall not be obligated to make any Swingline Loans at a
\ntime when a Lender Default exists unless the Swingline Lender has entered into
\narrangements satisfactory to it and the Borrowers to eliminate the Swingline
\nLender’s risk with respect to the Defaulting Lender’s or Lenders’ participation
\nin such Swingline Loans, including by cash collateralizing such Defaulting
\nLender’s or Lenders’ Commitment Percentage of the outstanding Swingline Loans
\nand (y) the Swingline Lender shall not make any Swingline Loan after it has
\nreceived written notice from any Borrower or the Required Lenders stating that a
\nDefault or an Event of Default exists and is continuing until such time as the
\nSwingline Lender shall have received written notice (A) of rescission of all
\nsuch notices from the party or parties originally delivering such notice or (B)
\nof the waiver of such Default or Event of Default by the Required Lenders.<\/p>\n
(b) Mandatory Borrowings.<\/p>\n
(i) On any Business Day, the Swingline Lender may, in its sole
\ndiscretion, advise the Administrative Agent to give notice to the
\nLenders that the Swingline Lender’s outstanding Swingline Loans under
\nthe Five Year Facility shall be funded with one or more borrowings of
\nRevolving Credit Loans denominated in Dollars (provided that such
\nnotice shall be deemed to have been automatically given with respect to
\noutstanding Swingline Loans upon the occurrence of a Default or an
\nEvent of Default under Section 11.1(i), (j), (k) or (l)), in which case
\none or more borrowings of Revolving Credit Loans under the Five Year
\nFacility constituting Base Rate Loans (each such Borrowing, a
\n“Mandatory Borrowing”) shall be made on the immediately succeeding
\nBusiness Day by all Lenders in accordance with each Lender’s Commitment
\nPercentage and the proceeds<\/p>\n
29<\/p>\n
34<\/p>\n
thereof shall be applied directly by the Administrative Agent to repay
\nthe Swingline Lender for such outstanding Swingline Loans. Each Lender
\nhereby irrevocably agrees to make Revolving Credit Loans upon one
\nBusiness Day’s notice pursuant to each Mandatory Borrowing in the
\namount and in the manner specified in the preceding sentence and on the
\ndate specified in writing by the Administrative Agent notwithstanding
\n(A) the amount of the Mandatory Borrowing may not comply with the
\nminimum borrowing amount otherwise required hereunder, (B) whether any
\nconditions specified in Section 5.4 are then satisfied, (C) whether a
\nDefault or an Event of Default then exists, (D) the date of such
\nMandatory Borrowing and (E) the amount of the Five Year Facility
\nCommitment or the Aggregate Revolving Credit Commitment at such time.
\nIn the event that any Mandatory Borrowing cannot for any reason be made
\non the date otherwise required above (including, without limitation, as
\na result of the occurrence of a Bankruptcy Event with respect to any
\nCredit Party), then each Lender hereby agrees that it shall forthwith
\npurchase (as of the date the Mandatory Borrowing would otherwise have
\noccurred, but adjusted for any payments received from the respective
\nBorrower on or after such date and prior to such purchase) from the
\nSwingline Lender such participations in the outstanding Swingline Loans
\nmade under the Five Year Facility as shall be necessary to cause the
\nLenders to share in such Swingline Loans ratably based upon their
\nrespective Commitment Percentages, provided that (x) all interest
\npayable on the Swingline Loans shall be for the account of the
\nSwingline Lender until the date as of which the respective
\nparticipation is required to be purchased and, to the extent
\nattributable to the purchased participation, shall be payable to the
\nparticipant from and after such date and (y) at the time any purchase
\nof participations pursuant to this sentence is actually made, the
\npurchasing Lender shall be required to pay the Swingline Lender
\ninterest on the principal amount of participations purchased for each
\nday from and including the day upon which the Mandatory Borrowing would
\notherwise have occurred to but excluding the date of payment for such
\nparticipation, at the overnight Federal Funds Rate for the first three
\ndays and at the rate otherwise applicable to Base Rate Loans hereunder
\nfor each day thereafter.<\/p>\n
(ii) To the extent amounts received from the Lenders pursuant to
\nSection 2.6(b)(i) above are not sufficient to repay in full the
\noutstanding Swingline Loans requested or required to be repaid, the
\nBorrowers agree to pay to the Swingline Lender on demand the amount
\nrequired to repay such Swingline Loans in full. In addition, each
\nBorrower hereby authorizes the Administrative Agent to charge any
\naccount maintained by such Borrower with the Swingline Lender (up to
\nthe amount available therein) in order to immediately pay the Swingline
\nLender the amount of such Swingline Loans to the extent amounts
\nreceived from the Lenders are not sufficient to repay in full the
\noutstanding Swingline Loans requested or required to be repaid. If any
\nportion of any such amount paid to the Swingline Lender shall be
\nrecovered by or on behalf of a Borrower from the Swingline Lender in
\nbankruptcy or otherwise, the loss of the amount so recovered shall be
\nratably shared among all the Lenders in accordance with their
\nrespective Commitment Percentages.<\/p>\n
(c) Amount of Each Swingline Borrowing. Each Swingline Loan
\nshall be made in an aggregate principal amount of $500,000 or a whole multiple
\nof $l00,000 in excess thereof.<\/p>\n
30<\/p>\n
35<\/p>\n
(d) Notice of Borrowing.<\/p>\n
(i) A Borrower shall give the Swingline Lender irrevocable prior
\nwritten notice (a “Notice of Swingline Borrowing”) substantially in the
\nform attached as Exhibit B-2 no later than 1:00 p.m. (Chicago time) (i)
\non the same Business Day as each Base Rate Loan, (ii) at least three
\n(3) Business Days before each Offshore Rate Loan denominated in Dollars
\nor (iii) on such other Business Day as may be mutually agreeable to the
\nSwingline Lender and such Borrower, of its intention to borrow,
\nspecifying (A) the date of such borrowing, which shall be a Business
\nDay, (B) the amount of such borrowing, which shall be in an amount
\nequal to the unused amount of the Swingline Commitment or less, (C)
\nwhether such Swingline Loan is to be an Offshore Rate Loan denominated
\nin Dollars, a Base Rate Loan or a Swingline Loan bearing interest at an
\nalternative rate mutually agreeable to the Swingline Lender and the
\napplicable Borrower and (D) in the case of an Offshore Rate Loan, the
\nduration of the Interest Period applicable thereto. Notices received
\nafter 1:00 p.m. (Chicago time) shall be deemed received on the next
\nBusiness Day.<\/p>\n
(ii) Mandatory Borrowings shall be made upon the notice
\nspecified in Section 2.6(b), with each Borrower irrevocably agreeing,
\nby its incurrence of any Swingline Loan, to the making of the Mandatory
\nBorrowings as set forth in Section 2.6(b).<\/p>\n
(e) Disbursement of Funds. Not later than 2:00 p.m. (Chicago time)
\non the proposed borrowing date, the Swingline Lender will make available to the
\nAdministrative Agent, for the account of the Borrower to whom the Swingline Loan
\nis to be made, at the office of the Administrative Agent in funds immediately
\navailable to the Administrative Agent, the amount of the Swingline Loan to be
\nmade on such borrowing date. In the case of Mandatory Borrowings, no later than
\n2:00 p.m. (Charlotte time) on the date specified in Section 2.6(b), each Lender
\nwill make available to the Administrative Agent, for the account of the
\nrespective Borrower, at the office of the Administrative Agent in funds
\nimmediately available to the Administrative Agent, such Lender’s Commitment
\nPercentage of Mandatory Borrowings to be made on such borrowing date. Each
\nBorrower hereby irrevocably authorizes the Administrative Agent to disburse the
\nproceeds of each borrowing requested pursuant to this Section 2.6 in immediately
\navailable funds by crediting or wiring such proceeds to the deposit account of
\nsuch Borrower identified in the most recent Notice of Account Designation or as
\nmay be otherwise agreed upon by such Borrower and the Administrative Agent from
\ntime to time or, in the case of Mandatory Borrowings, in the manner specified in
\nSection 2.6(b)(i). Subject to Section 4.7 hereof, the Administrative Agent shall
\nnot be obligated to disburse the proceeds of any Swingline Loan requested
\npursuant to this Section 2.6 to the extent that the Swingline Lender has not
\nmade available to the Administrative Agent the amount of such Swingline Loan.<\/p>\n
(f) Notes. The Swingline Lender’s Swingline Loans shall be
\nevidenced by such Lender’s respective Revolving Credit Notes.<\/p>\n
(g) Usage Under Five Year Facility Commitments. While any
\nSwingline Loan made under the Five Year Facility is outstanding, the Five Year
\nFacility Commitment of each Lender<\/p>\n
31<\/p>\n
36<\/p>\n
shall be deemed used for all purposes by an amount equal to its pro rata share
\n(based on its respective Five Year Facility Commitment Percentage) of the
\nprincipal amount of such Swingline Loan.<\/p>\n
(h) Notice to the Administrative Agent. The Swingline Lender shall
\npromptly give notice to the Administrative Agent of all Swingline Loans made
\nhereunder, and all repayments of such Swingline Loans.<\/p>\n
SECTION 2.7 COMMITMENT REDUCTIONS AND INCREASES.<\/p>\n
(a) Voluntary Reduction. The Borrowers shall have the right at any
\ntime and from time to time, upon at least four (4) Business Days’ prior written
\nnotice to the Administrative Agent, to permanently reduce (except as provided
\nbelow), without premium or penalty, (i) (A) the entire 364 Day Facility
\nCommitment at any time or (B) portions of the 364 Day Facility Commitment from
\ntime to time in an aggregate principal Dollar Equivalent amount not less than
\n$5,000,000 or any whole multiple of $500,000 in excess thereof or (ii) (A) the
\nentire Five Year Facility Commitment at any time or (B) portions of the Five
\nYear Facility Commitment from time to time, in an aggregate principal Dollar
\nEquivalent amount not less than $5,000,000 or any whole multiple of $500,000 in
\nexcess thereof.<\/p>\n
(b) Payments Related to a Voluntary Reduction.<\/p>\n
(i) Each permanent reduction of the 364 Day Facility Commitment
\nmade pursuant to this Section 2.7 shall be accompanied, if necessary,
\nby a payment of principal sufficient to reduce the aggregate
\noutstanding Revolving Credit Loans made under the 364 Day Facility to
\nthe amount of the new 364 Day Facility Commitment after such reduction
\nto the 364 Day Facility Commitment. Any reduction of the 364 Day
\nFacility Commitment to zero (including upon termination of the 364 Day
\nFacility on the 364 Day Facility Termination Date) shall be accompanied
\nby payment of all outstanding Revolving Credit Loans made under the 364
\nDay Facility and shall result in the termination of the 364 Day
\nFacility Commitment and the 364 Day Facility. If the reduction of the
\n364 Day Facility Commitment requires the repayment of any Offshore Rate
\nLoan, such repayment shall be accompanied by any amount required to be
\npaid pursuant to Section 4.9 hereof. Notwithstanding anything herein to
\nthe contrary, the 364 Day Facility Commitment may not be permanently
\nreduced by such an amount so that after such reduction, the 364 Day
\nFacility Commitment is less than the aggregate amount of all unpaid
\nprincipal of and interest on outstanding Competitive Bid Loans made
\nunder the 364 Day Facility.<\/p>\n
(ii) Each permanent reduction of the Five Year Facility
\nCommitment made pursuant to this Section 2.7 shall be accompanied, if
\nnecessary, by a payment of principal sufficient to reduce the aggregate
\noutstanding Revolving Credit Loans and Swingline Loans made under the
\nFive Year Facility and L\/C Obligations, as applicable, to the amount of
\nthe new Five Year Facility Commitment after such reduction to the Five
\nYear Facility Commitment and, if the Five Year Facility Commitment as
\nso reduced is less than the aggregate amount of all outstanding Letters
\nof Credit, the Borrower shall be<\/p>\n
32<\/p>\n
37<\/p>\n
required to deposit in a cash collateral account opened by the
\nAdministrative Agent an amount equal to the amount by which the
\naggregate then undrawn and unexpired amount of such Letters of Credit
\nexceeds the Five Year Facility Commitment as so reduced. Such cash
\ncollateral shall be applied in accordance with Section 11.2(b). Any
\nreduction of the Five Year Facility Commitment to zero (including upon
\ntermination of the Five Year Facility on the Five Year Facility
\nTermination Date) shall be accompanied by payment of all outstanding
\nRevolving Credit Loans and Swingline Loans made under the Five Year
\nFacility (and furnishing of cash collateral satisfactory to the
\nAdministrative Agent for all L\/C Obligations) and shall result in the
\ntermination of the Five Year Facility Commitment and the Five Year
\nFacility. If the reduction of the Five Year Facility Commitment
\nrequires the repayment of any Offshore Rate Loan, such repayment shall
\nbe accompanied by any amount required to be paid pursuant to Section
\n4.9 hereof. Notwithstanding anything herein to the contrary, the Five
\nYear Facility Commitment may not be permanently reduced by such an
\namount so that after such reduction, the Five Year Facility Commitment
\nis less than the aggregate amount of all unpaid principal of and
\ninterest on outstanding Competitive Bid Loans made under the Five Year
\nFacility.<\/p>\n
(c) Commitment Increases. Subject to the terms and conditions set forth
\nherein, upon 30 days’ advance written notice to the Administrative Agent, the
\nCompany shall have the right, at any time and from time to time from the Closing
\nDate until the termination of the Aggregate Revolving Credit Commitment (but no
\nmore than once a year, with each year for purposes hereof being deemed to begin
\nat Closing or an anniversary thereof), to increase the Aggregate Revolving
\nCredit Commitment to up to $400,000,000; provided that (i) the 364 Day Facility
\nCommitment and the Five Year Facility Commitment shall be increased on a pro
\nrata basis, (ii) any such increase shall be in a minimum principal amount of
\n$15,000,000 and an integral multiple of $5,000,000 in excess thereof, (iii) if
\nany Revolving Credit Loans are outstanding under a Credit Facility at the time
\nof any such increase, the Company shall make such payments and adjustments on
\nsuch Revolving Credit Loans (including payment of any break-funding amount owing
\nunder Section 4.9) as are necessary to give effect to the revised commitment
\npercentages and commitment amounts of the Lenders and (iv) the conditions to an
\nExtension of Credit in Sections 5.2 shall be satisfied after giving effect to
\nany such increase. An increase in the Credit Facility hereunder shall be subject
\nto satisfaction of the following: (A) the amount of such increase shall be
\noffered first to the existing Lenders, (B) each existing Lender shall have the
\nright, but not the obligation, to commit to all or a portion of the proposed
\nincrease to the respective Credit Facilities on a pro rata basis (based on its
\nthen existing Commitments), (C) in the event the additional commitments which
\nsuch existing Lenders are willing to take shall exceed the amount requested by
\nthe Company, then additional commitments shall be allocated in proportion to the
\ncommitments of such existing Lenders willing to take additional commitments and
\n(D) if the amount of the additional commitments requested by the Company shall
\nexceed the additional commitments which the existing Lenders under such facility
\nare willing to take, then the Company may invite other commercial banks and
\nfinancial institutions reasonably acceptable to the Administrative Agent to join
\nthis Agreement as Lenders hereunder for the portion of commitments not taken by
\nsuch existing Lenders, provided that (i) the minimum commitment of each such
\ninstitution equals or exceeds the smallest Commitment of an existing Lender
\nprior to the increase to the Credit Facility and (ii) such institutions shall
\nenter into such joinder agreements to give effect thereto as the Administrative
\nAgent and\/or the Company may<\/p>\n
33<\/p>\n
38<\/p>\n
reasonably request. In connection with any increase in, or new, Commitments
\npursuant to this Section, Schedule 1.1(a) hereto shall be revised to reflect the
\nmodified commitment percentages and commitments of the Lenders.<\/p>\n
SECTION 2.8 TERMINATION; EXTENSION OPTIONS.<\/p>\n
(a) Termination of 364 Day Facility. The 364 Day Facility shall
\nterminate on the earliest of (a) the 364 Day Facility Specified Maturity Date,
\n(b) the date of termination of the 364 Day Facility Commitment by the Company
\npursuant to Section 2.7(a), and (c) the date of termination by the
\nAdministrative Agent on behalf of the Lenders pursuant to Section 11.2(a).<\/p>\n
(b) Termination of Five Year Facility. The Five Year Facility
\nshall terminate on the earliest of (a) the Five Year Facility Specified Maturity
\nDate, (b) the date of termination of the Five Year Facility Commitment by the
\nCompany pursuant to Section 2.7(a), and (c) the date of termination by the
\nAdministrative Agent on behalf of the Lenders pursuant to Section 11.2(a).<\/p>\n
(c) 364 Day Facility Extension Option. Not earlier than the date
\n60 days prior to, nor later than the date 30 days prior to, the 364 Day Facility
\nSpecified Maturity Date then in effect, the Company may deliver to the
\nAdministrative Agent (which shall promptly transmit to each Lender) a notice
\nrequesting that the 364 Day Facility Specified Maturity Date be extended for an
\nadditional 364 day period. Within 15 days after its receipt of any such notice,
\neach Lender shall notify the Administrative Agent of its willingness or
\nunwillingness to so extend its 364 Day Facility Commitment. Any Lender that
\nshall fail to so notify the Administrative Agent within such period shall be
\ndeemed to have declined to extend its 364 Day Facility Commitment. If Lenders
\nholding a majority in amount of the aggregate 364 Day Facility Commitment (as of
\nthe date such 15-day notice period expires) agree to extend their 364 Day
\nFacility Commitments, the Administrative Agent shall so notify the Company and
\neach Lender that shall have consented to such request, whereupon (i) the
\nrespective 364 Day Facility Commitments of such consenting Lenders shall without
\nfurther act be extended for an additional 364 day period, (ii) the term “364 Day
\nFacility Specified Maturity Date” shall thenceforth mean, as to the Loans of
\nsuch consenting Lenders under the 364 Day Facility, the last day of such
\nadditional 364 day period and (iii) the 364 Day Facility Commitments of the
\nnon-extending Lenders shall terminate on the 364 Day Facility Specified Maturity
\nDate in effect prior to such extension and the Loans and other amounts owed to
\nsuch Lenders shall become due and payable on such date. If Lenders holding a
\nmajority (i.e., greater than 50%) in amount of the aggregate 364 Day Facility
\nCommitment (as of the date such 15-day notice period expires) shall not have
\nagreed to extend their 364 Day Facility Commitments, then none of the 364 Day
\nFacility Commitments shall be extended and the 364 Day Facility Specified
\nMaturity Date shall remain unchanged.<\/p>\n
(d) Five Year Facility Extension Option. Not earlier than the date
\n60 days prior to, nor later than the date 30 days prior to, the Five Year
\nFacility Specified Maturity Date then in effect, the Company may deliver to the
\nAdministrative Agent (which shall promptly transmit to each Lender) a notice
\nrequesting that the Five Year Facility Specified Maturity Date be extended for
\nan additional 364 day period. Within 15 days after its receipt of any such
\nnotice, each Lender shall notify the Administrative Agent of its willingness or
\nunwillingness to so extend its Five Year Facility Commitment. Any Lender that
\nshall fail to so notify the Administrative Agent<\/p>\n
34<\/p>\n
39<\/p>\n
within such period shall be deemed to have declined to extend its Five Year
\nFacility Commitment. If Lenders holding a majority in amount of the aggregate
\nFive Year Facility Commitment (as of the date such 15-day notice period expires)
\nagree to extend their Five Year Facility Commitments, the Administrative Agent
\nshall so notify the Company and each Lender that shall have consented to such
\nrequest, whereupon (i) the respective Five Year Facility Commitments of such
\nconsenting Lenders shall without further act be extended for an additional 364
\nday period, (ii) the term “Five Year Facility Specified Maturity Date” shall
\nthenceforth mean, as to the Loans of such consenting Lenders under the Five Year
\nFacility, the last day of such additional 364 day period and (iii) the Five Year
\nFacility Commitments of the non-extending Lenders shall terminate on the Five
\nYear Facility Specified Maturity Date in effect prior to such extension and the
\nLoans and other amounts owed to such Lenders shall become due and payable on
\nsuch date. If Lenders holding a majority (i.e., greater than 50%) in amount of
\nthe aggregate Five Year Facility Commitment (as of the date such 15-day notice
\nperiod expires) shall not have agreed to extend their Five Year Facility
\nCommitments, then none of the Five Year Facility Commitments shall be extended
\nand the Five Year Facility Specified Maturity Date shall remain unchanged.<\/p>\n
SECTION 2.9 UTILIZATION OF REVOLVING COMMITMENTS IN OFFSHORE
\nCURRENCIES.<\/p>\n
(a) The Administrative Agent will determine the Dollar Equivalent
\namount with respect to any (i) Revolving Credit Loan or Competitive Bid Loan
\nthat is an Offshore Currency Loan as of the requested borrowing date and as of
\nany requested continuation date and (ii) outstanding Offshore Currency Loans as
\nof the last Business Day of each month, and, during the occurrence and
\ncontinuation of an Event of Default, such other dates as may be requested by the
\nRequired Lenders (but in no event more frequently than once a week) (each such
\ndate under clause (i) and (ii), a “Determination Date”).<\/p>\n
(b) The Lenders shall be under no obligation to make Revolving
\nCredit Loans in a requested Offshore Currency if the Administrative Agent has
\nreceived notice from the Required Lenders by 12:30 p.m. (Charlotte time) three
\nBusiness Days prior to the date of a requested borrowing of an Offshore Currency
\nLoan that deposits in the relevant Offshore Currency (in the applicable amounts)
\nare not being offered to such Lenders in the interbank eurocurrency market for
\nsuch Interest Period in which event the Administrative Agent will give notice to
\nthe Borrower requesting such Offshore Currency Loan no later than 1:30 p.m.
\n(Charlotte time) on the third Business Day prior to the requested date of such
\nborrowing that the borrowing in the requested Offshore Currency is not then
\navailable, and notice thereof will also be given promptly by the Administrative
\nAgent to the Lenders. If the Administrative Agent shall have notified the
\nBorrower that any requested Offshore Currency Loan is not then available, the
\nNotice of Revolving Credit Borrowing relating to such requested Offshore
\nCurrency Loan shall be deemed to be withdrawn, the borrowing requested therein
\nshall not occur and the Administrative Agent will promptly so notify each
\nLender.<\/p>\n
(c) In the case of a proposed continuation of an Offshore Currency
\nLoan for an additional Interest Period pursuant to Section 4.2, the Lenders
\nshall be under no obligation to continue such Offshore Currency Loan if the
\nAdministrative Agent has received notice from the Required Lenders by 12:30 p.m.
\n(Charlotte time) two Business Days prior to the requested date<\/p>\n
35<\/p>\n
40<\/p>\n
of such continuation that deposits in the relevant Offshore Currency (in the
\napplicable amounts) are not being offered to such Lenders in the interbank
\neurocurrency market for such Interest Period in which event the Administrative
\nAgent will give notice to the Borrower requesting such continuation no later
\nthan 1:30 p.m. (Charlotte time) on the second Business Day prior to the
\nrequested date of such continuation that the continuation of such Offshore
\nCurrency Loan is not then available, and notice thereof will also be given
\npromptly by the Administrative Agent to the Lenders. If the Administrative Agent
\nshall have notified the Borrower requesting continuation of an Offshore Currency
\nLoan that the requested continuation is not then available, the Notice of
\nContinuation with respect thereto shall be deemed to be withdrawn and such
\nOffshore Currency Loan shall be repaid on the last day of the Interest Period
\nwith respect thereto.<\/p>\n
(d) Notwithstanding anything herein to the contrary, during the
\nexistence of a payment Default or an Event of Default, and at the request of the
\nRequired Lenders (or, in the case of a Competitive Bid Loan made in an Offshore
\nCurrency, the Lender that has made such Loan), all or any part of outstanding
\nOffshore Currency Loans shall be redenominated and converted into their Dollar
\nEquivalent of Base Rate Loans in Dollars on the last day of the Interest Period
\napplicable to any such Offshore Currency Loans. The Administrative Agent will
\npromptly notify the Company and the Lenders of any such redenomination and
\nconversion request.<\/p>\n
(e) The Company shall be entitled to request that Revolving Credit
\nLoans hereunder also be permitted to be made to a Borrower in any other lawful
\ncurrency (other than Dollars), in addition to the currencies specified in the
\ndefinition of “Offshore Currency” in Section 1.1, that in the opinion of the
\nAdministrative Agent and all of the Lenders is at such time freely traded in the
\noffshore interbank foreign exchange markets, freely transferable and freely
\nconvertible into Dollars and readily utilized for the settlement of private
\ninternational debt transactions (an “Agreed Alternative Currency”). The Company
\nshall deliver in writing to the Administrative Agent any request for designation
\nof an Agreed Alternative Currency in accordance with Section 13.1, to be
\nreceived by the Administrative Agent not later than 11:00 a.m. (Charlotte time)
\nat least 10 Business Days in advance of the date of any borrowing hereunder
\nproposed to be made in such Agreed Alternative Currency. Upon receipt of any
\nsuch request the Administrative Agent will promptly notify the Lenders thereof,
\nand each Lender will use its commercially reasonable efforts to respond to such
\nrequest within five (5) Business Days of receipt thereof. Each Lender may grant
\nor accept such request in its sole discretion. The Administrative Agent will
\npromptly notify the Company of the acceptance or rejection of any such request.<\/p>\n
SECTION 2.10 DESIGNATED BORROWERS.<\/p>\n
(a) Addition of Designated Borrower. The Company may request
\ndesignation of any of its Foreign Subsidiaries (an “Applicant Borrower”) as a
\nDesignated Borrower hereunder by delivery of such a request to the
\nAdministrative Agent together with an executed copy of a Borrower Joinder
\nAgreement in substantially the form attached hereto as Exhibit E. The
\nAdministrative Agent will promptly notify the Lenders of any such request
\ntogether with a copy of the Borrower Joinder Agreement executed by the Applicant
\nBorrower. The joinder of each Applicant Borrower as a designated Borrower will
\nbe subject to delivery of executed promissory notes, if any, required in
\nconnection therewith, and supporting resolutions, articles of<\/p>\n
36<\/p>\n
41<\/p>\n
incorporation, incumbency certificates, opinions of counsel and such other items
\nas the Administrative Agent and\/or the Required Lenders may reasonably request.
\nAny such addition of a Designated Borrower shall be effective five Business Days
\nafter receipt by the Administrative Agent of the items required by the
\nAdministrative Agent and\/or the Required Lenders in connection therewith. Such
\nDesignated Borrower shall thereupon become a party hereto and a Designated
\nBorrower hereunder and shall be (i) entitled to all rights and benefits of a
\nBorrower hereunder and under each instrument executed pursuant hereto and (ii)
\nsubject to all obligations of a Borrower hereunder and thereunder.<\/p>\n
(b) Removal of a Designated Borrower. The Company may request that
\nany of its Foreign Subsidiaries that is a Designated Borrower hereunder cease to
\nbe a Designated Borrower by delivering to the Administrative Agent (which shall
\npromptly deliver copies thereof to each Lender) a written notice to such effect.
\nSuch Designated Borrower shall cease to be a Borrower hereunder on the later to
\noccur of (i) the date the Administrative Agent receives such request and (ii)
\nthe date such Borrower has paid all of its Loans and all accrued and unpaid
\ninterest, fees and other obligations hereunder or in connection herewith.<\/p>\n
ARTICLE III<\/p>\n
LETTER OF CREDIT FACILITY<\/p>\n
SECTION 3.1 L\/C COMMITMENT.<\/p>\n
Subject to the terms and conditions hereof, each Issuing Lender, in
\nreliance on the agreements of the other Lenders set forth in Section 3.4(a),
\nagrees to issue standby and\/or trade letters of credit (“Letters of Credit”) for
\nthe respective accounts of the Borrowers on any Business Day from the Closing
\nDate through but not including the Five Year Facility Termination Date in such
\nform as may be approved from time to time by such Issuing Lender; provided, that
\nno Issuing Lender shall have any obligation to issue any Letter of Credit if,
\nafter giving effect to such issuance, (a) the L\/C Obligations would exceed the
\nL\/C Commitment or (b) the sum of (i) the aggregate principal Dollar Equivalent
\namount of outstanding Revolving Credit Loans made under the Five Year Facility,
\n(ii) the aggregate principal amount of outstanding Swingline Loans made under
\nthe Five Year Facility, (iii) the aggregate principal amount of L\/C Obligations
\nand (iv) the aggregate principal amount of Competitive Bid Loans made under the
\nFive Year Facility, would exceed the Five Year Facility Commitment. Each Letter
\nof Credit shall (A) be denominated in Dollars, (B) be a letter of credit issued
\nto support obligations of a Borrower or any of its Subsidiaries, contingent or
\notherwise, incurred in the ordinary course of business, (C) expire on a date no
\nlater than one year from the date of issuance thereof and no later than the Five
\nYear Facility Termination Date and (D) be subject to the Uniform Customs and, to
\nthe extent not inconsistent therewith, the laws of the State in which the
\ncorporate headquarters of the relevant Issuing Lender is located or such other
\njurisdiction as is acceptable to the relevant Issuing Lender. No Issuing Lender
\nshall at any time be obligated to issue any Letter of Credit hereunder if such
\nissuance would conflict with, or cause such Issuing Lender or any L\/C
\nParticipant to exceed any limits imposed by, any Applicable Law. References
\nherein<\/p>\n
37<\/p>\n
42<\/p>\n
to “issue” and derivations thereof with respect to Letters of Credit shall also
\ninclude extensions or modifications of any existing Letters of Credit, unless
\nthe context otherwise requires.<\/p>\n
SECTION 3.2 PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT.<\/p>\n
Any Borrower may from time to time request that any Issuing Lender
\nissue a Letter of Credit (or amend, extend or renew an outstanding Letter of
\nCredit) by delivering to such Issuing Lender at any Issuing Lender’s office at
\nany address mutually acceptable to such Borrower and such Issuing Lender an L\/C
\nApplication therefor, completed to the satisfaction of such Issuing Lender, and
\nsuch other certificates, documents and other papers and information as such
\nIssuing Lender may reasonably request. The L\/C Application will contain a
\nrepresentation and warranty that the conditions specified in Section 5.3 hereof
\nhave been satisfied or waived in writing by the Administrative Agent as of the
\ndate of the L\/C Application. Upon receipt of any L\/C Application, such Issuing
\nLender shall process such L\/C Application and the certificates, documents and
\nother papers and information delivered to it in connection therewith in
\naccordance with its customary procedures and shall, subject to Section 3.1, this
\nSection 3.2 and Article V hereof, promptly issue the Letter of Credit (or amend,
\nextend or renew the outstanding Letter of Credit) requested thereby (but in no
\nevent shall any Issuing Lender be required to issue any Letter of Credit (or
\namend, extend or renew an outstanding Letter of Credit) earlier than three (3)
\nBusiness Days after its receipt of the L\/C Application therefor and all such
\nother certificates, documents and other papers and information relating thereto)
\nby issuing the original of such Letter of Credit to the beneficiary thereof or
\nas otherwise may be agreed by such Issuing Lender and the Borrower submitting
\nthe L\/C Application. Within fifteen (15) Business Days after the end of each
\ncalendar quarter, each Issuing Lender shall report to each Lender all Letters of
\nCredit issued by it during the previous calendar quarter and the average daily
\nundrawn and unexpired amounts for all Letters of Credit for each day in such
\ncalendar quarter.<\/p>\n
SECTION 3.3 FEES AND OTHER CHARGES.<\/p>\n
(a) The Borrowers agree to pay to each Issuing Lender, for the
\naccount of such Issuing Lender and the L\/C Participants, a letter of credit fee
\n(the “L\/C Fee”) with respect to each Letter of Credit issued by such Issuing
\nLender in an amount equal to the Applicable Percentage for L\/C Fee times the
\naverage daily undrawn amount of such issued Letters of Credit as reported by
\nsuch Issuing Lender pursuant to Section 3.2. Such fee shall be payable quarterly
\nin arrears on the last Business Day of each calendar quarter, commencing on the
\nfirst of such dates to occur after the Closing, and on the Five Year Facility
\nTermination Date.<\/p>\n
(b) Each Issuing Lender shall, promptly following its receipt
\nthereof, distribute to the L\/C Participants the L\/C Fees received by such
\nIssuing Lender in accordance with their respective Five Year Facility Commitment
\nPercentages.<\/p>\n
(c) In addition to the L\/C Fees, each Borrower agrees to pay to
\nthe relevant Issuing Lender that has issued a Letter of Credit at the request of
\nsuch Borrower, for such Issuing Lender’s own account without sharing by the
\nother Lenders, (i) such fronting and negotiation fees as may be mutually agreed
\nupon by such Issuing Lender and the Company from time to time and (ii) customary
\ncharges of such Issuing Lender with respect to the issuance, amendment,<\/p>\n
38<\/p>\n
43<\/p>\n
transfer, administration, cancellation and conversion of, and drawings under,
\nsuch Letters of Credit.<\/p>\n
SECTION 3.4 L\/C PARTICIPATIONS.<\/p>\n
(a) Each Issuing Lender irrevocably agrees to grant and hereby
\ngrants to each L\/C Participant, and, to induce such Issuing Lender to issue
\nLetters of Credit hereunder, each L\/C Participant irrevocably agrees to accept
\nand purchase and hereby accepts and purchases from such Issuing Lender, on the
\nterms and conditions hereinafter stated, for such L\/C Participant’s own account
\nand risk, an undivided interest equal to such L\/C Participant’s Five Year
\nFacility Commitment Percentage in such Issuing Lender’s obligations and rights
\nunder each Letter of Credit issued hereunder and the amount of each draft paid
\nby such Issuing Lender thereunder. Each L\/C Participant unconditionally and
\nirrevocably agrees with each Issuing Lender that, if a draft is paid under any
\nLetter of Credit for which such Issuing Lender is not reimbursed in full by the
\nBorrowers in accordance with the terms of this Agreement, such L\/C Participant
\nshall pay to such Issuing Lender upon demand at such Issuing Lender’s address
\nfor notices specified herein an amount equal to such L\/C Participant’s Five Year
\nFacility Commitment Percentage of the amount of such draft, or any part thereof,
\nwhich is not so reimbursed.<\/p>\n
(b) Upon becoming aware of any amount required to be paid by any
\nL\/C Participant to any Issuing Lender pursuant to Section 3.4(a) in respect of
\nany unreimbursed portion of any payment made by such Issuing Lender under any
\nLetter of Credit, the Administrative Agent shall notify each L\/C Participant of
\nthe amount and due date of such required payment and such L\/C Participant shall
\npay to such Issuing Lender the amount specified on the applicable due date. If
\nany such amount is paid to such Issuing Lender after the date such payment is
\ndue, such L\/C Participant shall pay to such Issuing Lender on demand, in
\naddition to such amount, the product of (i) such amount, times (ii) the daily
\naverage Federal Funds Rate as determined by the Administrative Agent during the
\nperiod from and including the date such payment is due to the date on which such
\npayment is immediately available to such Issuing Lender, times (iii) a fraction
\nthe numerator of which is the number of days that elapse during such period and
\nthe denominator of which is 360. A certificate of any Issuing Lender with
\nrespect to any amounts owing under this Section 3.4(b) shall be conclusive in
\nthe absence of manifest error. With respect to payment to any Issuing Lender of
\nthe unreimbursed amounts described in this Section 3.4(b), if the L\/C
\nParticipants receive notice that any such payment is due (A) prior to 1:00 p.m.
\n(Charlotte time) on any Business Day, such payment shall be due that Business
\nDay, and (B) after 1:00 p.m. (Charlotte time) on any Business Day, such payment
\nshall be due on the following Business Day.<\/p>\n
(c) Whenever, at any time after any Issuing Lender has made
\npayment under any Letter of Credit and has received from any L\/C Participant its
\nFive Year Facility Commitment Percentage of such payment in accordance with this
\nSection 3.4, such Issuing Lender receives any payment related to such Letter of
\nCredit (whether directly from a Borrower or otherwise, or any payment of
\ninterest on account thereof), such Issuing Lender will distribute to such L\/C
\nParticipant its pro rata share thereof in accordance with such L\/C Participant’s
\nFive Year Facility Commitment Percentage; provided, that in the event that any
\nsuch payment received by such Issuing Lender shall be required to be returned by
\nsuch Issuing Lender, such L\/C Participant<\/p>\n
39<\/p>\n
44<\/p>\n
shall return to such Issuing Lender the portion thereof previously distributed
\nby such Issuing Lender to it.<\/p>\n
SECTION 3.5 REIMBURSEMENT OBLIGATION OF THE BORROWERS.<\/p>\n
Each Borrower agrees to reimburse each Issuing Lender on each date such
\nIssuing Lender notifies such Borrower of the date and amount of a draft paid
\nunder any Letter of Credit requested by such Borrower for the amount of (i) such
\ndraft so paid and (ii) any taxes, fees, charges or other costs or expenses
\nincurred by any Issuing Lender in connection with such payment. Each such
\npayment shall be made to any Issuing Lender at its address for notices specified
\nherein in lawful money of the United States and in immediately available funds.
\nInterest shall be payable on any and all amounts remaining unpaid by any
\nBorrower under this Article III from the date such amounts become payable
\n(whether at stated maturity, by acceleration or otherwise) until payment in full
\nat the rate which would be payable on any outstanding Base Rate Loans which were
\nthen overdue. If any Borrower fails to timely reimburse such Issuing Lender on
\nthe date such Borrower receives the notice referred to in this Section 3.5, such
\nBorrower shall be deemed to have timely given a Notice of Revolving Credit
\nBorrowing pursuant to Section 2.2 hereunder to the Administrative Agent
\nrequesting the Lenders to make a Base Rate Loan under the Five Year Facility on
\nsuch date in an amount equal to the amount of such draft paid, together with any
\ntaxes, fees, charges or other costs or expenses incurred by any Issuing Lender
\nand to be reimbursed pursuant to this Section 3.5 and, regardless of whether or
\nnot the conditions precedent specified in Article VI have been satisfied, the
\nLenders shall make Base Rate Loans in such amount, the proceeds of which shall
\nbe applied to reimburse such Issuing Lender for the amount of the related
\ndrawing and costs and expenses. Notwithstanding the foregoing, nothing in this
\nSection 3.5 shall obligate the Lenders to make such Base Rate Loans if the
\nmaking of such Base Rate Loans would violate the automatic stay under federal
\nbankruptcy laws.<\/p>\n
SECTION 3.6 OBLIGATIONS ABSOLUTE.<\/p>\n
Each Borrower’s obligations under this Article III (including without
\nlimitation the Reimbursement Obligation) shall be absolute and unconditional
\nunder any and all circumstances and irrespective of any set-off, counterclaim or
\ndefense to payment which such Borrower may have or have had against any Issuing
\nLender or any beneficiary of a Letter of Credit. Each Borrower also agrees with
\neach Issuing Lender that no Issuing Lender shall be responsible for, and such
\nBorrower’s Reimbursement Obligation under Section 3.5 shall not be affected by,
\namong other things, the validity or genuineness of documents or of any
\nendorsements thereon, even though such documents shall in fact prove to be
\ninvalid, fraudulent or forged, or any dispute between or among such Borrower and
\nany beneficiary of any Letter of Credit or any other party to which such Letter
\nof Credit may be transferred or any claims whatsoever of such Borrower against
\nany beneficiary of such Letter of Credit or any such transferee. No Issuing
\nLender shall be liable for any error, omission, interruption or delay in
\ntransmission, dispatch or delivery of any message or advice, however
\ntransmitted, in connection with any Letter of Credit, except for errors or
\nomissions caused by such Issuing Lender’s gross negligence or willful
\nmisconduct. Each Borrower agrees that any action taken or omitted by any Issuing
\nLender under or in connection with any Letter of Credit or the related drafts or
\ndocuments, if done in the absence of<\/p>\n
40<\/p>\n
45<\/p>\n
gross negligence or willful misconduct and in accordance with the standards of
\ncare specified in the Uniform Customs and, to the extent not inconsistent
\ntherewith, the UCC shall be binding on such Borrower and shall not result in any
\nliability of any Issuing Lender to such Borrower. The responsibility of each
\nIssuing Lender to any Borrower in connection with any draft presented for
\npayment under any Letter of Credit shall, in addition to any payment obligation
\nexpressly provided for in such Letter of Credit, be limited to determining that
\nthe documents (including each draft) delivered under such Letter of Credit in
\nconnection with such presentment are in conformity with such Letter of Credit.<\/p>\n
SECTION 3.7 EFFECT OF L\/C APPLICATION.<\/p>\n
To the extent that any provision of any L\/C Application related to any
\nLetter of Credit is inconsistent with the provisions of this Article III, the
\nprovisions of this Article III shall apply.<\/p>\n
ARTICLE IV<\/p>\n
GENERAL LOAN PROVISIONS<\/p>\n
SECTION 4.1 INTEREST.<\/p>\n
(a) Interest Rate Options. Subject to the provisions of this
\nSection 4.1, at the election of a Borrower, the aggregate principal balance of
\nany Revolving Credit Loans and Swingline Loans (if the Swingline Lender consents
\nto such election) shall bear interest at (i) the Base Rate or (ii) the Offshore
\nRate plus the Applicable Percentage for Offshore Rate Loans under the 364 Day
\nFacility or the Five Year Facility, as applicable; provided that such interest
\nrate shall be increased by any amount required pursuant to Section 4.1(f). Such
\nBorrower shall select the rate of interest, Interest Period, if any, and
\nApplicable Currency, in the case of an Offshore Currency Loan, applicable to any
\nRevolving Credit Loan or Swingline Loan at the time a Notice of Revolving Credit
\nBorrowing is given pursuant to Section 2.2, or at the time a Notice of Swingline
\nBorrowing is given pursuant to Section 2.6(d) or at the time a Notice of
\nConversion\/Continuation is given pursuant to Section 4.2. Each Revolving Credit
\nLoan, Swingline Loan, or portion thereof bearing interest based on the Base Rate
\nshall be a “Base Rate Loan,” and each Revolving Credit Loan, Swingline Loan, or
\nportion thereof bearing interest based on the Offshore Rate shall be an
\n“Offshore Rate Loan.” Any Revolving Credit Loan or Swingline Loan or any portion
\nthereof as to which the Borrower requesting such Revolving Credit Loan or
\nSwingline Loan has not duly specified an interest rate as provided herein shall
\nbe deemed a Base Rate Loan. A Competitive Bid Loan will bear interest at the
\nCompetitive Bid Rate specified in the Competitive Bid accepted by the Borrower
\nwith respect to such Competitive Bid Loan.<\/p>\n
(b) Interest Periods. In connection with each Offshore Rate Loan
\nand each Competitive Bid Loan, a Borrower, by giving notice at the times
\ndescribed in Section 4.1(a), shall elect an interest period (each, an “Interest
\nPeriod”) to be applicable to such Revolving Credit Loan or such Competitive Bid
\nLoan, which Interest Period shall, unless otherwise agreed by the Administrative
\nAgent and the Lenders, be a period of one (1), two (2), three (3), or, if<\/p>\n
41<\/p>\n
46<\/p>\n
available to all Lenders for the requested Available Currency, six (6) months
\nwith respect to each Offshore Rate Loan and a period of seven (7) days to 183
\ndays with respect to each Competitive Bid Loan; provided that:<\/p>\n
(i) the Interest Period shall commence on the date of advance of
\nor conversion to any Offshore Rate Loan and, in the case of immediately
\nsuccessive Interest Periods, each successive Interest Period shall
\ncommence on the date on which the next preceding Interest Period
\nexpires;<\/p>\n
(ii) if any Interest Period would otherwise expire on a day that
\nis not a Business Day, such Interest Period shall expire on the next
\nsucceeding Business Day; provided, that if any Interest Period with
\nrespect to an Offshore Rate Loan would otherwise expire on a day that
\nis not a Business Day but is a day of the month after which no further
\nBusiness Day occurs in such month, such Interest Period shall expire on
\nthe next preceding Business Day;<\/p>\n
(iii) any Interest Period with respect to an Offshore Rate Loan
\nthat begins on the last Business Day of a calendar month (or on a day
\nfor which there is no numerically corresponding day in the calendar
\nmonth at the end of such Interest Period) shall end on the last
\nBusiness Day of the relevant calendar month at the end of such Interest
\nPeriod;<\/p>\n
(iv) no Interest Period shall extend beyond the Termination Date
\nof the facility under which the Offshore Rate Loan or Competitive Bid
\nLoan with respect to which such Interest Period relates was made; and<\/p>\n
(v) there shall be no more than six (6) Offshore Rate Loans
\noutstanding hereunder at any time (it being understood that, for
\npurposes hereof, Offshore Rate Loans with different Interest Periods
\nshall be considered as separate Offshore Rate Loans, even if they begin
\non the same date, although borrowings, extensions and conversions may,
\nin accordance with the provisions hereof, be combined by a Borrower at
\nthe end of existing Interest Periods to constitute a new Offshore Rate
\nLoan with a single Interest Period).<\/p>\n
(c) Default Rate, etc. Subject to Section 11.3, at the discretion
\nof the Administrative Agent and the Required Lenders, upon the occurrence and
\nduring the continuance of an Event of Default, (i) the Borrowers shall no longer
\nhave the option to request Offshore Rate Loans, (ii) all outstanding Offshore
\nRate Loans shall bear interest at a rate per annum equal to two percent (2%) in
\nexcess of the rate then applicable to such Offshore Rate Loans until the end of
\nthe applicable Interest Period and thereafter at a rate equal to two percent
\n(2%) in excess of the rate then applicable to Base Rate Loans, (iii) all
\noutstanding Base Rate Loans shall bear interest at a rate per annum equal to two
\npercent (2%) in excess of the rate then applicable to Base Rate Loans and (iv)
\neach outstanding Competitive Bid Loan shall bear interest at a rate per annum
\nequal to two percent (2%) in excess of the rate then applicable to such
\nCompetitive Bid Loan. Interest shall continue to accrue on the amount of Loans
\noutstanding after the filing by or against a Borrower of any petition seeking
\nany relief in bankruptcy or under any act or law pertaining to insolvency or
\ndebtor relief, whether state, federal or foreign.<\/p>\n
42<\/p>\n
47<\/p>\n
(d) Interest Payment and Computation. Interest on each Base Rate
\nLoan shall be payable in arrears on the last Business Day of each calendar
\nquarter commencing on the first of such dates to occur after the Closing Date,
\nand interest on each Offshore Rate Loan and each Competitive Bid Loan shall be
\npayable on the last day of each Interest Period applicable thereto, and if such
\nInterest Period exceeds three (3) months, at the end of each three (3) month
\ninterval during such Interest Period. Interest on all Loans and all fees payable
\nhereunder shall be computed on the basis of a 360-day year (or, with respect to
\nOffshore Currency Loans, such alternative basis as the Administrative Agent
\nreasonably determines to be consistent with market practice) and assessed for
\nthe actual number of days elapsed.<\/p>\n
(e) Maximum Rate. In no contingency or event whatsoever shall the
\naggregate of all amounts deemed interest hereunder or under any of the Notes
\ncharged or collected pursuant to the terms of this Agreement or pursuant to any
\nof the Notes exceed the highest rate permissible under any Applicable Law which
\na court of competent jurisdiction shall, in a final determination, deem
\napplicable hereto. In the event that such a court determines that the Lenders
\nhave charged or received interest hereunder in excess of the highest applicable
\nrate, the rate in effect hereunder shall automatically be reduced to the maximum
\nrate permitted by Applicable Law and the Lenders shall at the Administrative
\nAgent’s option (i) promptly refund to the Borrowers any interest received by
\nLenders in excess of the maximum lawful rate or (ii) shall apply such excess to
\nthe principal balance of the Obligations. It is the intent hereof that the
\nBorrowers not pay or contract to pay, and that neither the Administrative Agent
\nnor any Lender receive or contract to receive, directly or indirectly in any
\nmanner whatsoever, interest in excess of that which may be paid by the Borrowers
\nunder Applicable Law.<\/p>\n
(f) Additional Interest on Loans.<\/p>\n
(i) Utilization Fee. In the case of all Loans, on each day that
\nthe aggregate principal amount of all outstanding Loans exceeds 50% of
\nthe Aggregate Revolving Credit Commitment, the otherwise applicable
\ninterest rate determined pursuant to Section 4.1(a) shall be increased
\nby the Utilization Fee.<\/p>\n
(ii) Mandatory Costs. In the case of a Revolving Credit Loan
\nthat is an Offshore Currency Loan, the otherwise applicable interest
\nrate determined pursuant to Section 4.1(a) shall be increased by (A)
\nthe MLA Cost associated with such Loan, computed in the manner set
\nforth in Schedule 4.1(f) attached hereto and\/or (B) any other
\napplicable regulatory or central banking requirement relating to any
\nLoan made through a branch in the jurisdiction of the currency of that
\nLoan.<\/p>\n
SECTION 4.2 CONVERSION AND CONTINUATION OF REVOLVING CREDIT
\nLOANS.<\/p>\n
Provided that no Event of Default has occurred and is then continuing,
\nand subject to the terms of this Agreement, any Borrower shall have the option
\n(a) to convert all or any portion of its outstanding Base Rate Loans in a
\nprincipal amount equal to $5,000,000 or any whole multiple of $1,000,000 in
\nexcess thereof into one or more Offshore Rate Loans denominated in Dollars or an
\nOffshore Currency and (b)(i) to convert all or any part of its outstanding
\nOffshore Rate Loans in a principal amount equal to $1,000,000 or a whole
\nmultiple of $500,000 in excess thereof into<\/p>\n
43<\/p>\n
48<\/p>\n
Base Rate Loans denominated in Dollars or (ii) to continue Offshore Rate Loans,
\nwhether denominated in Dollars or Offshore Currency Loans, as Offshore Rate
\nLoans in the same currency for an additional Interest Period; provided that if
\nany conversion or continuation is made prior to the expiration of any Interest
\nPeriod, such Borrower shall pay any amount required to be paid pursuant to
\nSection 4.9 hereof. Whenever a Borrower desires to convert or continue Revolving
\nCredit Loans or Swingline Loans as provided above, such Borrower shall give the
\nAdministrative Agent irrevocable prior written notice in the form attached as
\nExhibit F (a “Notice of Conversion\/Continuation”) not later than 11:00 a.m.
\n(Charlotte time) three (3) Business Days before the day on which a proposed
\nconversion or continuation of such Revolving Credit Loan or Swingline Loan is to
\nbe effective (except in the case of a conversion of an Offshore Rate Loan
\ndenominated in Dollars to a Base Rate Loan, in which case same day notice not
\nlater than 11:00 a.m. (Charlotte time) by the Borrower shall be sufficient)
\nspecifying (A) the Revolving Credit Loans or Swingline Loans to be converted or
\ncontinued, the facility under which such Loans were made and, in the case of any
\nOffshore Rate Loan to be converted or continued, the last day of the Interest
\nPeriod therefor, (B) the effective date of such conversion or continuation
\n(which shall be a Business Day), (C) the principal Dollar Equivalent amount of
\nsuch Revolving Credit Loans to be converted or continued, (D) the Interest
\nPeriod to be applicable to such converted or continued Offshore Rate Loan and
\n(E) in the case of any continued Offshore Rate Loan which is an Offshore
\nCurrency Loan, the Applicable Currency. The Administrative Agent shall promptly
\nnotify the Lenders of such Notice of Conversion\/Continuation.<\/p>\n
SECTION 4.3 FACILITY FEES.<\/p>\n
(a) 364 Day Facility. The Borrowers agree to pay to the
\nAdministrative Agent, for the account of the Lenders, a non-refundable facility
\nfee (the “364 Day Facility Fee”) at a rate per annum equal to the Applicable
\nPercentage for Facility Fee for the 364 Day Facility on the average daily amount
\nof the aggregate 364 Day Facility Commitment during the applicable period,
\nregardless of usage. The 364 Day Facility Fee shall apply to the period
\ncommencing on the Closing Date and ending on the termination of the 364 Day
\nFacility Commitment and shall be payable in arrears on the last Business Day of
\neach calendar quarter for the immediately preceding calendar quarter (or portion
\nthereof), beginning with the first such date to occur after the Closing Date.
\nSuch 364 Day Facility Fee shall be distributed by the Administrative Agent to
\nthe Lenders pro rata in accordance with the Lenders’ respective 364 Day Facility
\nCommitment Percentages.<\/p>\n
(b) Five Year Facility. The Borrowers agree to pay to the
\nAdministrative Agent, for the account of the Lenders, a non-refundable facility
\nfee (the “Five Year Facility Fee”) at a rate per annum equal to the Applicable
\nPercentage for Facility Fee for the Five Year Facility on the average daily
\namount of the aggregate Five Year Facility Commitment during the applicable
\nperiod, regardless of usage. The Five Year Facility Fee shall apply to the
\nperiod commencing on the Closing Date and ending on the termination of the Five
\nYear Facility Commitment and shall be payable in arrears on the last Business
\nDay of each calendar quarter for the immediately preceding calendar quarter (or
\nportion thereof), beginning with the first such date to occur after the Closing
\nDate. Such Five Year Facility Fee shall be distributed by the Administrative
\nAgent to the Lenders pro rata in accordance with the Lenders’ respective Five
\nYear Facility Commitment Percentages.<\/p>\n
44<\/p>\n
49<\/p>\n
SECTION 4.4 MANNER OF PAYMENT.<\/p>\n
Each payment by a Credit Party on account of the principal of or
\ninterest on the Loans or of any fee, commission or other amounts (including the
\nReimbursement Obligation) payable to the Lenders under this Agreement or any
\nNote shall be made on the date specified for payment under this Agreement to the
\nAdministrative Agent at the Administrative Agent’s Office for the account of the
\nLenders (other than as set forth below), in Dollars (other than as set forth
\nbelow), in immediately available funds and shall be made without any set-off,
\ncounterclaim or deduction whatsoever. Payment of principal of, interest on or
\nany other amount relating to any Offshore Currency Loan shall be made in the
\nOffshore Currency in which such Loan is denominated or payable. Such payments,
\nif denominated in Dollars, shall be made no later than 2:00 p.m. (Charlotte
\ntime) on the relevant date and, if denominated in an Offshore Currency, by such
\ntime as the Administrative Agent may determine to be necessary for such funds to
\nbe credited on such date in accordance with normal banking practices in the
\nplace of payment. Any payment denominated in Dollars received after 1:00 p.m.
\n(Charlotte time) but before 2:00 p.m. (Charlotte time) on a due date shall be
\ndeemed a payment on such date for the purposes of Section 11.1, but for all
\nother purposes shall be deemed to have been made on the next succeeding Business
\nDay. Any payment denominated in Dollars received after 2:00 p.m. (Charlotte
\ntime), or any payment denominated in an Offshore Currency received after the
\nrelevant time determined by the Administrative Agent, shall be deemed to have
\nbeen made on the next succeeding Business Day for all purposes. Each payment to
\nthe Administrative Agent of the L\/C Fees shall be made in like manner, but for
\nthe account of the Issuing Lenders and the L\/C Participants. Each payment to the
\nAdministrative Agent of Administrative Agent’s fees or expenses shall be made
\nfor the account of the Administrative Agent and any amount payable to any Lender
\nunder Section 2.5, 2.6, 4.8, 4.9, 4.10, 4.11 or 13.2 shall be paid to the
\nAdministrative Agent for the account of the applicable Lender. The
\nAdministrative Agent shall distribute any such payments received by it for the
\naccount of any other Lender to such Lender promptly following receipt thereof
\nand shall wire advice of the amount of such credit to such Lender. Subject to
\nSection 4.l(b)(ii), if any payment under this Agreement or any Note shall be
\nspecified to be made upon a day which is not a Business Day, it shall be made on
\nthe next succeeding day which is a Business Day and such extension of time shall
\nin such case be included in computing any interest if payable along with such
\npayment.<\/p>\n
SECTION 4.5 CREDITING OF PAYMENTS AND PROCEEDS.<\/p>\n
In the event that any Credit Party shall fail to pay any of the
\nObligations when due and the Obligations have been accelerated pursuant to
\nSection 11.2, all payments received by the Lenders upon the Notes and the other
\nObligations and all net proceeds from the enforcement of the Obligations shall
\nbe applied first to all expenses then due and payable by the Credit Parties
\nhereunder, then to all indemnity obligations then due and payable by the Credit
\nParties hereunder, then to all Administrative Agent’s fees then due and payable,
\nthen to all commitment and other fees and commissions then due and payable, then
\nto accrued and unpaid interest on the Notes, the Reimbursement Obligations and
\nany termination payments due in respect of a Hedging Agreement with any Lender
\nor Affiliate of a Lender (which Hedging Agreement is permitted hereunder) (pro
\nrata in accordance with all such amounts due), then to the principal<\/p>\n
45<\/p>\n
50<\/p>\n
amount of the Notes and Reimbursement Obligations (pro rata in accordance with
\nall such amounts due) and then to the cash collateral account described in
\nSection 11.2(b) hereof to the extent of any L\/C Obligations then outstanding, in
\nthat order.<\/p>\n
SECTION 4.6 ADJUSTMENTS.<\/p>\n
If any Lender (a “Benefited Lender”) shall at any time receive any
\npayment of all or part of the Obligations owing to it, or interest thereon, or
\nif any Lender shall at any time receive any collateral in respect to the
\nObligations owing to it (whether voluntarily or involuntarily, by set- off or
\notherwise) in a greater proportion than any such payment to and collateral
\nreceived by any other Lender, if any, in respect of the Obligations owing to
\nsuch other Lender, or interest thereon, such Benefited Lender shall purchase for
\ncash from the other Lenders such portion of each such other Lender’s Extensions
\nof Credit, or shall provide such other Lenders with the benefits of any such
\ncollateral, or the proceeds thereof, as shall be necessary to cause such
\nBenefited Lender to share the excess payment or benefits of such collateral or
\nproceeds ratably with each of the Lenders; provided, that if all or any portion
\nof such excess payment or benefits is thereafter recovered from such Benefited
\nLender, such purchase shall be rescinded, and the purchase price and benefits
\nreturned to the extent of such recovery, but without interest. Each Borrower
\nagrees that each Lender so purchasing a portion of another Lender’s Extensions
\nof Credit may exercise all rights of payment (including, without limitation,
\nrights of set-off) with respect to such portion as fully as if such Lender were
\nthe direct holder of such portion.<\/p>\n
SECTION 4.7 NATURE OF OBLIGATIONS OF LENDERS REGARDING EXTENSIONS
\nOF CREDIT; ASSUMPTION BY THE ADMINISTRATIVE AGENT.<\/p>\n
The obligations of the Lenders under this Agreement to make the Loans
\nand issue or participate in Letters of Credit are several and are not joint or
\njoint and several. Unless the Administrative Agent shall have received notice
\nfrom a Lender prior to a proposed borrowing date that such Lender will not make
\navailable to the Administrative Agent such Lender’s ratable portion of the
\nRevolving Credit Loans to be borrowed, the amount of Competitive Bid Loans to be
\nmade by such Lender or, if such Lender is the Swingline Lender, subject to
\nSection 2.6(a), the amount of Swingline Loans to be made, on such date (which
\nnotice shall not release such Lender of its obligations hereunder), the
\nAdministrative Agent may assume that such Lender has made such portion or amount
\navailable to the Administrative Agent on the proposed borrowing date in
\naccordance with Sections 2.2(b), 2.5(f) and 2.6(e), and the Administrative Agent
\nmay, in reliance upon such assumption, make available to the Borrower requesting
\nsuch borrowing on such date a corresponding amount. If such amount is made
\navailable to the Administrative Agent on a date after such borrowing date, such
\nLender shall pay to the Administrative Agent on demand an amount, until paid,
\nequal to the product of (a) the amount not made available by such Lender in
\naccordance with the terms hereof, times (b) the daily average Federal Funds Rate
\nduring such period as determined by the Administrative Agent, times (c) a
\nfraction the numerator of which is the number of days that elapse from and
\nincluding such borrowing date to the date on which such amount not made
\navailable by such Lender in accordance with the terms hereof shall have become
\nimmediately available to the Administrative Agent and the denominator of which
\nis 360. A certificate of the Administrative Agent with respect to any amounts
\nowing under this Section 4.7 shall be conclusive, absent manifest error. If such
\nLender’s Commitment Percentage of such<\/p>\n
46<\/p>\n
51<\/p>\n
Revolving Credit Loans, the amount of Competitive Bid Loans made by such Lender,
\nor, if such Lender is the Swingline Lender, the amount of such Swingline Loans,
\nis not made available to the Administrative Agent by such Lender within three
\n(3) Business Days of such borrowing date, the Administrative Agent shall be
\nentitled to recover such amount made available by the Administrative Agent with
\ninterest thereon at the rate per annum applicable to such borrowing, on demand,
\nfrom the Borrower which received such borrowing. The failure of any Lender to
\nmake available its Commitment Percentage of any Revolving Credit Loan, the
\namount of a Competitive Bid Loan or the amount of a Swingline Loan requested by
\nany Borrower shall not relieve it or any other Lender of its obligation
\nhereunder to make its Commitment Percentage of such Revolving Credit Loan, the
\namount of the Competitive Bid Loan or the amount of the Swingline Loan,
\nrespectively, available on the borrowing date, but no Lender shall be
\nresponsible for the failure of any other Lender to make its Commitment
\nPercentage of such Revolving Credit Loan, the amount of such Competitive Bid
\nLoan or the amount of such Swingline Loan, available on the borrowing date.<\/p>\n
SECTION 4.8 CHANGED CIRCUMSTANCES.<\/p>\n
(a) Circumstances Affecting Offshore Rate Availability. If with
\nrespect to any Interest Period: (i) the Administrative Agent or any Lender
\n(after consultation with the Administrative Agent) shall determine that for any
\nreason adequate and reasonable means do not exist for determining the Offshore
\nRate for any requested Interest Period with respect to a proposed Offshore Rate
\nLoan or (ii) the Required Lenders reasonably determine (which determination
\nshall be conclusive) and notify the Administrative Agent that the LIBOR Rate
\nwill not adequately and fairly reflect the cost to the Required Lenders of
\nfunding Offshore Rate Loans for such Interest Period, then the Administrative
\nAgent shall forthwith give notice thereof to the Borrowers. Thereafter, until
\nthe Administrative Agent notifies the Borrowers that such circumstances no
\nlonger exist, the obligation of the Lenders to make Offshore Rate Loans and the
\nright of the Borrowers to convert any Revolving Credit Loan to or continue any
\nRevolving Credit Loan as an Offshore Rate Loan shall be suspended, and the
\nBorrowers shall repay in full (or cause to be repaid in full) the then
\noutstanding principal amount of each such Offshore Rate Loan together with
\naccrued interest thereon, on the last day of the then current Interest Period
\napplicable to such Offshore Rate Loan or convert the then outstanding principal
\namount of each such Offshore Rate Loan to a Base Rate Loan as of the last day of
\nsuch Interest Period (Offshore Currency Loans which are not repaid shall be
\nredenominated and converted into their Dollar Equivalent of Base Rate Loans in
\nDollars).<\/p>\n
(b) Laws Affecting Offshore Rate Availability. If, after the date
\nhereof, the introduction of, or any change in, any Applicable Law or any change
\nin the interpretation or administration thereof by any Governmental Authority,
\ncentral bank or comparable agency charged with the interpretation or
\nadministration thereof, or compliance by any Lender (or any of their respective
\nLending Offices) with any request or directive (whether or not having the force
\nof law) issued after the date hereof of any such Governmental Authority, central
\nbank or comparable agency, shall make it unlawful or impossible for any of the
\nLenders (or any of their respective Lending Offices) to honor its obligations
\nhereunder to make or maintain any Offshore Rate Loan, such Lender shall promptly
\ngive notice thereof to the Administrative Agent and the Administrative Agent
\nshall promptly give notice to the Borrowers and the other Lenders.<\/p>\n
47<\/p>\n
52<\/p>\n
Thereafter, until the Administrative Agent notifies the Borrowers that such
\ncircumstances no longer exist, (i) the obligations of the affected Lenders to
\nmake Offshore Rate Loans and the right of the Borrowers to convert any Revolving
\nCredit Loan of the affected Lenders or continue any Revolving Credit Loan of the
\naffected Lenders as an Offshore Rate Loan shall be suspended and thereafter the
\nBorrowers may select only Base Rate Loans hereunder, (ii) if any of the Lenders
\nmay not lawfully continue to maintain an Offshore Rate Loan to the end of the
\nthen current Interest Period applicable thereto as an Offshore Rate Loan, the
\napplicable Offshore Rate Loan of the affected Lenders shall immediately be
\nconverted to a Base Rate Loan for the remainder of such Interest Period
\n(Offshore Currency Loans shall be redenominated and converted into their Dollar
\nEquivalent of Base Rate Loans in Dollars) and the Borrowers shall pay any amount
\nrequired to be paid pursuant to Section 4.9 in connection therewith and (iii) if
\nany of the Lenders may not lawfully continue to maintain a Competitive Bid Loan
\nwhich bears interest at a rate based on the Offshore Rate to the end of the then
\ncurrent Interest Period applicable thereto at such rate of interest, such
\nCompetitive Bid Loan of the affected Lender shall immediately be converted to a
\nBase Rate Loan for the remainder of such Interest Period. The Borrowers shall
\nrepay the outstanding principal amount of any Competitive Bid Loans converted
\ninto Base Rate Loans in accordance with clause (iii) of this Section 4.8(b),
\ntogether with all accrued but unpaid interest thereon and any amount required to
\nbe paid pursuant to Section 4.9 hereof, on the last day of the Interest Period
\napplicable to such Competitive Bid Loans.<\/p>\n
(c) Increased Costs. If, after the date hereof, the introduction
\nof, or any change in, any Applicable Law, or in the interpretation or
\nadministration thereof by any Governmental Authority, central bank or comparable
\nagency charged with the interpretation or administration thereof, or compliance
\nby any of the Lenders (or any of their respective Lending Offices) with any
\nrequest or directive (whether or not having the force of law) issued after the
\ndate hereof of such Authority, central bank or comparable agency:<\/p>\n
(i) shall subject any of the Lenders (or any of their respective
\nLending Offices) to any tax, duty or other charge with respect to any
\nNote, Letter of Credit or L\/C Application or shall change the basis of
\ntaxation of payments to any of the Lenders (or any of their respective
\nLending Offices) of the principal of or interest on any Note, Letter of
\nCredit or L\/C Application or any other amounts due under this Agreement
\nin respect thereof (except for changes in the rate of tax on the
\noverall net income of any of the Lenders or any of their respective
\nLending Offices imposed by the jurisdiction in which such Lender is
\norganized or is or should be qualified to do business or such Lending
\nOffice is located); or<\/p>\n
(ii) shall impose, modify or deem applicable any reserve
\n(including, without limitation, any imposed by the Board of Governors
\nof the Federal Reserve System, other than those used to calculate the
\nLIBOR Rate), special deposit, insurance or capital or similar
\nrequirement against assets of, deposits with or for the account of, or
\ncredit extended by any of the Lenders (or any of their respective
\nLending Offices) or shall impose on any of the Lenders (or any of their
\nrespective Lending Offices) or the foreign exchange and interbank
\nmarkets any other condition affecting any Note;<\/p>\n
48<\/p>\n
53<\/p>\n
and the result of any event of the kind described in the foregoing
\nclause (i) or this clause (ii), is to increase the costs to any of the
\nLenders of maintaining any Offshore Rate Loan, Competitive Bid Loan or
\nissuing or participating in Letters of Credit or to reduce the yield or
\namount of any sum received or receivable by any of the Lenders under
\nthis Agreement or under the Notes or any Letter of Credit or L\/C
\nApplication, then such Lender may promptly notify the Administrative
\nAgent, and the Administrative Agent shall promptly notify the
\nrespective Borrower of such fact and demand compensation therefor and,
\nwithin fifteen (15) days after such notice by the Administrative Agent,
\nsuch Borrower shall pay to such Lender such additional amount or
\namounts as will compensate such Lender or Lenders for such increased
\ncost or reduction. The Administrative Agent and the applicable Lender
\nwill promptly notify the respective Borrower of any event of which it
\nhas knowledge which will entitle such Lender to compensation pursuant
\nto this Section 4.8(c); provided that the Administrative Agent shall
\nincur no liability whatsoever to the Lenders or the Borrowers in the
\nevent it fails to do so. The amount of such compensation shall be
\ndetermined, in the applicable Lender’s reasonable discretion, based
\nupon the assumption that such Lender funded its Aggregate Revolving
\nCredit Commitment Percentage of the Offshore Rate Loans, or the amount
\nof any Competitive Bid Loans made by such Lender, in the London
\ninterbank market and using any reasonable attribution or averaging
\nmethods which such Lender deems appropriate and practical; provided
\nthat no compensation shall be payable pursuant to the above if the
\napplicable Lender fails to demand compensation for such increased costs
\nwithin one-hundred eighty (180) days following the date on which such
\nLender has actual knowledge of the event resulting in such increase. A
\ncertificate of such Lender setting forth in reasonable detail the basis
\nfor determining such amount or amounts necessary to compensate such
\nLender shall be forwarded to the respective Borrower through the
\nAdministrative Agent and shall be conclusively presumed to be correct
\nsave for manifest error.<\/p>\n
(d) Mitigation Obligations; Replacement of Lenders.<\/p>\n
(i) Each Lender represents that, as of the Closing Date, it has
\nno knowledge of the likely occurrence of any event which will entitle
\nsuch Lender to compensation pursuant to this Section 4.8. If any Lender
\nrequests compensation under this Section 4.8, or if the Borrowers are
\nrequired to pay any additional amount to any Lender or any Governmental
\nAuthority for the account of any Lender pursuant to Sections 4.10 or
\n4.11, then such Lender shall use reasonable efforts to designate a
\ndifferent lending office for funding or booking its Loans hereunder or
\nto assign its rights and obligations hereunder to another of its
\noffices, branches or affiliates, if, in the judgment of such Lender,
\nsuch designation or assignment (A) would eliminate or reduce amounts
\npayable pursuant to this Section 4.8 or Sections 4.10 or 4.11, as the
\ncase may be, in the future and (B) would not subject such Lender to any
\nunreimbursed cost or expense and would not otherwise be disadvantageous
\nto such Lender. The Borrowers agree to pay all reasonable costs and
\nexpenses incurred by any Lender in connection with any such designation
\nor assignment.<\/p>\n
(ii) If any Lender requests compensation under this Section 4.8,
\nor if the Borrowers are required to pay any additional amount to any
\nLender or any Governmental<\/p>\n
49<\/p>\n
54<\/p>\n
Authority for the account of any Lender pursuant to Sections 4.10 or
\n4.11, or if any Lender defaults in its obligation to fund Loans
\nhereunder, then the Borrowers may, at their sole expense and effort,
\nupon notice to such Lender and the Administrative Agent, require such
\nLender to assign and delegate, without recourse (in accordance with and
\nsubject to the restrictions contained in Section 13.10), all its
\ninterests, rights and obligations under this Agreement to an Eligible
\nAssignee that shall assume such obligations (which assignee may be
\nanother Lender, if a Lender accepts such assignment); provided that (A)
\nthe Borrowers shall have received the prior written consent of the
\nAdministrative Agent (and, if an L\/C Commitment is being assigned, the
\nIssuing Lender), which consent shall not unreasonably be withheld, (B)
\nsuch Lender shall have received payment of an amount equal to the
\noutstanding principal of its Loans and participations in Letters of
\nCredit, accrued interest thereon, accrued fees and all other amounts
\npayable to it hereunder, from the assignee (to the extent of such
\noutstanding principal and accrued interest and fees) or the Borrowers
\n(in the case of all other amounts) and (C) in the case of any such
\nassignment resulting from a claim for compensation under this Section
\n4.8, such assignment will result in a material reduction in such
\ncompensation or payments. A Lender shall not be required to make any
\nsuch assignment and delegation if, prior thereto, as a result of a
\nwaiver by such Lender or otherwise, the circumstances entitling the
\nBorrowers to require such assignment and delegation cease to apply. If
\na Lender defaults, the Borrowers do not waive any of their rights
\nagainst such Lender if a Borrower causes the defaulting Lender to
\nassign its position.<\/p>\n
SECTION 4.9 INDEMNITY.<\/p>\n
Each Borrower hereby indemnifies each of the Lenders against any loss
\nor expense which may arise or be attributable to each Lender’s obtaining,
\nliquidating or employing deposits or other funds acquired to effect, fund or
\nmaintain any Loan (a) as a consequence of any failure by such Borrower to make
\nany payment when due of any amount due hereunder in connection with an Offshore
\nRate Loan, (b) due to any failure of such Borrower to borrow on a date specified
\ntherefor in a Notice of Revolving Credit Borrowing, Notice of Swingline
\nBorrowing, Competitive Bid Request or Notice of Continuation\/Conversion or (c)
\ndue to any payment, prepayment or conversion of any Offshore Rate Loan on a date
\nother than the last day of the Interest Period therefor. The amount of such loss
\nor expense shall be determined, in the applicable Lender’s reasonable
\ndiscretion, based upon the assumption that such Lender funded its Commitment
\nPercentage of the Offshore Rate Loans in the London interbank market and using
\nany reasonable attribution or averaging methods which such Lender deems
\nappropriate and practical; provided that no compensation shall be payable
\npursuant to the above if the applicable Lender fails to demand compensation for
\nsuch increased costs within one-hundred eighty (180) days following the date on
\nwhich such Lender has actual knowledge of the event resulting in such increase.
\nA certificate of such Lender setting forth in reasonable detail the basis for
\ndetermining such amount or amounts necessary to compensate such Lender shall be
\nforwarded to the respective Borrower through the Administrative Agent and shall
\nbe conclusively presumed to be correct save for manifest error.<\/p>\n
50<\/p>\n
55<\/p>\n
SECTION 4.10 CAPITAL REQUIREMENTS.<\/p>\n
If either (a) the introduction of, or any change in, or in the
\ninterpretation of, any Applicable Law or (b) compliance with any guideline or
\nrequest issued after the date hereof from any central bank or comparable agency
\nor other Governmental Authority (whether or not having the force of law), has or
\nwould have the effect of reducing the rate of return on the capital of, or has
\naffected or would affect the amount of capital required to be maintained by, any
\nLender or any corporation controlling such Lender as a consequence of, or with
\nreference to any Lender’s 364 Day Facility Commitment or Five Year Facility
\nCommitment or with reference to the Swingline Lender’s Swingline Commitment and
\nother commitments of this type, below the rate which the Lender or such other
\ncorporation could have achieved but for such introduction, change or compliance,
\nthen within five (5) Business Days after written demand by any such Lender, the
\nBorrowers shall pay to such Lender from time to time as specified by such Lender
\nadditional amounts sufficient to compensate such Lender or other corporation for
\nsuch reduction; provided that no compensation shall be payable pursuant to the
\nabove if the applicable Lender fails to demand compensation for such increased
\ncosts within one-hundred eighty (180) days following the date on which such
\nLender has actual knowledge of the event resulting in such increase. A
\ncertificate of such Lender setting forth in reasonable detail the basis for
\ndetermining such amounts necessary to compensate such Lender shall be forwarded
\nto the Borrowers through the Administrative Agent and shall be conclusively
\npresumed to be correct save for manifest error. Each Lender represents that, as
\nof the Closing Date, it has no knowledge of the likely occurrence of any event
\nwhich will entitle such Lender to compensation pursuant to this Section 4.10.<\/p>\n
SECTION 4.11 TAXES.<\/p>\n
(a) Payments Free and Clear. Any and all payments by any Borrower
\nhereunder or under the Notes or the Letters of Credit shall be made free and
\nclear of and without deduction for any and all present or future taxes, levies,
\nimposts, deductions, charges or withholding, and all liabilities with respect
\nthereto excluding, (i) in the case of each Lender and the Administrative Agent,
\nincome and franchise taxes imposed on (or measured by) its net income by the
\nUnited States of America or by the jurisdiction under the laws of which such
\nLender or the Administrative Agent (as the case may be) is organized or its
\nprincipal office is located or is or should be qualified to do business or any
\npolitical subdivision thereof, or in the case of any Lender, in which its
\napplicable Lending Office is located (provided, however, that no Lender shall be
\ndeemed to be located in any jurisdiction solely as a result of taking any action
\nrelated to this Agreement, the Notes or Letters of Credit) and (ii) any branch
\nprofits tax imposed by the United States of America or any similar tax imposed
\nby any other jurisdiction described in clause (i) above (all such non-excluded
\ntaxes, levies, imposts, deductions, charges, withholdings and liabilities being
\nhereinafter referred to as “Taxes”). If any Borrower shall be required by law to
\ndeduct any Taxes from or in respect of any sum payable hereunder or under any
\nNote or Letter of Credit to any Lender or the Administrative Agent, (A) the sum
\npayable shall be increased as may be necessary so that after making all required
\ndeductions (including deductions applicable to additional sums payable under
\nthis Section 4.11) such Lender or the Administrative Agent (as the case may be)
\nreceives an amount equal to the amount such party would have received had no
\nsuch deductions been made, (B) such Borrower shall make such deductions, (C)
\nsuch Borrower<\/p>\n
51<\/p>\n
56<\/p>\n
shall pay the full amount deducted to the relevant taxing authority or other
\nauthority in accordance with applicable law, and (D) such Borrower shall deliver
\nto the Administrative Agent evidence of such payment to the relevant taxing
\nauthority or other authority in the manner provided in Section 4.11(d). No
\nBorrower shall, however, be required to pay any amounts pursuant to clause (A)
\nof the preceding sentence to any Foreign Lender or the Administrative Agent not
\norganized under the laws of the United States of America or a state thereof (or
\nthe District of Columbia) if such Foreign Lender or the Administrative Agent
\nfails to comply with the requirements of paragraph (e) of this Section 4.11 or
\nSection 4.8(d), as the case may be.<\/p>\n
(b) Stamp and Other Taxes. In addition, the Borrowers shall pay
\nany present or future stamp, registration, recordation or documentary taxes or
\nany other similar fees or charges or excise or property taxes, levies of the
\nUnited States or any state or political subdivision thereof or any applicable
\nforeign jurisdiction which arise from any payment made hereunder or from the
\nexecution, delivery or registration of, or otherwise with respect to, this
\nAgreement, the Loans, the Letters of Credit, the other Loan Documents, or the
\nperfection of any rights or security interest in respect thereto (hereinafter
\nreferred to as “Other Taxes”).<\/p>\n
(c) Indemnity. Each Borrower shall indemnify each Lender and the
\nAdministrative Agent for the full amount of Taxes and Other Taxes (including,
\nwithout limitation, any Taxes and Other Taxes imposed by any jurisdiction on
\namounts payable under this Section 4.11) paid by such Lender or the
\nAdministrative Agent (as the case may be) and any liability (including
\npenalties, interest and expenses) arising therefrom or with respect thereto,
\nwhether or not such Taxes or Other Taxes were correctly or legally asserted. A
\ncertificate as to the amount of such payment or liability prepared by a Lender
\nor the Administrative Agent, absent manifest error, shall be conclusive,
\nprovided that if the Borrowers reasonably believe that such Taxes or Other Taxes
\nwere not correctly or legally asserted, such Lender or the Administrative Agent
\n(as the case may be) shall use reasonable efforts to cooperate with the
\nBorrowers, at the Borrowers’ expense, to obtain a refund of such Taxes or Other
\nTaxes. Such indemnification shall be made within thirty (30) days from the date
\nsuch Lender or the Administrative Agent (as the case may be) makes written
\ndemand therefor. If a Lender or the Administrative Agent shall become aware that
\nit is entitled to receive a refund in respect of Taxes or Other Taxes, it
\npromptly shall notify the respective Borrower of the availability of such refund
\nand shall, within sixty (60) days after receipt of a request by such Borrower
\npursue or timely claim such refund at such Borrower’s expense. If any Lender or
\nthe Administrative Agent receives a refund in respect of any Taxes or Other
\nTaxes for which such Lender or the Administrative Agent has received payment
\nfrom any Borrower hereunder, it promptly shall repay such refund (plus interest
\nreceived, if any) to such Borrower (but only to the extent of indemnity payments
\nmade, or additional amounts paid, by such Borrower under this Section 4.11 with
\nrespect to Taxes or Other Taxes giving rise to such refund), provided that such
\nBorrower, upon the request of such Lender or the Administrative Agent, agrees to
\nreturn such refund (plus any penalties, interest or other charges required to be
\npaid) to such Lender or the Administrative Agent in the event such Lender or the
\nAdministrative Agent is required to repay such refund to the relevant taxing
\nauthority.<\/p>\n
(d) Evidence of Payment. Within thirty (30) days after the date of
\nany payment of Taxes or Other Taxes, the respective Borrower shall furnish to
\nthe Administrative Agent, at its<\/p>\n
52<\/p>\n
57<\/p>\n
address referred to in Section 13.1, the original or a certified copy of a
\nreceipt evidencing payment thereof or other evidence of payment satisfactory to
\nthe Administrative Agent.<\/p>\n
(e) Delivery of Tax Forms. Each Foreign Lender shall deliver to
\nthe Borrowers, with a copy to the Administrative Agent, on the Closing Date or
\nconcurrently with the delivery of the relevant Assignment and Acceptance, as
\napplicable, (i) two United States Internal Revenue Service Forms 4224 or Forms
\n1001, as applicable (or successor forms) properly completed and certifying in
\neach case that such Foreign Lender is entitled to a complete exemption from
\nwithholding or deduction for or on account of any United States federal income
\ntaxes, and (ii) an Internal Revenue Service Form W-8 or W-9 or successor
\napplicable form, as the case may be, to establish an exemption from United
\nStates backup withholding taxes. Each Foreign Lender further agrees to deliver
\nto the Borrowers, with a copy to the Administrative Agent, a Form 1001 or 4224
\nand Form W-8 or W-9, or successor applicable forms or manner of certification,
\nas the case may be, on or before the date that any such form expires or becomes
\nobsolete or after the occurrence of any event requiring a change in the most
\nrecent form previously delivered by it to the Borrowers, certifying in the case
\nof a Form 1001 or 4224 that such Foreign Lender is entitled to receive payments
\nunder this Agreement without deduction or withholding of any United States
\nfederal income taxes (unless in any such case an event (including without
\nlimitation any change in treaty, law or regulation) has occurred prior to the
\ndate on which any such delivery would otherwise be required which renders such
\nforms inapplicable or the exemption to which such forms relate unavailable and
\nsuch Foreign Lender notifies the Borrowers and the Administrative Agent that it
\nis not entitled to receive payments without deduction or withholding of United
\nStates federal income taxes) and, in the case of a Form W-8 or W-9, establishing
\nan exemption from United States backup withholding tax.<\/p>\n
(f) Survival. Without prejudice to the survival of any other
\nagreement of the Borrower hereunder, the agreements and obligations of the
\nBorrowers contained in this Section 4.11 shall survive the payment in full of
\nthe Obligations and the termination of the 364 Day Facility Commitment and the
\nFive Year Facility Commitment, but shall be limited in duration to the
\napplicable statute of limitations for Taxes or Other Taxes for which
\nindemnification is sought.<\/p>\n
ARTICLE V<\/p>\n
CLOSING; CONDITIONS OF CLOSING AND BORROWING<\/p>\n
SECTION 5.1 CLOSING.<\/p>\n
The parties hereto shall execute and deliver this Agreement (the
\n“Closing”) as of 9:00 a.m. (Charlotte time) on April 16, 1999 or on such other
\ndate and at such other time as the parties hereto shall mutually agree (the
\n“Closing Date”).<\/p>\n
53<\/p>\n
58<\/p>\n
SECTION 5.2 CONDITIONS TO CLOSING.<\/p>\n
The obligations of the Lenders to close this Agreement are subject to
\nthe satisfaction or waiver of each of the following conditions:<\/p>\n
(a) Executed Loan Documents. This Agreement, the Revolving Credit
\nNotes and all other applicable Loan Documents shall have been duly authorized,
\nexecuted and delivered to the Administrative Agent by the parties thereto, shall
\nbe in full force and effect and no default (including without limitation a
\nDefault) shall exist thereunder, and the Credit Parties shall have delivered
\noriginal counterparts thereof to the Administrative Agent.<\/p>\n
(b) Closing Certificates; etc.<\/p>\n
(i) Officers’ Certificates. The Administrative Agent shall have
\nreceived a certificate from a Responsible Officer on behalf of each
\nCredit Party, in form and substance reasonably satisfactory to the
\nAdministrative Agent, to the effect that all representations and
\nwarranties of such Credit Party contained in this Agreement and the
\nother Loan Documents are true, correct and complete in all material
\nrespects; that such Credit Party is not in violation of any of the
\ncovenants contained in this Agreement and the other Loan Documents;
\nthat, after giving effect to the transactions contemplated by this
\nAgreement, no Default or Event of Default has occurred and is
\ncontinuing; and that each of the closing conditions has been satisfied
\nor waived (assuming satisfaction of the Administrative Agent where not
\nadvised otherwise).<\/p>\n
(ii) General Certificates. The Administrative Agent shall have
\nreceived a certificate of the secretary, assistant secretary or general
\ncounsel of each Credit Party certifying as to the incumbency and
\ngenuineness of the signature of each officer of such Credit Party
\nexecuting Loan Documents to which it is a party and certifying that
\nattached thereto is a true, correct and complete copy of (A) the
\narticles of incorporation of such Credit Party and all amendments
\nthereto, certified as of a recent date by the appropriate Governmental
\nAuthority in its jurisdiction of incorporation, (B) the bylaws of such
\nCredit Party as in effect on the date of such certifications, (C)
\nresolutions duly adopted by the Board of Directors of such Credit Party
\nauthorizing, as applicable, the borrowings contemplated hereunder and
\nthe execution, delivery and performance of this Agreement and the other
\nLoan Documents to which it is a party, and (D) each certificate
\nrequired to be delivered pursuant to Section 5.2(b)(iii).<\/p>\n
(iii) Certificates of Good Standing. The Administrative Agent
\nshall have received long-form certificates as of a recent date of the
\ngood standing of the Credit Parties and their Material Subsidiaries
\nunder the laws of their respective jurisdictions of organization and
\nshort-form certificates as of a recent date of the good standing of
\neach Borrower under the laws of each other jurisdiction where such
\nBorrower is qualified to do business and where a failure to be so
\nqualified could reasonably be expected to have a Material Adverse
\nEffect.<\/p>\n
54<\/p>\n
59<\/p>\n
(iv) Opinions of Counsel. The Administrative Agent shall have
\nreceived opinions in form and substance reasonably satisfactory to the
\nAdministrative Agent of counsel to the Company and each of the
\nDesignated Borrowers, addressed to the Administrative Agent and the
\nLenders with respect to the Credit Parties, the Loan Documents and such
\nother matters as the Administrative Agent shall reasonably request.<\/p>\n
(c) Consents; Defaults.<\/p>\n
(i) Governmental and Third Party Approvals. The Borrowers shall
\nhave obtained all approvals, authorizations and consents of any Person
\nand of all Governmental Authorities and courts having jurisdiction
\nnecessary in order to enter into this Agreement and the other Loan
\nDocuments as of the Closing Date. Additionally, there shall not exist
\nany judgment, order, injunction or other restraint issued or filed or a
\nhearing seeking injunctive relief or other restraint pending or
\nnotified prohibiting or imposing materially adverse conditions upon the
\ntransactions contemplated by this Agreement and the other Loan
\nDocuments or otherwise referred to herein or therein.<\/p>\n
(ii) No Event of Default. No Default or Event of Default shall
\nhave occurred and be continuing.<\/p>\n
(d) No Material Adverse Effect. Since May 30, 1998 nothing shall
\nhave occurred (and neither the Administrative Agent nor the Lenders shall have
\nbecome aware of any facts or conditions not previously known) which has had, or
\ncould reasonably be expected to have, a Material Adverse Effect.<\/p>\n
(e) Financial Matters.<\/p>\n
(i) Financial Statements. The Administrative Agent shall have
\nreceived the audited Consolidated financial statements of the Company
\nand its Subsidiaries for the fiscal year ended as of May 30, 1998 and
\nthe unaudited Consolidated financial statements of the Company and its
\nSubsidiaries for the fiscal quarter ended as of November 28, 1998. Such
\nfinancial statements shall be in form and substance reasonably
\nsatisfactory to the Administrative Agent.<\/p>\n
(ii) Payment at Closing. The Borrowers shall have paid any
\naccrued and unpaid fees or commissions due hereunder (including,
\nwithout limitation, reasonable legal fees and expenses) to the
\nAdministrative Agent and Lenders, and to any other Person such amount
\nas may be due thereto in connection with the transactions contemplated
\nhereby, including all taxes, fees and other charges in connection with
\nthe execution, delivery, recording, filing and registration of any of
\nthe Loan Documents.<\/p>\n
(f) Litigation. Except as set forth in the Current SEC Reports, as
\nof the Closing Date, there shall be no actions, suits or proceedings pending or,
\nto the best knowledge of any Borrower, threatened (i) with respect to this
\nAgreement or any other Loan Document or (ii) which the Administrative Agent or
\nthe Required Lenders shall reasonably determine could reasonably be expected to
\nhave a Material Adverse Effect.<\/p>\n
55<\/p>\n
60<\/p>\n
(g) Termination of Prior Bank Commitments. All Prior Bank
\nCommitments shall have been (or will be upon the initial borrowing hereunder and
\nthe application of the proceeds thereof) (i) paid in full, (ii) the commitments,
\nother obligations and rights of the Company and the lenders thereunder
\nterminated and (iii) either (A) all outstanding promissory notes issued by the
\nCompany with respect thereto canceled and the originally executed copies thereof
\nreturned to the Administrative Agent (who shall promptly forward such notes to
\nthe Company) or (B) the Administrative Agent otherwise shall have received
\nevidence satisfactory to it that such Prior Bank Commitments have been
\nterminated; provided that arrangements may be made so that any outstanding
\nletter of credit issued under such committed facilities may remain outstanding
\nas necessary.<\/p>\n
(h) Miscellaneous.<\/p>\n
(i) Proceedings and Documents. All Loan Documents, opinions,
\ncertificates and other instruments and all proceedings in connection
\nwith the transactions contemplated by this Agreement shall be
\nreasonably satisfactory in form and substance to the Administrative
\nAgent.<\/p>\n
(ii) Year 2000. The Administrative Agent shall have received and
\nreviewed information in form and substance reasonably satisfactory to
\nit confirming that (A) the Company and its Subsidiaries are taking all
\nnecessary and appropriate steps to ascertain the extent of, and to
\nquantify and successfully address, business and financial risks facing
\nthe Company and its Subsidiaries as a result of what is commonly
\nreferred to as the “Year 2000 Problem” (i.e., the inability of certain
\ncomputer applications to recognize and perform date sensitive functions
\ninvolving certain dates prior to and after December 31, 1999),
\nincluding risks resulting from the failure of key vendors and customers
\nof the Borrower and its Subsidiaries to successfully address the Year
\n2000 Problem, and (B) the Company’s and its Subsidiaries’ material
\ncomputer applications and those of its key vendors and customers will,
\non a timely basis, adequately address the Year 2000 Problem in each
\ncase sufficient to avoid a Material Adverse Effect.<\/p>\n
(iii) Accuracy and Completeness of Information. All information
\ntaken as an entirety made available to the Administrative Agent or the
\nLenders by the Credit Parties or any of their representatives in
\nconnection with the transactions contemplated hereby (“Information”) is
\nand will be complete and correct in all material respects as of the
\ndate made available to the Administrative Agent and does not and will
\nnot contain any untrue statement of a material fact or omit to state a
\nmaterial fact necessary to make the statements contained therein not
\nmisleading.<\/p>\n
SECTION 5.3 CONDITIONS TO ALL EXTENSIONS OF CREDIT.<\/p>\n
The obligation of each Lender to make any Extension of Credit hereunder
\n(including the initial Extension of Credit to be made hereunder) is subject to
\nthe satisfaction of the following conditions precedent on the relevant borrowing
\nor issue date, as applicable:<\/p>\n
56<\/p>\n
61<\/p>\n
(a) Continuation of Representations and Warranties. The
\nrepresentations and warranties contained in Article VI shall be true and correct
\nin all material respects on and as of such borrowing or issuance date with the
\nsame effect as if made on and as of such date, except for any representation and
\nwarranty made as of an earlier date, which representation and warranty shall
\nremain true and correct in all material respects as of such earlier date.<\/p>\n
(b) No Existing Default. No Default or Event of Default shall have
\noccurred and be continuing hereunder (i) on the borrowing date with respect to
\nsuch Loan or after giving effect to the Loans to be made on such date or (ii) on
\nthe issue date with respect to such Letter of Credit or after giving effect to
\nsuch Letters of Credit on such date.<\/p>\n
(c) Notice of Revolving Credit Borrowing. The Administrative Agent
\nshall have received a Notice of Revolving Credit Borrowing from the relevant
\nBorrower in accordance with Section 2.2(a) or a Competitive Bid Request in
\naccordance with Section 2.5(a) and a Notice of Account Designation specifying
\nthe account or accounts to which the proceeds of any Loans made after the
\nClosing Date are to be disbursed.<\/p>\n
The occurrence of the Closing Date and the acceptance by any Borrower
\nof the benefits of each Extension of Credit hereunder shall constitute a
\nrepresentation and warranty by such Borrower to the Administrative Agent and
\neach of the Lenders that all the conditions specified in Sections 5.2 and 5.3
\nand applicable to such borrowing have been satisfied as of that time. All of the
\nNotes, certificates, legal opinions and other documents and papers referred to
\nin Sections 5.2 and 5.3, unless otherwise specified, shall be delivered to the
\nAdministrative Agent for the account of each of the Lenders and, except for the
\nNotes, in sufficient counterparts or copies for each of the Lenders and shall be
\nin form and substance reasonably satisfactory to the Administrative Agent.<\/p>\n
ARTICLE VI<\/p>\n
REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES<\/p>\n
SECTION 6.1 REPRESENTATIONS AND WARRANTIES.<\/p>\n
To induce the Administrative Agent and Lenders to enter into this
\nAgreement and to induce the Lenders to make Extensions of Credit, each Credit
\nParty hereby represents and warrants to the Administrative Agent and Lenders
\nthat:<\/p>\n
(a) Organization; Power; Qualification. Each of the Credit Parties
\nand their Material Subsidiaries is duly organized, validly existing and in good
\nstanding under the laws of the jurisdiction of its incorporation or formation,
\nhas the power and authority to own its properties and to carry on its business
\nas now being and hereafter proposed to be conducted and is duly qualified and
\nauthorized to do business in each jurisdiction in which the character of its
\nproperties or the nature of its business requires such qualification and
\nauthorization, except where the failure to do so could not reasonably be
\nexpected to have a Material Adverse Effect.<\/p>\n
57<\/p>\n
62<\/p>\n
(b) Ownership. Each Subsidiary of each of the Credit Parties as of
\nthe Closing Date is listed on Schedule 6.l(b). As of the Closing Date, all
\noutstanding shares of each such Subsidiary have been duly authorized and validly
\nissued and are fully paid and nonassessable. As of the Closing Date, there are
\nno outstanding stock purchase warrants, subscriptions, options, securities,
\ninstruments or other rights of any type or nature whatsoever, which are
\nconvertible into, exchangeable for or otherwise provide for or permit the
\nissuance of capital stock of the Credit Parties or their Subsidiaries, except as
\ndescribed on Schedule 6.1(b).<\/p>\n
(c) Authorization of Agreement, Loan Documents and Borrowing. Each
\nof the Credit Parties and, if applicable, their Subsidiaries has the right,
\npower and authority and has taken all necessary corporate and other action to
\nauthorize the execution, delivery and performance of each of the Loan Documents
\nto which it is a party in accordance with its respective terms. Each of the Loan
\nDocuments has been duly executed and delivered by the duly authorized officers
\nof the Credit Parties and each of their Subsidiaries party thereto, as
\napplicable, and each such document constitutes the legal, valid and binding
\nobligation of the Credit Parties and, if applicable, each of their Subsidiaries
\nparty thereto, enforceable in accordance with its terms, except as such
\nenforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
\nor similar state or federal debtor relief laws from time to time in effect which
\naffect the enforcement of creditors’ rights in general and the availability of
\nequitable remedies.<\/p>\n
(d) Compliance of Agreement, Loan Documents and Borrowing with
\nLaws, Etc. The execution, delivery and performance by the Credit Parties and
\ntheir Subsidiaries of the Loan Documents to which each such Person is a party,
\nin accordance with their respective terms, the borrowings hereunder and the
\ntransactions contemplated hereby do not and will not, by the passage of time,
\nthe giving of notice or otherwise, (i) require any of the Credit Parties or any
\nof their Subsidiaries to obtain any Governmental Approval not otherwise already
\nobtained or violate any Applicable Law relating to the Credit Parties or any of
\ntheir Subsidiaries, (ii) conflict with, result in a breach of or constitute a
\ndefault under the articles of incorporation, bylaws or other organizational
\ndocuments of the Credit Parties or any of their Subsidiaries or any indenture or
\nother material agreement or instrument to which such Person is a party or by
\nwhich any of its properties may be bound or any Governmental Approval relating
\nto such Person except as could not reasonably be expected to have a Material
\nAdverse Effect, or (iii) result in or require the creation or imposition of any
\nmaterial Lien upon or with respect to any property now owned or hereafter
\nacquired by such Person.<\/p>\n
(e) Compliance with Law; Governmental Approvals. Other than with
\nrespect to environmental matters, which are treated exclusively in Section
\n6.1(h) hereof, each of the Credit Parties and their respective Subsidiaries (i)
\nhas all Governmental Approvals required by any Applicable Law for it to conduct
\nits business, each of which is in full force and effect, is final and not
\nsubject to review on appeal and is not the subject of any pending or, to the
\nbest of the Credit Parties’ knowledge, threatened attack by direct or collateral
\nproceeding, and (ii) is in compliance with each Governmental Approval applicable
\nto it and in compliance with all other Applicable Laws relating to it or any of
\nits respective properties; in each case, except where the failure to do so could
\nnot reasonably be expected to have a Material Adverse Effect.<\/p>\n
58<\/p>\n
63<\/p>\n
(f) Tax Returns and Payments. Each of the Credit Parties and their
\nrespective Subsidiaries has timely filed or caused to be filed all federal and
\nstate, local and other tax returns required by Applicable Law to be filed, and
\nhas paid, or made adequate provision for the payment of, all federal and state,
\nlocal and other taxes, assessments and governmental charges or levies upon it
\nand its property, income, profits and assets which are due and payable, except
\ntaxes (i) that are being contested in good faith by appropriate proceedings and
\nfor which such Credit Party or Subsidiary, as applicable, has set aside on its
\nbooks adequate reserves or (ii) to the extent the failure to do so could not
\nreasonably be expected to have a Material Adverse Effect. No Governmental
\nAuthority has asserted any material Lien or other claim against the Credit
\nParties or any Subsidiary thereof with respect to unpaid taxes which has not
\nbeen discharged or resolved. The charges, accruals and reserves on the books of
\neach of the Credit Parties and any of their respective Subsidiaries in respect
\nof federal and all material state, local and other taxes for all Fiscal Years
\nand portions thereof since the organization of each of the Credit Parties and
\nany of their Subsidiaries are, in the judgment of the Credit Parties, adequate,
\nand the Credit Parties do not anticipate any material additional taxes or
\nassessments for any of such years.<\/p>\n
(g) Intellectual Property Matters. Each of the Credit Parties and
\nits Subsidiaries owns or possesses rights to use all franchises, licenses,
\ncopyrights, copyright applications, patents, patent rights or licenses, patent
\napplications, trademarks, trademark rights, trade names, trade name rights,
\ncopyrights and rights with respect to the foregoing which are required to
\nconduct its business except where the failure to do so could not reasonably be
\nexpected to have a Material Adverse Effect. No event has occurred which, to the
\nknowledge of the Credit Parties, permits, or after notice or lapse of time or
\nboth would permit, the revocation or termination of any such rights, and, to the
\nknowledge of the Credit Parties, neither the Credit Parties nor any Subsidiary
\nthereof is liable to any Person for infringement under Applicable Law with
\nrespect to any such rights as a result of its business operations, except as
\ncould not reasonably be expected to have a Material Adverse Effect.<\/p>\n
(h) Environmental Matters. Except as set forth in the Current SEC
\nReports or as otherwise could not reasonably be expected to have a Material
\nAdverse Effect:<\/p>\n
(i) The properties of the Credit Parties and their Subsidiaries
\n(including soils, surface waters, groundwaters on, at or under such
\nproperties) do not contain and are not otherwise affected by, and to
\nthe Credit Parties’ knowledge have not previously contained or been
\naffected by, any Hazardous Materials in amounts or concentrations which
\n(A) constitute or constituted a violation of applicable Environmental
\nLaws or (B) could give rise to liability or obligation under applicable
\nEnvironmental Laws;<\/p>\n
(ii) The properties of the Credit Parties and their Subsidiaries
\nand all operations conducted in connection therewith are in compliance,
\nand have been in compliance, with all applicable Environmental Laws,
\nand there are no Hazardous Materials at, under or about such properties
\nor such operations which could reasonably be expected to interfere with
\nthe continued operation of such properties;<\/p>\n
59<\/p>\n
64<\/p>\n
(iii) The Credit Parties and their Subsidiaries have obtained,
\nare in compliance with, and have made all appropriate filings for
\nissuance or renewal of, all permits, licenses, and other governmental
\nconsents required by applicable Environmental Laws (“Environmental
\nPermits”), and all such Environmental Permits are in full force and
\neffect;<\/p>\n
(iv) Neither any of the Credit Parties nor any Subsidiary
\nthereof has received any notice of violation, alleged violation,
\nnon-compliance, liability or potential liability regarding
\nenvironmental matters or compliance with Environmental Laws, nor do the
\nCredit Parties have knowledge or reason to believe that any such notice
\nwill be received or is being threatened;<\/p>\n
(v) To the knowledge of the Credit Parties, Hazardous Materials
\nhave not been transported or disposed of from the properties of the
\nCredit Parties or any of their Subsidiaries in violation of, or in a
\nmanner or to a location which could reasonably be expected to give rise
\nto liability under, Environmental Laws, nor, to the knowledge of the
\nCredit Parties, have any Hazardous Materials been generated, treated,
\nstored or disposed of at, on or under any of such properties in
\nviolation of, or in a manner which could reasonably be expected to give
\nrise to liability under, any Environmental Laws;<\/p>\n
(vi) No judicial proceedings or governmental or administrative
\naction is pending, or, to the knowledge of the Credit Parties,
\nthreatened, under any Environmental Law to which any of the Credit
\nParties or any Subsidiary thereof has been or will be named as a party,
\nnor are there any consent decrees or other decrees, consent orders,
\nadministrative orders or other orders, or other administrative or
\njudicial requirements outstanding under any Environmental Law with
\nrespect to the properties or operations of the Credit Parties and their
\nSubsidiaries; and<\/p>\n
(vii) To the knowledge of the Credit Parties, there has been no
\nrelease, or threat of release, of Hazardous Materials at or from the
\nproperties of the Credit Parties or any of their Subsidiaries, in
\nviolation of or in amounts or in a manner that could reasonably be
\nexpected to give rise to liability under Environmental Laws.<\/p>\n
(i) ERISA.<\/p>\n
(i) Each of the Credit Parties and each ERISA Affiliate is in
\ncompliance with all applicable provisions of ERISA and the regulations
\nand published interpretations thereunder with respect to all Employee
\nBenefit Plans except where any such noncompliance could not reasonably
\nbe expected to have a Material Adverse Effect. Except for any failure
\nthat would not reasonably be expected to have a Material Adverse
\nEffect, each Employee Benefit Plan that is intended to be qualified
\nunder Section 401(a) of the Code has been determined by the Internal
\nRevenue Service to be so qualified, and each trust related to such plan
\nhas been determined to be exempt under Section 501(a) of the Code. No
\nliability that could reasonably be expected to have a Material Adverse
\nEffect has been incurred by the Credit Parties or any ERISA Affiliate
\nwhich remains<\/p>\n
60<\/p>\n
65<\/p>\n
unsatisfied for any taxes or penalties with respect to any Employee
\nBenefit Plan or any Multiemployer Plan;<\/p>\n
(ii) No accumulated funding deficiency (as defined in Section
\n412 of the Code) has been incurred (without regard to any waiver
\ngranted under Section 412 of the Code), nor has any funding waiver from
\nthe Internal Revenue Service been received or requested with respect to
\nany Pension Plan except for any accumulated funding deficiency that
\ncould not reasonably be expected to have a Material Adverse Effect;<\/p>\n
(iii) Neither the Credit Parties nor any ERISA Affiliate has:
\n(A) engaged in a nonexempt prohibited transaction described in Section
\n406 of ERISA or Section 4975 of the Code, (B) incurred any liability to
\nthe PBGC which remains outstanding other than the payment of premiums
\nand there are no premium payments which are due and unpaid, (C) failed
\nto make a required contribution or payment to a Multiemployer Plan, or
\n(D) failed to make a required installment or other required payment
\nunder Section 412 of the Code except where any of the foregoing
\nindividually or in the aggregate could not reasonably be expected to
\nhave a Material Adverse Effect;<\/p>\n
(iv) No Termination Event that could reasonably be expected to
\nresult in a Material Adverse Effect has occurred or is reasonably
\nexpected to occur; and<\/p>\n
(v) No proceeding, claim, lawsuit and\/or investigation is
\nexisting or, to the knowledge of the Credit Parties, threatened
\nconcerning or involving any Employee Benefit Plan that could reasonably
\nbe expected to result in a Material Adverse Effect.<\/p>\n
(j) Margin Stock. Neither the Credit Parties nor any Subsidiary
\nthereof is engaged principally or as one of its activities in the business of
\nextending credit for the purpose of “purchasing” or “carrying” any “margin
\nstock” (as each such term is defined or used in Regulation U of the Board of
\nGovernors of the Federal Reserve System). No part of the proceeds of any of the
\nLoans or Letters of Credit will be used for purchasing or carrying margin stock,
\nunless the Credit Parties shall have given the Administrative Agent and Lenders
\nprior notice of such event and such other information as is reasonably necessary
\nto permit the Administrative Agent and Lenders to comply, in a timely fashion,
\nwith all reporting obligations required by Applicable Law, or for any purpose
\nwhich violates, or which would be inconsistent with, the provisions of
\nRegulation T, U or X of such Board of Governors.<\/p>\n
(k) Government Regulation. Neither the Credit Parties nor any
\nSubsidiary thereof is an “investment company” or a company “controlled” by an
\n“investment company” (as each such term is defined or used in the Investment
\nCompany Act of 1940, as amended) and neither the Credit Parties nor any
\nSubsidiary thereof is, or after giving effect to any Extension of Credit will
\nbe, subject to regulation under the Public Utility Holding Company Act of 1935
\nor the Interstate Commerce Act, each as amended.<\/p>\n
(l) Burdensome Provisions. Neither the Credit Parties nor any
\nSubsidiary thereof is a party to any indenture, agreement, lease or other
\ninstrument, or subject to any corporate or partnership restriction, Governmental
\nApproval or Applicable Law which is so unusual or<\/p>\n
61<\/p>\n
66<\/p>\n
burdensome as in the foreseeable future could be reasonably expected to have a
\nMaterial Adverse Affect. The Credit Parties and their Subsidiaries do not
\npresently anticipate that future expenditures needed to meet the provisions of
\nany statutes, orders, rules or regulations of a Governmental Authority will be
\nso burdensome as to have a Material Adverse Effect.<\/p>\n
(m) Financial Statements; Financial Condition: Etc.<\/p>\n
(i) The (A) audited Consolidated balance sheets of the Credit
\nParties and their Subsidiaries as of May 30, 1998; and the related
\nstatements of income, stockholders’ equity and cash flows for the
\nFiscal Year then ended and (B) unaudited Consolidated balance sheet of
\nthe Credit Parties and their Subsidiaries as of November 28, 1998, and
\nrelated unaudited interim statements of income, stockholders’ equity
\nand cash flows, copies of which have been furnished to the
\nAdministrative Agent and each Lender, are complete in all material
\nrespects and fairly present in all material respects the assets,
\nliabilities and financial position of the Credit Parties and their
\nSubsidiaries as at such dates, and the results of the operations and
\nchanges of financial position for the periods then ended, subject to
\nnormal year end adjustments. All such financial statements, including
\nthe related notes thereto, have been prepared in accordance with GAAP.<\/p>\n
(ii) As of the Closing Date, (a) the sum of the assets, at a
\nfair valuation, of each Credit Party on a stand-alone basis and of the
\nCredit Parties and their Subsidiaries taken as a whole will exceed its
\nor their debts, respectively; (b) each Credit Party on a stand-alone
\nbasis and the Credit Parties and their Subsidiaries taken as a whole
\nhas not incurred and does not intend to incur, and does not believe
\nthat it will incur, debts beyond its or their ability to pay such debts
\nas such debts mature, respectively; and (c) each Credit Party on a
\nstand-alone basis and the Credit Parties and their Subsidiaries taken
\nas a whole will have sufficient capital with which to conduct its or
\ntheir business, respectively. For purposes of this Section, “debt”
\nmeans any liability on a claim, and “claim” means (i) right to payment,
\nwhether or not such a right is reduced to judgment, liquidated,
\nunliquidated, fixed, contingent, matured, unmatured, disputed,
\nundisputed, legal, equitable, secured or unsecured or (ii) right to an
\nequitable remedy for breach of performance if such breach gives rise to
\na payment, whether or not such right to an equitable remedy is reduced
\nto judgment, fixed, contingent, matured, unmatured, disputed,
\nundisputed, secured or unsecured. The amount of contingent liabilities
\nat any time shall be computed as the amount that, in the light of all
\nthe facts and circumstances existing at such time, represents the
\namount that can reasonably be expected to become an actual or matured
\nliability.<\/p>\n
(n) No Material Adverse Change. Since May 30, 1998, there has been
\nno Material Adverse Effect.<\/p>\n
(o) Liens. None of the properties and assets of the Credit
\nParties or any Subsidiary thereof is subject to any Lien, except Liens
\npermitted pursuant to Section 9.3.<\/p>\n
62<\/p>\n
67<\/p>\n
(p) Debt and Support Obligations. Schedule 6.1(p) is a complete
\nand correct listing of all Debt and Support Obligations of the Credit Parties
\nand their Subsidiaries as of the Closing Date in excess of $10,000,000.<\/p>\n
(q) Litigation. Except for matters existing on the Closing Date
\nand set forth in the Current SEC Reports, there are no actions, suits or
\nproceedings pending nor, to the knowledge of the Credit Parties, threatened
\nagainst or affecting the Credit Parties or any Subsidiary thereof or any of
\ntheir respective properties in any court or before any arbitrator of any kind or
\nbefore or by any Governmental Authority, which could reasonably be expected to
\nhave a Material Adverse Effect.<\/p>\n
(r) Absence of Defaults. Since November 28, 1998, to the knowledge
\nof the Borrowers, no event has occurred and is continuing which constitutes a
\nDefault or an Event of Default.<\/p>\n
(s) Absence of Bankruptcy Events. Since November 28, 1998, no
\nevent has occurred or is continuing which constitutes a Bankruptcy Event.<\/p>\n
(t) Accuracy and Completeness of Information. As of the Closing
\nDate, the Credit Parties have disclosed to the Lenders all agreements,
\ninstruments and corporate or other restrictions to which they or any of their
\nSubsidiaries are subject, and all other matters known to them, other than
\ngeneral market, economic and industry conditions, that, individually or in the
\naggregate, could reasonably be expected to have a Material Adverse Effect. The
\nwritten information, taken as a whole, furnished by or on behalf of the Credit
\nParties to the Administrative Agent or any Lender in connection with the
\nnegotiation of this Agreement or delivered hereunder (as modified or
\nsupplemented by other information so furnished) does not contain any material
\nmisstatement of fact or omit to state any material fact necessary to make the
\nstatements therein, in the light of the circumstances under which they were
\nmade, not misleading; provided that, with respect to any projected financial
\ninformation, the Credit Parties represent only that such information was
\nprepared in good faith based upon assumptions believed to be reasonable at the
\ntime.<\/p>\n
(u) Year 2000 Compliance. The Credit Parties have (i) initiated a
\nreview and assessment of all areas within their and each of their Subsidiaries’
\nmaterial business and operations that could reasonably be expected to be
\nadversely affected by the Year 2000 Problem, (ii) developed a plan, strategy or
\nother approach for addressing the Year 2000 Problem on a timely basis, and (iii)
\nimplemented that plan, strategy or other approach. Based on the foregoing and
\nupon the Credit Parties’ reliance on (i) any Year 2000 consulting services,
\nstudy, report or any other information performed or provided by any Person other
\nthan the Credit Parties or any of their Subsidiaries and (ii) any certification
\nor assurance of Year 2000 compliance provided by any vendor, supplier, servicer,
\nmanufacturer, customer or other provider of any hardware or software product or
\nother computer applications installed at the Credit Parties or any of their
\nSubsidiaries, the Credit Parties believe, as of the Closing Date, that all
\ncomputer applications (including, limited to the Credit Parties’ inquiries,
\nthose disclosed by their suppliers, vendors and customers) that are material to
\ntheir or any of their Subsidiaries’ business and operations are reasonably
\nexpected on a timely basis to be able to perform properly date-sensitive
\nfunctions for<\/p>\n
63<\/p>\n
68<\/p>\n
all dates before and after December 31, 1999 (that is, be “Year 2000
\ncompliant”), except to the extent that a failure to do so could not reasonably
\nbe expected to have a Material Adverse Effect.<\/p>\n
(v) Property. The Credit Parties and their Subsidiaries have good
\nand marketable title to all material properties owned by them and valid
\nleasehold interests in all material properties leased by them, including all
\nproperty reflected in the Current SEC Reports and in the balance sheets referred
\nto in Section 6.l(m)(i) (except as sold or otherwise disposed of since the date
\nof such balance sheet in the ordinary course of business or as permitted by the
\nterms of this Agreement), free and clear of all Liens, except Liens permitted
\npursuant to Section 9.3.<\/p>\n
(w) Labor Practices. Neither the Credit Parties nor any of their
\nSubsidiaries is engaged in any unfair labor practices that could reasonably be
\nexpected to have a Material Adverse Effect. There is (i) no unfair labor
\npractice complaint pending against any Credit Party or any of their Subsidiaries
\nor, to the knowledge of the Credit Parties, threatened against the Credit
\nParties or any of their Subsidiaries, before the National Labor Relations Board,
\nand no grievance or arbitration proceeding arising out of or under any
\ncollective bargaining agreement is so pending against the Credit Parties or any
\nof their Subsidiaries or, to the knowledge of the Credit Parties, threatened
\nagainst the Credit Parties or any of their Subsidiaries, (ii) no strike, labor
\ndispute, slowdown or stoppage pending against the Credit Parties or any of their
\nSubsidiaries or, to the knowledge of the Credit Parties, threatened against the
\nCredit Parties or any of their Subsidiaries and (iii) no union representation
\nquestion exists with respect to the employees of the Credit Parties or any of
\ntheir Subsidiaries except (with respect to any matter specified in clause (i),
\n(ii) or (iii) above, either individually or in the aggregate) such as could not
\nreasonably be expected to have a Material Adverse Effect.<\/p>\n
(x) SEC Reports. During the preceding three (3) Fiscal Years, the
\nCompany and its Subsidiaries have filed all forms, reports, statements
\n(including proxy statements) and other documents (such filings by the Credit
\nParties and their Subsidiaries are collectively referred to as the “SEC
\nReports”), required to be filed by it with the Securities and Exchange
\nCommission. The SEC Reports (i) were prepared in all material respects in
\naccordance with the requirements of the Securities Act of 1933, as amended, and
\nthe Securities Exchange Act of 1934, as amended, as the case may be, and the
\nrules and regulations of the Securities Exchange Commission thereunder
\napplicable to such SEC Reports at the time of filing thereof and (ii) did not at
\nthe time they were filed contain any untrue statement of a material fact or omit
\nto state a material fact required to be stated therein or necessary in order to
\nmake the statements therein, in the light of the circumstances under which they
\nwere made, not misleading, which untrue statement or omission was not corrected
\nin a subsequent SEC Report.<\/p>\n
SECTION 6.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC.<\/p>\n
All representations and warranties set forth in this Article VI and all
\nrepresentations and warranties contained in any certificate related hereto, or
\nany of the Loan Documents (including but not limited to any such representation
\nor warranty made in or in connection with any amendment thereto) shall
\nconstitute representations and warranties made under this Agreement. All
\nrepresentations and warranties made under this Agreement shall be made or deemed
\nto be made at and as of the Closing Date, shall survive the Closing Date and
\nshall not be waived by the<\/p>\n
64<\/p>\n
69<\/p>\n
execution and delivery of this Agreement, any investigation made by or on behalf
\nof the Lenders or any borrowing hereunder.<\/p>\n
ARTICLE VII<\/p>\n
FINANCIAL INFORMATION AND NOTICES<\/p>\n
Until all the Obligations (other than Obligations under Hedging
\nAgreements) have been paid and satisfied in full and the later of the 364 Day
\nFacility Termination Date or the Five Year Facility Termination Date, unless
\nconsent has been obtained in the manner set forth in Section 13.11 hereof, the
\nCredit Parties will furnish or cause to be furnished to the Administrative Agent
\nand to the Lenders at their respective addresses as set forth on Schedule 13.1,
\nor such other office as may be designated by the Administrative Agent and
\nLenders from time to time:<\/p>\n
SECTION 7.1 FINANCIAL STATEMENTS.<\/p>\n
(a) Quarterly Financial Statements. As soon as practicable and in
\nany event within forty-five (45) days after the end of each of the first three
\nfiscal quarters of each Fiscal Year, either (i) a copy of a report on Form 10-Q,
\nor any successor form, and any amendments thereto, filed by the Company with the
\nSecurities and Exchange Commission with respect to the immediately preceding
\nfiscal quarter or (ii) an unaudited Consolidated balance sheet of the Company
\nand its Subsidiaries as of the close of such fiscal quarter and unaudited
\nConsolidated statements of income, stockholders’ equity and cash flows for the
\nfiscal quarter then ended and that portion of the Fiscal Year then ended,
\nincluding the notes thereto, all in reasonable detail setting forth in
\ncomparative form the corresponding figures for the corresponding period or
\nperiods of (or, in the case of the balance sheet, as of the end of) the
\npreceding Fiscal Year and prepared by the Company in accordance with GAAP and,
\nif applicable, containing disclosure of the effect on the financial position or
\nresults of operations of any change in the application of accounting principles
\nand practices during the period, and certified by a Responsible Officer of the
\nCompany to present fairly in all material respects the financial condition of
\nthe Company and its Subsidiaries as of their respective dates and the results of
\noperations of the Company and its Subsidiaries for the respective periods then
\nended, subject to normal year end adjustments.<\/p>\n
(b) Annual Financial Statements. As soon as practicable and in any
\nevent within ninety (90) days after the end of each Fiscal Year, either (i) a
\ncopy of a report on Form 10-K, or any successor form, and any amendments
\nthereto, filed by the Company with the Securities and Exchange Commission with
\nrespect to the immediately preceding Fiscal Year or (ii) an audited Consolidated
\nbalance sheet of the Company and its Subsidiaries as of the close of such Fiscal
\nYear and audited Consolidated statements of income, stockholders’ equity and
\ncash flows for the Fiscal Year then ended, including the notes thereto, all in
\nreasonable detail setting forth in comparative form the corresponding figures
\nfor the preceding Fiscal Year and prepared by a nationally recognized
\nindependent certified public accounting firm acceptable to the Administrative
\nAgent in accordance with GAAP and, if applicable, containing disclosure of the
\neffect on the financial position or results of operation of any change in the
\napplication of accounting principles and practices during the year, and
\naccompanied by a report thereon by such<\/p>\n
65<\/p>\n
70<\/p>\n
certified public accountants that is not qualified with respect to scope
\nlimitations imposed by the Company or any of its Subsidiaries or with respect to
\naccounting principles followed by the Company or any of its Subsidiaries not in
\naccordance with GAAP.<\/p>\n
SECTION 7.2 OFFICER’S COMPLIANCE CERTIFICATE.<\/p>\n
At each time financial statements are delivered pursuant to Section
\n7.1(a) or (b) a certificate of a Responsible Officer of the Company in the form
\nof Exhibit G attached hereto (an “Officer’s Compliance Certificate”) including
\nthe calculations prepared by such Responsible Officer required to establish
\nwhether or not the Credit Parties and their Subsidiaries are in compliance with
\nthe financial covenants set forth in Section 9.1 hereof as at the end of each
\nrespective period.<\/p>\n
SECTION 7.3 ACCOUNTANTS’ CERTIFICATE.<\/p>\n
At each time financial statements are delivered pursuant to Section
\n7.1(b), a certificate of the independent public accountants certifying such
\nfinancial statements addressed to the Administrative Agent for the benefit of
\nthe Lenders stating that in making the examination necessary for the
\ncertification of such financial statements, they obtained no knowledge of any
\nDefault or Event of Default or, if such is not the case, specifying such Default
\nor Event of Default and its nature and period of existence.<\/p>\n
SECTION 7.4 OTHER REPORTS.<\/p>\n
(a) Promptly after the filing thereof, a copy of (i) each report
\nor other filing made by any of the Credit Parties or any or their Subsidiaries
\nwith the Securities and Exchange Commission and required by the Securities and
\nExchange Commission to be delivered to the shareholders of the Credit Parties or
\nany or their Subsidiaries, (ii) each report made by the Credit Parties or any of
\ntheir Subsidiaries to the Securities and Exchange Commission on Form 8-K and
\n(iii) each final registration statement of the Credit Parties or any of their
\nSubsidiaries filed with the Securities and Exchange Commission, except in
\nconnection with pension plans and other employee benefit plans; and<\/p>\n
(b) Such other information regarding the operations, business
\naffairs and financial condition of the Credit Parties or any of their
\nSubsidiaries as the Administrative Agent or any Lender may reasonably request.<\/p>\n
SECTION 7.5 NOTICE OF LITIGATION AND OTHER MATTERS.<\/p>\n
Prompt (but in no event later than ten (10) Business Days after an
\nexecutive officer of any of the Credit Parties obtains knowledge thereof)
\ntelephonic (confirmed in writing) or written notice of:<\/p>\n
(a) the commencement of all proceedings and investigations by or
\nbefore any Governmental Authority and all actions and proceedings in any court
\nor before any arbitrator against or involving any of the Credit Parties or any
\nSubsidiary thereof or any of their respective<\/p>\n
66<\/p>\n
71<\/p>\n
properties, assets or businesses (i) which in the reasonable judgment of the
\nCredit Parties could reasonably be expected to have a Material Adverse Effect,
\n(ii) with respect to any material Debt of the Credit Parties or any of their
\nSubsidiaries or (iii) with respect to any Loan Document;<\/p>\n
(b) any notice of any violation received by any of the Credit
\nParties or any Subsidiary thereof from any Governmental Authority including,
\nwithout limitation, any notice of violation of Environmental Laws, which in the
\nreasonable judgment of the Credit Parties in any such case could reasonably be
\nexpected to have a Material Adverse Effect;<\/p>\n
(c) (i) any unfavorable determination letter from the Internal
\nRevenue Service regarding the qualification of an Employee Benefit Plan under
\nSection 401(a) of the Code (along with a copy thereof) which could reasonably be
\nexpected to have a Material Adverse Effect, (ii) all notices received by any of
\nthe Credit Parties or any ERISA Affiliate of the PBGC’s intent to terminate any
\nPension Plan or to have a trustee appointed to administer any Pension Plan,
\n(iii) all notices received by any of the Credit Parties or any ERISA Affiliate
\nfrom a Multiemployer Plan sponsor concerning the imposition or amount of
\nwithdrawal liability pursuant to Section 4202 of ERISA which could reasonably be
\nexpected to have a Material Adverse Effect, (iv) the Credit Parties obtaining
\nknowledge or reason to know that the Credit Parties or any ERISA Affiliate has
\nfiled or intends to file a notice of intent to terminate any Pension Plan under
\na distress termination within the meaning of Section 4041(c) of ERISA and (v)
\nthe occurrence of a Reportable Event;<\/p>\n
(d) the occurrence of any event which constitutes, or which could
\nreasonably be expected to result in, a Default or an Event of Default; and<\/p>\n
(e) the occurrence of any event which constitutes, or which could
\nreasonably be expected to result in, a Material Adverse Effect.<\/p>\n
SECTION 7.6 ACCURACY OF INFORMATION.<\/p>\n
All written information, reports, statements and other papers and data
\nfurnished by or on behalf of the Credit Parties to the Administrative Agent or
\nany Lender (other than financial forecasts) whether pursuant to this Article VII
\nor any other provision of this Agreement, shall be, at the time the same is so
\nfurnished, true and complete in all material respects.<\/p>\n
ARTICLE VIII<\/p>\n
AFFIRMATIVE COVENANTS<\/p>\n
Until all of the Obligations (other than any Obligations under any
\nHedging Agreement) have been paid and satisfied in full and the 364 Day Facility
\nCommitment and the Five Year Facility Commitment have expired or been
\nterminated, unless consent has been obtained in the manner provided for in
\nSection 13.l1, the Credit Parties will, and will cause each of their respective
\nSubsidiaries to:<\/p>\n
67<\/p>\n
72<\/p>\n
SECTION 8.1 PRESERVATION OF CORPORATE EXISTENCE AND RELATED
\nMATTERS.<\/p>\n
Except as permitted by Section 9.5, preserve and maintain its separate
\ncorporate existence and all rights, franchises, licenses and privileges
\nnecessary to the conduct of its business, and qualify and remain qualified as a
\nforeign corporation and authorized to do business in each jurisdiction where the
\nnature and scope of its activities require it to so qualify under Applicable
\nLaw, except where the failure to so preserve and maintain its existence and
\nrights or to so qualify would not have a Material Adverse Effect.<\/p>\n
SECTION 8.2 MAINTENANCE OF PROPERTY.<\/p>\n
Protect and preserve all properties useful in and material to its
\nbusiness, including copyrights, patents, trade names and trademarks; maintain in
\ngood working order and condition all buildings, equipment and other tangible
\nreal and personal property material to the conduct of its business, ordinary
\nwear and tear excepted; and from time to time make or cause to be made all
\nrenewals, replacements and additions to such property necessary for the conduct
\nof its business, so that the business carried on in connection therewith may be
\nproperly and advantageously conducted at all times, except, in each case, where
\nthe failure to do so would not have a Material Adverse Effect.<\/p>\n
SECTION 8.3 INSURANCE.<\/p>\n
Maintain insurance with financially sound and reputable insurance
\ncompanies against such risks and in such amounts as are consistent with past
\npractices and prudent business practice (and in any event consistent with normal
\nindustry practice), and as may be required by Applicable Law.<\/p>\n
SECTION 8.4 ACCOUNTING METHODS AND FINANCIAL RECORDS.<\/p>\n
Maintain a system of accounting, and keep such books, records and
\naccounts (which shall be true and complete in all material respects) as may be
\nrequired or as may be necessary to permit the preparation of financial
\nstatements in accordance with GAAP and in compliance with the regulations of any
\nGovernmental Authority having jurisdiction over it or any of its properties.<\/p>\n
SECTION 8.5 PAYMENT AND PERFORMANCE OF OBLIGATIONS.<\/p>\n
(a) Pay and perform all Obligations under this Agreement and the
\nother Loan Documents.<\/p>\n
(b) Pay and discharge (i) all material taxes, assessments and
\ngovernmental charges or levies imposed upon it or upon its income or profits, or
\nupon any properties belonging to it, prior to the date on which penalties attach
\nthereto, and (ii) all other material indebtedness, obligations and liabilities
\nin accordance with customary trade practices; provided that the Credit Parties
\nor such Subsidiary may contest any item described in clause (i) or (ii) of this
\nSection 8.5(b) in good faith and by proper proceedings so long as adequate
\nreserves are maintained with respect thereto to the extent required by GAAP.<\/p>\n
68<\/p>\n
73<\/p>\n
(c) Perform all of its obligations under the terms of each mortgage,
\nindenture, security agreement, loan agreement or credit agreement and each other
\nagreement, contract or instrument by which it is bound, except where such
\nnon-performances as could not, individually or in the aggregate, reasonably be
\nexpected to have a Material Adverse Effect.<\/p>\n
SECTION 8.6 COMPLIANCE WITH LAWS AND APPROVALS.<\/p>\n
Observe and remain in compliance with all Applicable Laws and maintain
\nin full force and effect all Governmental Approvals, in each case applicable to
\nthe conduct of its business, except where the failure to observe or comply could
\nnot reasonably be expected to have a Material Adverse Effect.<\/p>\n
SECTION 8.7 ENVIRONMENTAL LAWS.<\/p>\n
In addition to and without limiting the generality of Section 8.6, (a)
\ncomply with, and use best efforts to ensure such compliance by all tenants and
\nsubtenants with all applicable Environmental Laws and obtain and comply with and
\nmaintain, and ensure that all tenants and subtenants obtain and comply with and
\nmaintain, any and all licenses, approvals, notifications, registrations or
\npermits required by applicable Environmental Laws, except where the failure to
\ncomply could not reasonably be expected to have a Material Adverse Effect, (b)
\nconduct and complete all investigations, studies, sampling and testing, and all
\nremedial, removal and other actions required under Environmental Laws, and
\npromptly comply with all lawful orders and directives of any Governmental
\nAuthority regarding Environmental Laws, except (i) where the failure to do so
\ncould not reasonably be expected to have a Material Adverse Effect or (ii) to
\nthe extent the Credit Parties or any of their Subsidiaries are contesting, in
\ngood faith, any such requirement, order or directive before the appropriate
\nGovernmental Authority so long as adequate reserves are maintained with respect
\nthereto to the extent required by GAAP, and (c) defend, indemnify and hold
\nharmless the Administrative Agent and the Lenders, and their respective parents,
\nSubsidiaries, Affiliates, employees, agents, officers and directors, from and
\nagainst any claims, demands, penalties, fines, liabilities, settlements,
\ndamages, costs and expenses of whatever kind or nature known or unknown,
\ncontingent or otherwise, arising out of, or in any way relating to the violation
\nof, noncompliance with or liability under any Environmental Laws applicable to
\nthe operations or properties of the Credit Parties or such Subsidiaries, or any
\norders, requirements or demands of Governmental Authorities related thereto,
\nincluding, without limitation, reasonable attorney’s and consultant’s fees,
\ninvestigation and laboratory fees, response costs, court costs and litigation
\nexpenses, except to the extent that any of the foregoing directly result from
\nthe gross negligence or willful misconduct of the party seeking indemnification
\ntherefor.<\/p>\n
SECTION 8.8 COMPLIANCE WITH ERISA.<\/p>\n
In addition to and without limiting the generality of Section 8.6, (a)
\ncomply with all applicable provisions of ERISA and the Code and the regulations
\nand published interpretations thereunder with respect to all Employee Benefit
\nPlans, except where the failure to so comply could not reasonably be expected to
\nhave a Material Adverse Effect, (b) not take any action or<\/p>\n
69<\/p>\n
74<\/p>\n
fail to take action the result of which would result in a liability to the PBGC
\nor to a Multiemployer Plan in an amount that could reasonably be expected to
\nhave a Material Adverse Effect, and (c) furnish to the Administrative Agent upon
\nthe Administrative Agent’s request such additional information about any
\nEmployee Benefit Plan concerning compliance with this covenant as may be
\nreasonably requested by the Administrative Agent.<\/p>\n
SECTION 8.9 CONDUCT OF BUSINESS.<\/p>\n
Maintain substantially all of its businesses in substantially the same
\nfields as the businesses conducted on the Closing Date and in lines of business
\nreasonably related thereto or as otherwise permitted pursuant to the terms of
\nthis Agreement.<\/p>\n
SECTION 8.10 VISITS AND INSPECTIONS.<\/p>\n
Permit representatives of the Administrative Agent or any Lender, from
\ntime to time upon reasonable prior notice and during ordinary business hours, to
\nvisit and inspect its properties; inspect and make extracts from its books,
\nrecords and files, including, but not limited to, management letters prepared by
\nindependent accountants; and discuss with its principal officers, and its
\nindependent accountants, its business, assets, liabilities, financial condition,
\nresults of operations and business prospects.<\/p>\n
SECTION 8.11 USE OF PROCEEDS.<\/p>\n
Use the proceeds of the Extensions of Credit for the purposes set forth
\nin Section 2.1(b).<\/p>\n
SECTION 8.12 YEAR 2000 COMPATIBILITY.<\/p>\n
Take all actions reasonably necessary to assure that the Credit
\nParties’ computer based systems (which if not functional would have a Material
\nAdverse Effect) are able to operate and effectively process data in a manner
\nthat is Year 2000 compliant (as defined in Section 6.1(u)). At the request of
\nthe Administrative Agent or any Lender, the Credit Parties shall provide
\ninformation to the Administrative Agent concerning the Credit Parties’ Year 2000
\ncompliance.<\/p>\n
ARTICLE IX<\/p>\n
NEGATIVE COVENANTS<\/p>\n
Until all of the Obligations (other than any Obligations under any
\nHedging Agreement) have been paid and satisfied in full and the 364 Day Facility
\nCommitment and the Five Year Facility Commitment have expired or been terminated
\nunless consent has been obtained in the manner set forth in Section 13.11:<\/p>\n
70<\/p>\n
75<\/p>\n
SECTION 9.1 FINANCIAL COVENANTS.<\/p>\n
(a) Maximum Leverage Ratio. As of the end of each fiscal quarter,
\ncommencing with the end of the first fiscal quarter ending after the Closing
\nDate, the Credit Parties will not permit the Leverage Ratio to be greater than
\n2.75 to 1.00.<\/p>\n
(b) Minimum Interest Coverage Ratio. As of the end of each fiscal
\nquarter, commencing with the end of the first fiscal quarter ending after the
\nClosing Date, the Company will not permit the Interest Coverage Ratio to be less
\nthan 4.00 to 1.00.<\/p>\n
SECTION 9.2 LIMITATIONS ON LIENS.<\/p>\n
The Credit Parties will not, and will not permit any of their
\nSubsidiaries to, create, incur, assume or suffer to exist any Lien on, or with
\nrespect to, any of their assets or properties (including without limitation
\nshares of capital stock or other ownership interests), real or personal, whether
\nnow owned or hereafter acquired, except:<\/p>\n
(a) Liens existing on the Closing Date and securing amounts
\nnot in excess of $l0,000,000 in aggregate principal amount;<\/p>\n
(b) Liens for taxes, assessments and other governmental charges or
\nlevies not yet due or as to which the period of grace, if any, related thereto
\nhas not expired or which are being contested in good faith and by appropriate
\nproceedings if adequate reserves are maintained to the extent required by GAAP;<\/p>\n
(c) The claims of materialmen, mechanics, carriers, warehousemen,
\nprocessors or landlords for labor, materials, supplies or rentals incurred in
\nthe ordinary course of business, (i) which are not overdue for a period of more
\nthan thirty (30) days or (ii) which are being contested in good faith and by
\nappropriate proceedings if adequate reserves are maintained to the extent
\nrequired by GAAP;<\/p>\n
(d) Liens consisting of deposits or pledges made in the ordinary
\ncourse of business in connection with, or to secure payment of, obligations
\nunder workers’ compensation, unemployment insurance or similar legislation or
\nobligations under customer service contracts;<\/p>\n
(e) Liens constituting encumbrances in the nature of zoning
\nrestrictions, easements and rights or restrictions of record on the use of real
\nproperty, which in the aggregate are not substantial in amount and which do not,
\nin any case, detract from the value of any material parcel of real property or
\nimpair the use thereof in the ordinary conduct of business;<\/p>\n
(f) Liens in favor of the Administrative Agent for the benefit of
\nthe Administrative Agent and the Lenders;<\/p>\n
(g) Liens on the property or assets of any Subsidiary existing at
\nthe time such Subsidiary becomes a Subsidiary of a Credit Party and not incurred
\nin contemplation thereof, as<\/p>\n
71<\/p>\n
76<\/p>\n
long as the outstanding principal amount of the Debt secured thereby is not
\nvoluntarily increased by such Subsidiary after the date such Subsidiary becomes
\na Subsidiary of such Credit Party;<\/p>\n
(h) Liens on the property or assets of the Credit Parties or any
\nSubsidiary securing Debt which is incurred to finance the acquisition of such
\nproperty or assets, provided that (i) each such Lien shall be created
\nsubstantially simultaneously with the acquisition of the related property or
\nassets; (ii) each such Lien does not at any time encumber any property other
\nthan the related property or assets financed by such Debt; (iii) the principal
\namount of Debt secured by each such Lien is not increased; and (iv) the
\nprincipal amount of Debt secured by each such Lien shall at no time exceed 100%
\nof the original purchase price of such related property or assets at the time
\nacquired; and<\/p>\n
(i) Liens not otherwise permitted by this Section 9.2 securing Debt
\nnot in excess of five percent (5%) of Consolidated Total Assets in the aggregate
\nat any time outstanding.<\/p>\n
SECTION 9.3 LIMITATIONS ON MERGERS AND LIQUIDATION.<\/p>\n
None of the Credit Parties will, or will permit any of its Subsidiaries
\nto, merge, consolidate or enter into any similar combination with any other
\nPerson or liquidate, wind-up or dissolve itself (or suffer any liquidation or
\ndissolution), except:<\/p>\n
(a) Any Credit Party or a Subsidiary may merge with another
\nPerson, provided that (i) such Person is organized under the law of the United
\nStates or one of its states, (ii) such Credit Party or the Subsidiary, as the
\ncase may be, is the corporation surviving such merger, (iii) immediately prior
\nto and after giving effect to such merger, no Default or Event of Default exists
\nor would exist and (iv) the Board of Directors of such Person has approved such
\nmerger;<\/p>\n
(b) Any Wholly-Owned Subsidiary of a Credit Party may merge
\ninto a Credit Party or any other Wholly-Owned Subsidiary of a Credit Party; and<\/p>\n
(c) Any Wholly-Owned Subsidiary of a Credit Party may liquidate,
\nwind-up or dissolve itself into a Credit Party or any other Wholly-Owned
\nSubsidiary of a Credit Party.<\/p>\n
SECTION 9.4 LIMITATIONS ON SALE OR TRANSFER OF ASSETS.<\/p>\n
The Credit Parties will not, and will not permit any of their
\nSubsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of:<\/p>\n
(a) All or substantially all of the property, business or assets of
\nthe Company and its Subsidiaries on a Consolidated basis;<\/p>\n
(b) Any of their property, business or assets if such transaction
\nwould reasonably be expected to have a Material Adverse Effect; or<\/p>\n
(c) Any of their property, business or assets if immediately prior
\nto or after giving effect to such transaction a Default or an Event of Default
\nexists or would exist.<\/p>\n
72<\/p>\n
77<\/p>\n
SECTION 9.5 PROHIBITIONS ON LIMITATIONS ON DIVIDENDS AND
\nDISTRIBUTIONS.<\/p>\n
The Credit Parties will not permit any Subsidiary to agree to, incur,
\nassume or suffer to exist any restriction, limitation or other encumbrance (by
\ncovenant or otherwise) on the ability of such Subsidiary to make any payment to
\na Credit Party or any of its Subsidiaries (in the form of dividends,
\nintercompany advances or otherwise), except:<\/p>\n
(a) Restrictions and limitations existing on the Closing Date and
\ndescribed on Schedule 9.5;<\/p>\n
(b) Restrictions and limitations applicable to a Subsidiary
\nexisting at the time such Subsidiary becomes a Subsidiary of a Credit Party and
\nnot incurred in contemplation thereof, as long as no such restriction or
\nlimitation is made more restrictive after the date such Subsidiary becomes a
\nSubsidiary of such Credit Party; and<\/p>\n
(c) Other restrictions and limitations that are not material either
\nindividually or in the aggregate.<\/p>\n
SECTION 9.6 TRANSACTIONS WITH AFFILIATES.<\/p>\n
The Credit Parties will not, and will not permit any of their
\nSubsidiaries to, directly or indirectly (a) make any loan or advance to, or
\npurchase or assume any note or other obligation to or from, any of its officers,
\ndirectors, shareholders or Affiliates, or to or from any member of the immediate
\nfamily of any of its officers, directors, shareholders or Affiliates, other than
\n(i) loans or advances to customers of the Credit Parties and their Subsidiaries
\nin the ordinary course of business which are arm’s length, and (ii) any other
\nloan or advance or assumption that would not cause the aggregate amount of all
\nsuch loans and advances and assumed notes and advances to exceed $5,000,000, (b)
\nenter into, or be a party to, any subcontract of any operations or other
\ntransaction with any of its Affiliates, except pursuant to the reasonable
\nrequirements of its business and upon fair and reasonable terms that are no less
\nfavorable to it than it would obtain in a comparable arm’s length transaction
\nwith a Person not its Affiliate and except for transactions which are not
\nmaterial either individually or in the aggregate. Nothing contained in this
\nSection 9.6 shall prohibit the Credit Parties or any of their Subsidiaries that
\nhave obtained an ownership interest in a customer in connection with a loan or
\ncredit workout to provide non-standard payment or other terms to such customer
\nor otherwise to do business with such customer in the ordinary course of
\nbusiness.<\/p>\n
SECTION 9.7 CERTAIN ACCOUNTING CHANGES.<\/p>\n
The Credit Parties will not (a) change their Fiscal Year ends in order
\nto avoid a Default or an Event of Default or if a Material Adverse Effect would
\nresult therefrom or (b) make any material change in their accounting treatment
\nand reporting practices except as required by GAAP.<\/p>\n
73<\/p>\n
78<\/p>\n
SECTION 9.8 AMENDMENTS; PAYMENTS AND PREPAYMENTS OF SUBORDINATED
\nDEBT.<\/p>\n
At any time after the occurrence of a Default or an Event of Default
\nand during the continuance thereof, the Credit Parties will not, and will not
\npermit any of their Subsidiaries to, amend or modify (or permit the modification
\nor amendment of) any of the terms or provisions of any Subordinated Debt, or
\ncancel or forgive, make any voluntary or optional payment or prepayment on, or
\nredeem or acquire for value (including without limitation by way of depositing
\nwith any trustee with respect thereto money or securities before due for the
\npurpose of payment when due) any Subordinated Debt.<\/p>\n
SECTION 9.9 SALE LEASEBACK TRANSACTIONS.<\/p>\n
The Credit Parties will not, and will not permit any of their
\nSubsidiaries to, sell or transfer any material property or assets to anyone
\n(other than the Company or a Wholly-Owned Subsidiary of the Company) with the
\nintention of taking back a lease of such property or assets or any similar
\nproperty or assets, except in connection with a lease for a temporary period
\nduring or at the end of which it is intended that the use by such Credit Party
\nor its Subsidiary of such property or assets will be discontinued.<\/p>\n
ARTICLE X<\/p>\n
GUARANTY OF THE COMPANY<\/p>\n
SECTION 10.1 GUARANTY OF PAYMENT.<\/p>\n
Subject to Section 10.7 below, the Company hereby unconditionally
\nguarantees to each Lender and the Administrative Agent the prompt payment of the
\nGuaranteed Obligations in full when due (whether at stated maturity, as a
\nmandatory prepayment, by acceleration or otherwise). This guaranty is a guaranty
\nof payment and not solely of collection and is a continuing guaranty and shall
\napply to all Guaranteed Obligations whenever arising.<\/p>\n
SECTION 10.2 OBLIGATIONS UNCONDITIONAL.<\/p>\n
The obligations of the Company hereunder are absolute and
\nunconditional, irrespective of the value, genuineness, validity, regularity or
\nenforceability of this Agreement, or any other agreement or instrument referred
\nto herein, to the fullest extent permitted by Applicable Law, irrespective of
\nany other circumstance whatsoever which might otherwise constitute a legal or
\nequitable discharge or defense of a surety or guarantor. The Company agrees that
\nthis guaranty may be enforced by the Lenders without the necessity at any time
\nof resorting to or exhausting any security or collateral and without the
\nnecessity at any time of having recourse to the Notes, this Agreement or any
\nother Loan Document or any collateral, if any, hereafter securing the Guaranteed
\nObligations or otherwise and the Company hereby waives the right to require the
\nLenders to proceed against a Designated Borrower or any other Person (including
\na co-guarantor) or to require the Lenders to pursue any other remedy or enforce
\nany other right. The Company<\/p>\n
74<\/p>\n
79<\/p>\n
further agrees that it shall have no right of subrogation, indemnity,
\nreimbursement or contribution against a Designated Borrower or any other
\nguarantor of the Guaranteed Obligations for amounts paid under this guaranty
\nuntil such time as the Lenders have been paid in full, all commitments under
\nthis Agreement have been terminated and no Person or Governmental Authority
\nshall have any right to request any return or reimbursement of funds from the
\nLenders in connection with monies received under this Agreement. The Company
\nfurther agrees that nothing contained herein shall prevent the Lenders from
\nsuing on the Notes, this Agreement or any other Loan Document or foreclosing its
\nsecurity interest in or Lien on any collateral, if any, securing the Guaranteed
\nObligations or from exercising any other rights available to it under this
\nAgreement, the Notes, or any other instrument of security, if any, and the
\nexercise of any of the aforesaid rights and the completion of any foreclosure
\nproceedings shall not constitute a discharge of any of the Company’s obligations
\nhereunder; it being the purpose and intent of the Company that its obligations
\nhereunder shall be absolute, independent and unconditional under any and all
\ncircumstances. Neither the Company’s obligations under this guaranty nor any
\nremedy for the enforcement thereof shall be impaired, modified, changed or
\nreleased in any manner whatsoever by an impairment, modification, change,
\nrelease or limitation of the liability of a Designated Borrower or by reason of
\nthe bankruptcy or insolvency of such Borrower. The Company waives any and all
\nnotice of the creation, renewal, extension or accrual of any of the Guaranteed
\nObligations and notice of or proof of reliance of by the Administrative Agent or
\nany Lender upon this guaranty or acceptance of this guaranty. The Guaranteed
\nObligations, and any of them, shall conclusively be deemed to have been created,
\ncontracted or incurred, or renewed, extended, amended or waived, in reliance
\nupon this guaranty. All dealings between the Designated Borrowers and the
\nCompany, on the one hand, and the Administrative Agent and the Lenders, on the
\nother hand, likewise shall be conclusively presumed to have been had or
\nconsummated in reliance upon this guaranty.<\/p>\n
SECTION 10.3 MODIFICATIONS.<\/p>\n
The Company agrees that (a) all or any part of the security which
\nhereafter may be held for the Guaranteed Obligations, if any, may be exchanged,
\ncompromised or surrendered from time to time; (b) the Lenders shall not have any
\nobligation to protect, perfect, secure or insure any such security interests,
\nliens or encumbrances which hereafter may be held, if any, for the Guaranteed
\nObligations or the properties subject thereto; (c) the time or place of payment
\nof the Guaranteed Obligations may be changed or extended, in whole or in part,
\nto a time certain or otherwise, and may be renewed or accelerated, in whole or
\nin part; (d) a Designated Borrower and any other party liable for payment under
\nthis Agreement may be granted indulgences generally; (e) any of the provisions
\nof the Notes, this Agreement or any other Loan Document may be modified, amended
\nor waived; (f) any party (including any co-guarantor) liable for the payment
\nthereof may be granted indulgences or be released; and (g) any deposit balance
\nfor the credit of a Designated Borrower or any other party liable for the
\npayment of the Guaranteed Obligations or liable upon any security therefor may
\nbe released, in whole or in part, at, before or after the stated, extended or
\naccelerated maturity of the Guaranteed Obligations, all without notice to or
\nfurther assent by the Company, which shall remain bound thereon, notwithstanding
\nany such exchange, compromise, surrender, extension, renewal, acceleration,
\nmodification, indulgence or release.<\/p>\n
75<\/p>\n
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SECTION 10.4 WAIVER OF RIGHTS.<\/p>\n
The Company expressly waives to the fullest extent permitted by
\napplicable law: (a) notice of acceptance of this guaranty by the Lenders and of
\nall Extensions of Credit to a Designated Borrower by the Lenders; (b)
\npresentment and demand for payment or performance of any of the Guaranteed
\nObligations; (c) protest and notice of dishonor or of default (except as
\nspecifically required in this Agreement) with respect to the Guaranteed
\nObligations or with respect to any security therefor; (d) notice of the Lenders
\nobtaining, amending, substituting for, releasing, waiving or modifying any Lien,
\nif any, hereafter securing the Guaranteed Obligations, or the Lenders’
\nsubordinating, compromising, discharging or releasing such Liens, if any; (e)
\nall other notices to which the Company might otherwise be entitled in connection
\nwith the guaranty evidenced by this Article X; and (f) demand for payment under
\nthis guaranty.<\/p>\n
SECTION 10.5 REINSTATEMENT.<\/p>\n
The obligations of the Company under this Article X shall be
\nautomatically reinstated if and to the extent that for any reason any payment by
\nor on behalf of any Person in respect of the Guaranteed Obligations is rescinded
\nor must be otherwise restored by any holder of any of the Guaranteed
\nObligations, whether as a result of any proceedings in bankruptcy or
\nreorganization or otherwise, and the Company agrees that it will indemnify the
\nAdministrative Agent and each Lender on demand for all reasonable costs and
\nexpenses (including, without limitation, reasonable fees and expenses of
\ncounsel) incurred by the Administrative Agent or such Lender in connection with
\nsuch rescission or restoration, including any such costs and expenses incurred
\nin defending against any claim alleging that such payment constituted a
\npreference, fraudulent transfer or similar payment under any bankruptcy,
\ninsolvency or similar law.<\/p>\n
SECTION 10.6 REMEDIES.<\/p>\n
The Company agrees that, as between the Company, on the one hand, and
\nthe Administrative Agent and the Lenders, on the other hand, the Guaranteed
\nObligations may be declared to be forthwith due and payable as provided in
\nSection 11.2 (and shall be deemed to have become automatically due and payable
\nin the circumstances provided in Section 11.2) notwithstanding any stay,
\ninjunction or other prohibition preventing such declaration (or preventing such
\nGuaranteed Obligations from becoming automatically due and payable) as against
\nany other Person and that, in the event of such declaration (or such Guaranteed
\nObligations being deemed to have become automatically due and payable), such
\nGuaranteed Obligations (whether or not due and payable by any other Person)
\nshall forthwith become due and payable by the Company.<\/p>\n
SECTION 10.7 LIMITATION OF GUARANTY.<\/p>\n
Notwithstanding any provision to the contrary contained herein, to the
\nextent the obligations of the Company shall be adjudicated to be invalid or
\nunenforceable for any reason (including, without limitation, because of any
\napplicable state or federal law relating to fraudulent conveyances or transfers)
\nthen the obligations of the Company hereunder shall be limited to the maximum
\namount that is permissible under Applicable Law (whether federal or<\/p>\n
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81<\/p>\n
state and including, without limitation, the Federal Bankruptcy Code (as now or
\nhereinafter in effect)).<\/p>\n
ARTICLE XI<\/p>\n
DEFAULT AND REMEDIES<\/p>\n
SECTION 11.1 EVENTS OF DEFAULT.<\/p>\n
Each of the following shall constitute an Event of Default, whatever
\nthe reason for such event and whether it shall be voluntary or involuntary or be
\neffected by operation of law or pursuant to any judgment or order of any court
\nor any order, rule or regulation of any Governmental Authority or otherwise:<\/p>\n
(a) Default in Payment of Principal of Loans and Reimbursement
\nObligation. Any Borrower shall default in any payment of principal of any Loan,
\nNote or Reimbursement Obligation when and as due (whether at maturity, by reason
\nof acceleration or otherwise).<\/p>\n
(b) Other Payment Default. Any Borrower shall default in the payment
\nwhen and as due (whether at maturity, by reason of acceleration or otherwise) of
\nany interest, fees or other amounts owing on any Loan, Note or Reimbursement
\nObligation or the payment of any other Obligation (other than any Obligation
\nunder any Hedging Agreement), and such default shall continue unremedied for
\nthree (3) Business Days.<\/p>\n
(c) Misrepresentation. Any representation, warranty or statement made
\nor deemed to be made by any Credit Party or any of its Subsidiaries, if
\napplicable, under this Agreement, any Loan Document or any amendment hereto or
\nthereto or in any certificate delivered to the Administrative Agent or to any
\nLender pursuant hereto and thereto, shall at any time prove to have been
\nincorrect or misleading in any material respect when made or deemed made.<\/p>\n
(d) Default in Performance of Certain Covenants. Any of the Credit
\nParties shall default in the performance or observance of any covenant or
\nagreement contained in Sections 9.1, 9.2, 9.3 or 9.4 of this Agreement. Any of
\nthe Credit Parties shall default in the performance or observance of any
\ncovenant or agreement contained in Article IX, other than those contained in
\nSections 9.1, 9.2, 9.3 or 9.4, and such default shall continue for a period of
\nfifteen (15) days after the earlier of a Responsible Officer of a Credit Party
\nbecoming aware of such default or written notice thereof has been given to the
\nBorrowers by the Administrative Agent.<\/p>\n
(e) Default in Performance of Other Covenants and Conditions. Any of
\nthe Credit Parties or any Subsidiary thereof, if applicable, shall default in
\nthe performance or observance of any term, covenant, condition or agreement
\ncontained in this Agreement (other than as specifically provided for otherwise
\nin this Section 11.1) or any other Loan Document and such default shall continue
\nfor a period of thirty (30) days after the earlier of a Responsible Officer of a
\nCredit Party becoming aware of such default or written notice thereof has been
\ngiven to the Borrowers by the Administrative Agent.<\/p>\n
77<\/p>\n
82<\/p>\n
(f) Hedging Agreement. Any termination payments in an amount greater
\nthan $5,000,000 shall be due by any Credit Party under any Hedging Agreement and
\nsuch amount is not paid within thirty (30) Business Days of the due date
\nthereof.<\/p>\n
(g) Debt Cross-Default. Any of the Credit Parties or any of their
\nSubsidiaries shall (i) default in the payment of any Debt (other than Debt under
\nthis Agreement, the Notes or any Reimbursement Obligation) the aggregate
\noutstanding amount of which Debt is in excess of $10,000,000, beyond the period
\nof grace if any, provided in the instrument or agreement under which such Debt
\nwas created, or (ii) default in the observance or performance of any other
\nagreement or condition relating to any Debt (other than Debt under this
\nAgreement, the Notes or any Reimbursement Obligation), the aggregate outstanding
\namount of which Debt is in excess of $10,000,000 or contained in any instrument
\nor agreement evidencing, securing or relating thereto or any other event shall
\noccur or condition exist, the effect of which default or other event or
\ncondition is to cause, or to permit the holder or holders of such Debt (or a
\ntrustee or agent on behalf of such holder or holders) to cause, with the giving
\nof notice if required, any such Debt to become due prior to its stated maturity
\n(any such notice having been given and any applicable grace period having
\nexpired).<\/p>\n
(h) Change in Control. An event described in clause (i), (ii) or (iii)
\nbelow shall have occurred: (i) the membership of the Company’s Board of
\nDirectors changes by more than 50% during any 12-month period, or the number of
\nmembers on the Company’s Board of Directors either increases or decreases by
\nmore than 50% during any 12-month period, (ii) any person or group of persons
\n(within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as
\namended) shall obtain ownership or control in one or more series of transactions
\nof more than 33% of the common stock or 33% of the voting power of the Company
\nentitled to vote in the election of members of the board of directors of the
\nCompany or (iii) there shall have occurred under any indenture or other
\ninstrument evidencing any debt in excess of $10,000,000 any “change in control”
\n(as defined in such indenture or other evidence of debt) obligating the Company
\nto repurchase, redeem or repay all or any part of the debt or capital stock
\nprovided for therein (any such event, a “Change in Control”).<\/p>\n
(i) Voluntary Bankruptcy Proceeding. Any Credit Party or any Material
\nSubsidiary thereof shall (i) commence a voluntary case under the federal
\nbankruptcy laws (as now or hereafter in effect), (ii) file a petition seeking to
\ntake advantage of any other laws, domestic or foreign, relating to bankruptcy,
\ninsolvency, reorganization, winding up or composition for adjustment of debts,
\n(iii) consent to or fail to contest in a timely and appropriate manner any
\npetition filed against it in an involuntary case under such bankruptcy laws or
\nother laws, (iv) apply for or consent to, or fail to contest in a timely and
\nappropriate manner, the appointment of, or the taking of possession by, a
\nreceiver, custodian, trustee or liquidator of itself or of a substantial part of
\nits property, domestic or foreign, (v) admit in writing its inability to pay its
\ndebts as they become due, (vi) make a general assignment for the benefit of
\ncreditors, or (vii) take any corporate action for the purpose of authorizing any
\nof the foregoing.<\/p>\n
(j) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
\nbe commenced against any Credit Party or any Material Subsidiary thereof in any
\ncourt of<\/p>\n
78<\/p>\n
83<\/p>\n
competent jurisdiction seeking (i) relief under the federal bankruptcy laws (as
\nnow or hereafter in effect) or under any other laws, domestic or foreign,
\nrelating to bankruptcy, insolvency, reorganization, winding up or composition
\nfor adjustment of debts, or (ii) the appointment of a trustee, receiver,
\ncustodian, liquidator or the like for any Credit Party or any Material
\nSubsidiary thereof or for all or any substantial part of their respective
\nassets, domestic or foreign, and such case or proceeding shall continue without
\ndismissal or stay for a period of sixty (60) consecutive days, or an order
\ngranting the relief requested in such case or proceeding (including, but not
\nlimited to, an order for relief under such federal bankruptcy laws) shall be
\nentered.<\/p>\n
(k) Enforcement. A creditor or an encumbrance attaches or takes
\npossession of, or a distress, execution, sequestration or other process is
\nlevied or enforced upon or sued out against, any of the undertakings and assets
\nof any Credit Party or any Material Subsidiary thereof and (if capable of
\ndischarge) such possession is not terminated or such attachment or process is
\nnot satisfied, removed or discharge within seven (7) days<\/p>\n
(l) Similar Events. Any event occurs or any proceeding is taken with
\nrespect to any Credit Party or any Material Subsidiary in any jurisdiction to
\nwhich it is subject which has an effect equivalent or similar to any of the
\nevents set forth in Sections 11.1(i), (j) or (k).<\/p>\n
(m) Judgment. A judgment or order for the payment of money which causes
\nthe aggregate amount of all such judgments to exceed $5,000,000 in any Fiscal
\nYear shall be entered against any Credit Party or any Subsidiary thereof by any
\ncourt and such judgment or order shall continue without discharge or stay for a
\nperiod of thirty (30) days.<\/p>\n
(n) Guaranty. At any time after the execution and delivery thereof, the
\nguaranty given by the Company hereunder or any provision thereof shall cease to
\nbe in full force or effect as to the Company, or the Company or any Person
\nacting by or on behalf of the Company shall deny or disaffirm the Company’s
\nobligations under such guaranty or the Company shall default in the due
\nperformance or observance of any term, covenant or agreement on its part to be
\nperformed or observed pursuant to such guaranty.<\/p>\n
(o) ERISA. An event described in each clause (i), (ii) and (iii) below
\nshall have occurred: (i) any Pension Plan shall fail to satisfy the minimum
\nfunding standard required for any plan year or part thereof under Section 412 of
\nthe Code or Section 302 of ERISA or a waiver of such standard or extension of
\nany amortization period is sought or granted under Section 412 of the Code or
\nSection 303 or 304 of ERISA, a Reportable Event shall have occurred, a
\ncontributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Pension
\nPlan subject to Title IV of ERISA shall be subject to the advance reporting
\nrequirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
\n(b)(1) thereof) and an event described in subsection .62 , .63, .64, .65, .66,
\n.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
\nwith respect to such Pension Plan within the following thirty (30) days, any
\nPension Plan which is subject to Title IV of ERISA shall have had or is likely
\nto have a trustee appointed to administer such Pension Plan, any Pension Plan
\nwhich is subject to Title IV of ERISA is, shall have been or is likely to be
\nterminated or to be the subject of termination proceedings under ERISA, any
\nPension Plan shall have an Unfunded Current Liability, a contribution required
\nto be made with respect to a Pension Plan or a Foreign Pension Plan has not been
\ntimely made, the<\/p>\n
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84<\/p>\n
Credit Parties or any of their Subsidiaries or any ERISA Affiliate has incurred
\nor is likely to incur any liability to or on account of a Pension Plan under
\nSection 409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of
\nERISA or Section 401(a)(29), 4971 or 4975 of the Code or on account of a group
\nhealth plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the
\nCode) under Section 4980B of the Code, or the Credit Parties or any of their
\nSubsidiaries has incurred or is likely to incur liabilities pursuant to one or
\nmore employee welfare benefit plans (as defined in Section 3(1) of ERISA) that
\nprovide benefits to retired employees or other former employees (other than as
\nrequired by Section 601 of ERISA) or Pension Plans or Foreign Pension Plans;
\n(ii) there shall result from any such event or events the imposition of a lien,
\nthe granting of a security interest or a liability or a material risk of such a
\nlien being imposed, such security interest being granted or such liability being
\nincurred, and (iii) such lien, security interest or liability, individually,
\nand\/or in the aggregate, has had, or could reasonably be expected to have, a
\nMaterial Adverse Effect.<\/p>\n
SECTION 11.2 REMEDIES.<\/p>\n
Upon the occurrence of an Event of Default, with the consent of the
\nRequired Lenders, the Administrative Agent may, or upon the request of the
\nRequired Lenders, the Administrative Agent shall, by notice to the Credit
\nParties:<\/p>\n
(a) Acceleration: Termination of Facilities. Declare the principal of
\nand interest on the Loans, the Notes and the Reimbursement Obligations at the
\ntime outstanding, and all other amounts owed to the Lenders and to the
\nAdministrative Agent under this Agreement or any of the other Loan Documents
\n(other than any Hedging Agreement) (including, without limitation, all L\/C
\nObligations, whether or not the beneficiaries of the then outstanding Letters of
\nCredit shall have presented the documents required thereunder) and all other
\nObligations (other than Obligations owing under any Hedging Agreement), to be
\nforthwith due and payable, whereupon the same shall immediately become due and
\npayable without presentment, demand, protest or other notice of any kind, all of
\nwhich are expressly waived, anything in this Agreement or the other Loan
\nDocuments to the contrary notwithstanding, and terminate the Credit Facility and
\nany right of the Borrowers to request borrowings or Letters of Credit
\nthereunder; provided, that upon the occurrence of an Event of Default specified
\nin Section 11.1(i), (j), (k) or (1) with respect to the Credit Parties, the
\nCredit Facility shall be automatically terminated and all Obligations (other
\nthan obligations owing under any Hedging Agreement) shall automatically become
\ndue and payable.<\/p>\n
(b) Letters of Credit. With respect to all Letters of Credit with
\nrespect to which presentment for honor shall not have occurred at the time of an
\nacceleration pursuant to the preceding paragraph, require the Borrowers at such
\ntime to deposit or cause to be deposited in a cash collateral account opened by
\nthe Administrative Agent an amount equal to the aggregate then undrawn and
\nunexpired amount of such Letters of Credit. Amounts held in such cash collateral
\naccount shall be applied by the Administrative Agent to the payment of drafts
\ndrawn under such Letters of Credit, and the unused portion thereof after all
\nsuch Letters of Credit shall have expired or been fully drawn upon, if any,
\nshall be applied to repay the other Obligations. After all such Letters of
\nCredit shall have expired or been fully drawn upon, the Reimbursement<\/p>\n
80<\/p>\n
85<\/p>\n
Obligation shall have been satisfied and all other Obligations shall have been
\npaid in full, the balance, if any, in such cash collateral account shall be
\npromptly returned to the Borrowers.<\/p>\n
(c) Rights of Collection. Exercise on behalf of the Lenders all of its
\nother rights and remedies under this Agreement, the other Loan Documents and
\nApplicable Law, in order to satisfy all of the Obligations.<\/p>\n
SECTION 11.3 RIGHTS AND REMEDIES CUMULATIVE; NON-WAIVER; ETC.<\/p>\n
The enumeration of the rights and remedies of the Administrative Agent
\nand the Lenders set forth in this Agreement is not intended to be exhaustive and
\nthe exercise by the Administrative Agent and the Lenders of any right or remedy
\nshall not preclude the exercise of any other rights or remedies, all of which
\nshall be cumulative, and shall be in addition to any other right or remedy given
\nhereunder or under the Loan Documents or that may now or hereafter exist in law
\nor in equity or by suit or otherwise. No delay or failure to take action on the
\npart of the Administrative Agent or any Lender in exercising any right, power or
\nprivilege shall operate as a waiver thereof, nor shall any single or partial
\nexercise of any such right, power or privilege preclude other or further
\nexercise thereof or the exercise of any other right, power or privilege or shall
\nbe construed to be a waiver of any Event of Default. No course of dealing
\nbetween the Credit Parties, the Administrative Agent and the Lenders or their
\nrespective agents or employees shall be effective to change, modify or discharge
\nany provision of this Agreement or any of the other Loan Documents or to
\nconstitute a waiver of any Event of Default.<\/p>\n
ARTICLE XII<\/p>\n
THE ADMINISTRATIVE AGENT<\/p>\n
SECTION 12.1 APPOINTMENT.<\/p>\n
Each of the Lenders hereby irrevocably designates and appoints
\nNationsBank as Administrative Agent of such Lender under this Agreement and the
\nother Loan Documents for the term hereof and each such Lender irrevocably
\nauthorizes NationsBank as Administrative Agent for such Lender, to take such
\naction on its behalf under the provisions of this Agreement and the other Loan
\nDocuments and to exercise such powers and perform such duties as are expressly
\ndelegated to the Administrative Agent by the terms of this Agreement and such
\nother Loan Documents, together with such other powers as are reasonably
\nincidental thereto. Notwithstanding any provision to the contrary elsewhere in
\nthis Agreement or such other Loan Documents, the Administrative Agent shall not
\nhave any duties or responsibilities, except those expressly set forth herein and
\ntherein, or any fiduciary relationship with any Lender, and no implied
\ncovenants, functions, responsibilities, duties, obligations or liabilities shall
\nbe read into this Agreement or the other Loan Documents or otherwise exist
\nagainst the Administrative Agent. Any reference to the Administrative Agent in
\nthis Article XII shall be deemed to refer to the Administrative Agent solely in
\nits capacity as Administrative Agent and not in its capacity as a Lender.<\/p>\n
81<\/p>\n
86<\/p>\n
SECTION 12.2 DELEGATION OF DUTIES.<\/p>\n
The Administrative Agent may execute any of its respective duties under
\nthis Agreement and the other Loan Documents by or through agents or
\nattorneys-in-fact and shall be entitled to advice of counsel concerning all
\nmatters pertaining to such duties. The Administrative Agent shall not be
\nresponsible for the negligence or misconduct of any agents or attorneys-in-fact
\nselected by the Administrative Agent with reasonable care.<\/p>\n
SECTION 12.3 EXCULPATORY PROVISIONS.<\/p>\n
Neither the Administrative Agent nor any of its officers, directors,
\nemployees, agents, attorneys-in-fact, Subsidiaries or Affiliates shall be (a)
\nliable for any action lawfully taken or omitted to be taken by it or such Person
\nunder or in connection with this Agreement or the other Loan Documents (except
\nfor actions occasioned solely by its or such Person’s own gross negligence or
\nwillful misconduct), or (b) responsible in any manner to any of the Lenders for
\nany recitals, statements, representations or warranties made by any Credit Party
\nor any of its Subsidiaries or any officer thereof contained in this Agreement or
\nthe other Loan Documents or in any certificate, report, statement or other
\ndocument referred to or provided for in, or received by the Administrative Agent
\nunder or in connection with, this Agreement or the other Loan Documents or for
\nthe value, validity, effectiveness, genuineness, enforceability or sufficiency
\nof this Agreement or the other Loan Documents or for any failure of any Credit
\nParty or any of its Subsidiaries to perform its obligations hereunder or
\nthereunder. The Administrative Agent shall not be under any obligation to any
\nLender to ascertain or to inquire as to the observance or performance of any of
\nthe agreements contained in, or conditions of, this Agreement, or to inspect the
\nproperties, books or records of any Credit Party or any of its Subsidiaries.<\/p>\n
SECTION 12.4 RELIANCE BY THE ADMINISTRATIVE AGENT.<\/p>\n
The Administrative Agent shall be entitled to rely, and shall be fully
\nprotected in relying, upon any note, writing, resolution, notice, consent,
\ncertificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
\nmessage, statement, order or other document or conversation believed by it to be
\ngenuine and correct and to have been signed, sent or made by the proper Person
\nor Persons and upon advice and statements of legal counsel (including, without
\nlimitation, counsel to the Credit Parties), independent accountants and other
\nexperts selected by the Administrative Agent. The Administrative Agent may deem
\nand treat the payee of any Note as the owner thereof for all purposes unless
\nsuch Note shall have been transferred in accordance with Section 13.10 hereof.
\nThe Administrative Agent shall be fully justified in failing or refusing to take
\nany action under this Agreement and the other Loan Documents unless it shall
\nfirst receive such advice or concurrence of the Required Lenders (or, when
\nexpressly required hereby or by the relevant other Loan Document, all the
\nLenders) as it deems appropriate or it shall first be indemnified to its
\nsatisfaction by the Lenders against any and all liability and expense which may
\nbe incurred by it by reason of taking or continuing to take any such action
\nexcept for its own gross negligence or willful misconduct. The Administrative
\nAgent shall in all cases be fully protected in acting, or in refraining from
\nacting, under this Agreement and the Notes in accordance with a request of the
\nRequired Lenders (or, when expressly required hereby,<\/p>\n
82<\/p>\n
87<\/p>\n
all the Lenders), and such request and any action taken or failure to act
\npursuant thereto shall be binding upon all the Lenders and all future holders of
\nthe Notes.<\/p>\n
SECTION 12.5 NOTICE OF DEFAULT.<\/p>\n
The Administrative Agent shall not be deemed to have knowledge or
\nnotice of the occurrence of any Default or Event of Default hereunder unless it
\nhas received notice from a Lender or the Credit Parties referring to this
\nAgreement, describing such Default or Event of Default and stating that such
\nnotice is a “notice of default.” In the event that the Administrative Agent
\nreceives such a notice, it shall promptly give notice thereof to the Lenders.
\nThe Administrative Agent shall take such action with respect to such Default or
\nEvent of Default as shall be reasonably directed by the Required Lenders;
\nprovided that unless and until the Administrative Agent shall have received such
\ndirections, the Administrative Agent may (but shall not be obligated to) take
\nsuch action, or refrain from taking such action, with respect to such Default or
\nEvent of Default as it shall deem advisable in the best interests of the
\nLenders, except to the extent that other provisions of this Agreement expressly
\nrequire that any such action be taken or not be taken only with the consent and
\nauthorization or the request of the Lenders or Required Lenders, as applicable.<\/p>\n
SECTION 12.6 NON-RELIANCE ON THE ADMINISTRATIVE AGENT AND OTHER
\nLENDERS.<\/p>\n
Each Lender expressly acknowledges that neither the Administrative
\nAgent nor any of its respective officers, directors, employees, agents,
\nattorneys-in-fact, Subsidiaries or Affiliates has made any representations or
\nwarranties to it and that no act by the Administrative Agent hereinafter taken,
\nincluding any review of the affairs of the Credit Parties or any of their
\nrespective Subsidiaries, shall be deemed to constitute any representation or
\nwarranty by the Administrative Agent to any Lender. Each Lender represents to
\nthe Administrative Agent that it has, independently and without reliance upon
\nthe Administrative Agent or any other Lender, and based on such documents and
\ninformation as it has deemed appropriate, made its own appraisal of and
\ninvestigation into the business, operations, property, financial and other
\ncondition and creditworthiness of the Credit Parties and their respective
\nSubsidiaries and made its own decision to make its Loans and issue or
\nparticipate in Letters of Credit hereunder and enter into this Agreement. Each
\nLender also represents that it will, independently and without reliance upon the
\nAdministrative Agent or any other Lender, and based on such documents and
\ninformation as it shall deem appropriate at the time, continue to make its own
\ncredit analysis, appraisals and decisions in taking or not taking action under
\nthis Agreement and the other Loan Documents, and to make such investigation as
\nit deems necessary to inform itself as to the business, operations, property,
\nfinancial and other condition and creditworthiness of the Credit Parties and
\ntheir respective Subsidiaries. Except for notices, reports and other documents
\nexpressly required to be furnished to the Lenders by the Administrative Agent
\nhereunder or by the other Loan Documents, the Administrative Agent shall not
\nhave any duty or responsibility to provide any Lender with any credit or other
\ninformation concerning the business, operations, property, financial and other
\ncondition or creditworthiness of any Credit Party or any of its Subsidiaries
\nwhich may come into the possession of the Administrative Agent or any of its
\nrespective officers, directors, employees, agents, attorneys-in-fact,
\nSubsidiaries or Affiliates.<\/p>\n
83<\/p>\n
88<\/p>\n
SECTION 12.7 INDEMNIFICATION.<\/p>\n
The Lenders agree to indemnify the Administrative Agent in its capacity
\nas such and (to the extent not reimbursed by the Credit Parties and without
\nlimiting the obligation of the Credit Parties to do so), ratably according to
\nthe respective amounts of their Aggregate Revolving Credit Commitment
\nPercentages from and against any and all liabilities, obligations, losses,
\ndamages, penalties, actions, judgments, suits, costs, expenses or disbursements
\nof any kind whatsoever which may at any time (including, without limitation, at
\nany time following the payment of the Notes or any Reimbursement Obligation) be
\nimposed on, incurred by or asserted against the Administrative Agent in any way
\nrelating to or arising out of this Agreement or the other Loan Documents, or any
\ndocuments contemplated by or referred to herein or therein or the transactions
\ncontemplated hereby or thereby or any action taken or omitted by the
\nAdministrative Agent under or in connection with any of the foregoing; provided
\nthat no Lender shall be liable for the payment of any portion of such
\nliabilities, obligations, losses, damages, penalties, actions, judgments, suits,
\ncosts, expenses or disbursements to the extent they result from the
\nAdministrative Agent’s bad faith, gross negligence or willful misconduct. The
\nagreements in this Section 12.7 shall survive the payment of the Notes, any
\nReimbursement Obligation and all other amounts payable hereunder and the
\ntermination of this Agreement.<\/p>\n
SECTION 12.8 THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.<\/p>\n
The Administrative Agent and its respective Subsidiaries and Affiliates
\nmay make loans to, accept deposits from and generally engage in any kind of
\nbusiness with the Credit Parties as though the Administrative Agent were not an
\nAdministrative Agent hereunder. With respect to any Loans made or renewed by it
\nand any Note issued to it and with respect to any Letter of Credit issued by it
\nor participated in by it, the Administrative Agent shall have the same rights
\nand powers under this Agreement and the other Loan Documents as any Lender and
\nmay exercise the same as though it were not an Administrative Agent, and the
\nterms “Lender” and “Lenders” shall include the Administrative Agent in its
\nindividual capacity.<\/p>\n
SECTION 12.9 RESIGNATION OF THE ADMINISTRATIVE AGENT; SUCCESSOR
\nADMINISTRATIVE AGENT.<\/p>\n
Subject to the appointment and acceptance of a successor as provided
\nbelow, the Administrative Agent may resign at any time by giving notice thereof
\nto the Lenders and the Credit Parties. Upon any such resignation, the Required
\nLenders shall have the right, subject to the approval of the Credit Parties (so
\nlong as no Default or Event of Default has occurred and is continuing), to
\nappoint a successor Administrative Agent, which successor shall have minimum
\ncapital and surplus of at least $500,000,000. If no successor Administrative
\nAgent shall have been so appointed by the Required Lenders, been approved (so
\nlong as no Default or Event of Default has occurred and is continuing) by the
\nCredit Parties or have accepted such appointment within thirty (30) days after
\nthe Administrative Agent’s giving of notice of resignation, then the
\nAdministrative Agent may, on behalf of the Lenders, appoint a successor
\nAdministrative Agent reasonably acceptable to the Credit Parties (so long as no
\nDefault or Event of Default has occurred and is continuing), which successor
\nshall have minimum capital and surplus of at least $500,000,000. Upon the
\nacceptance of any appointment as Administrative Agent hereunder by a<\/p>\n
84<\/p>\n
89<\/p>\n
successor Administrative Agent, such successor Administrative Agent shall
\nthereupon succeed to and become vested with all rights, powers, privileges and
\nduties of the retiring Administrative Agent, and the retiring Administrative
\nAgent shall be discharged from its duties and obligations hereunder. After any
\nretiring Administrative Agent’s resignation hereunder as Administrative Agent,
\nthe provisions of this Section 12.9 shall continue in effect for its benefit in
\nrespect of any actions taken or omitted to be taken by it while it was acting as
\nAdministrative Agent.<\/p>\n
SECTION 12.10 CO-AGENTS.<\/p>\n
No Co-Agent, in its capacity as a co-agent hereunder, shall have any
\nduty or responsibility under this Agreement or any other Loan Document.<\/p>\n
ARTICLE XIII<\/p>\n
MISCELLANEOUS<\/p>\n
SECTION 13.1 NOTICES.<\/p>\n
(a) Method of Communication. Except as otherwise provided in this
\nAgreement, all notices and communications hereunder shall be in writing, or by
\ntelephone subsequently confirmed in writing. Any notice shall be effective if
\ndelivered by hand delivery or sent via telecopy, recognized overnight courier
\nservice or certified mail, return receipt requested, and shall be presumed to be
\nreceived by a party hereto (i) on the date of delivery if delivered by hand or
\nsent by telecopy, (ii) on the next Business Day if sent by recognized overnight
\ncourier service and (iii) on the third Business Day following the date sent by
\ncertified mail, return receipt requested. A telephonic notice to the
\nAdministrative Agent as understood by the Administrative Agent will be deemed to
\nbe the controlling and proper notice in the event of a discrepancy with or
\nfailure to receive a confirming written notice.<\/p>\n
(b) Addresses for Notices. Notices to any party shall be sent to it at
\nthe following addresses, or any other address as to which all the other parties
\nare notified in writing.<\/p>\n
If to the Company or any Designated Borrower:<\/p>\n
Herman Miller, Inc.
\nMS 0110
\n855 East Main Avenue
\nP.O. Box 302
\nZeeland, MI 49464-0302
\nAttention: Robert F. Dentzman Jr.
\nTelephone No.: (616) 654-5044
\nTelecopy No.: (616) 654-7221<\/p>\n
If to NationsBank as Administrative Agent:<\/p>\n
85<\/p>\n
90<\/p>\n
NationsBank, N.A.,
\nas Administrative Agent
\n101 North Tryon Street
\nIndependence Center, 15th Floor
\nNC1-001-15-04
\nCharlotte, North Carolina 28255
\nAttention: Agency Services
\nTelephone No.: (704) 386-1316
\nTelecopy No.: (704) 386-9923<\/p>\n
with a copy to:<\/p>\n
Bank of America
\nBusiness Services Group
\n100 North Tryon Street
\nBank of America Center, 17th Floor
\nCharlotte, North Carolina 28255
\nAttention: Jack Williams
\nTelephone No.: (704) 388-3234
\nTelecopy No.: (704) 388-0960<\/p>\n
If to any Lender:<\/p>\n
To the Address set forth on Schedule 13.1 hereto<\/p>\n
(c) Administrative Agent’s Office. The Administrative Agent hereby
\ndesignates its office located at the address set forth above, or any subsequent
\noffice which shall have been specified for such purpose by written notice to the
\nCompany and the Lenders, as the Administrative Agent’s Office referred to
\nherein, to which payments due are to be made and at which Loans will be
\ndisbursed.<\/p>\n
SECTION 13.2 EXPENSES, INDEMNITY.<\/p>\n
The Borrowers agree to (a) pay all reasonable out-of-pocket expenses of
\nthe Administrative Agent in connection with (i) the preparation, execution and
\ndelivery of this Agreement and each other Loan Document, whenever the same shall
\nbe executed and delivered, including without limitation the reasonable
\nout-of-pocket syndication and due diligence expenses and reasonable fees and
\ndisbursements of counsel for the Administrative Agent and (ii) the preparation,
\nexecution and delivery of any waiver, amendment or consent by the Administrative
\nAgent, the Arranger or the Lenders relating to this Agreement or any other Loan
\nDocument, including without limitation reasonable fees and disbursements of
\ncounsel for the Administrative Agent, (b) pay all reasonable out-of-pocket
\nexpenses of the Administrative Agent actually incurred in connection with the
\nadministration of the Credit Facility, (c) pay all reasonable out-of-pocket
\nexpenses of the Administrative Agent, the Arranger and each Lender actually
\nincurred in connection with the enforcement of any rights and remedies of the
\nAdministrative Agent, the Arranger and the Lenders under the Credit Facility,
\nincluding, to the extent reasonable under the<\/p>\n
86<\/p>\n
91<\/p>\n
circumstances, consulting with accountants, attorneys and other Persons
\nconcerning the nature, scope or value of any right or remedy of the
\nAdministrative Agent, the Arranger or any Lender hereunder or under any other
\nLoan Document or any factual matters in connection therewith, which expenses
\nshall include without limitation the reasonable fees and disbursements of such
\nPersons, and (d) defend, indemnify and hold harmless the Administrative Agent,
\nthe Arranger and the Lenders, and their respective parents, Subsidiaries,
\nAffiliates, employees, agents, officers and directors, from and against any
\nlosses, penalties, fines, liabilities, settlements, damages, costs and expenses,
\nsuffered by any such Person in connection with any claim, investigation,
\nlitigation or other proceeding (whether or not the Administrative Agent, the
\nArranger or any Lender is a party thereto) and the prosecution and defense
\nthereof, arising out of or in any way connected with this Agreement, the Credit
\nFacility, any other Loan Document, the Loans or the Notes or as a result of the
\nbreach of any of the Credit Parties’ obligations hereunder, including without
\nlimitation reasonable attorney’s fees (including the allocated cost of internal
\ncounsel), consultant’s fees and settlement costs (but excluding any losses,
\npenalties, fines liabilities, settlements, damages, costs and expenses to the
\nextent incurred by reason of the gross negligence or willful misconduct of the
\nPerson to be indemnified (as finally determined by a court of competent
\njurisdiction)).<\/p>\n
SECTION 13.3 SET-OFF.<\/p>\n
In addition to any rights now or hereafter granted under Applicable Law
\nand not by way of limitation of any such rights, upon and after the occurrence
\nof any Event of Default and during the continuance thereof, the Lenders and any
\nassignee or participant of a Lender in accordance with Section 13.10 are hereby
\nauthorized by the Credit Parties at any time or from time to time, without
\nnotice to the Credit Parties or to any other Person, any such notice being
\nhereby expressly waived, to set off and to appropriate and to apply (including,
\nwithout limitation, the right to combine currencies) any and all deposits
\n(general or special, time or demand, including, but not limited to, indebtedness
\nevidenced by certificates of deposit, whether matured or unmatured) and any
\nother indebtedness at any time held or owing by the Lenders, or any such
\nassignee or participant to or for the credit or the accounts of the respective
\nBorrowers against and on account of the Obligations irrespective of whether or
\nnot (a) the Lenders shall have made any demand under this Agreement or any of
\nthe other Loan Documents or (b) the Administrative Agent shall have declared any
\nor all of the Obligations to be due and payable as permitted by Section 11.2 and
\nalthough such Obligations shall be contingent or unmatured.<\/p>\n
SECTION 13.4 GOVERNING LAW.<\/p>\n
This Agreement, the Notes and the other Loan Documents, unless
\notherwise expressly set forth therein, shall be governed by, construed and
\nenforced in accordance with the laws of the State of Michigan, without giving
\neffect to the conflict of law principles thereof.<\/p>\n
SECTION 13.5 CONSENT TO JURISDICTION.<\/p>\n
Each of the parties hereto hereby irrevocably consents to the personal
\njurisdiction of the state and federal courts located in Michigan, in any action,
\nclaim or other proceeding arising out of any dispute in connection with this
\nAgreement, the Notes and the other Loan Documents, any<\/p>\n
87<\/p>\n
92<\/p>\n
rights or obligations hereunder or thereunder, or the performance of such rights
\nand obligations. Each of the parties hereto hereby irrevocably consents to the
\nservice of a summons and complaint and other process in any action, claim or
\nproceeding brought by any other party hereto in connection with this Agreement,
\nthe Notes or the other Loan Documents, any rights or obligations hereunder or
\nthereunder, or the performance of such rights and obligations, on behalf of
\nitself or its property, in the manner specified in Section 13.1. Each Designated
\nBorrower hereby appoints the Company as its agent in the United States for
\nservice of process. Nothing in this Section 13.5 shall affect the right of any
\nof the parties hereto to serve legal process in any other manner permitted by
\nApplicable Law or affect the right of any of the parties hereto to bring any
\naction or proceeding against any other party hereto or its properties in the
\ncourts of any other jurisdictions.<\/p>\n
SECTION 13.6 WAIVER OF JURY TRIAL.<\/p>\n
THE ADMINISTRATIVE AGENT, EACH LENDER AND EACH CREDIT PARTY HEREBY
\nWAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THEIR RESPECTIVE RIGHTS TO A
\nJURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER PROCEEDING ARISING OUT OF
\nANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR THE OTHER LOAN
\nDOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER, OR THE PERFORMANCE
\nOF SUCH RIGHTS AND OBLIGATIONS.<\/p>\n
SECTION 13.7 REVERSAL OF PAYMENTS.<\/p>\n
To the extent any Credit Party makes a payment or payments to the
\nAdministrative Agent for the ratable benefit of the Lenders or the
\nAdministrative Agent receives any payment or proceeds of the collateral which
\npayments or proceeds or any part thereof are subsequently invalidated, declared
\nto be fraudulent or preferential, set aside and\/or required to be repaid to a
\ntrustee, receiver or any other party under any bankruptcy law, state or federal
\nlaw, common law or equitable cause, then, to the extent of such payment or
\nproceeds repaid, the Obligations or part thereof intended to be satisfied shall
\nbe revived and continued in full force and effect as if such payment or proceeds
\nhad not been received by the Administrative Agent.<\/p>\n
SECTION 13.8 JUDGMENT CURRENCY.<\/p>\n
If, for the purposes of obtaining judgment in any court, it is
\nnecessary to convert a sum due hereunder or under any other Loan Document in one
\ncurrency into another currency, the rate of exchange used shall be that at which
\nin accordance with normal banking procedures the Administrative Agent could
\npurchase the first currency with such other currency on the Business Day
\npreceding that on which final judgment is given. The obligation of any Credit
\nParty in respect of any such sum due from it to the Administrative Agent or any
\nLender hereunder or under the other Loan Documents shall, notwithstanding any
\njudgment in a currency (the “Judgment Currency”) other than that in which such
\nsum is denominated in accordance with the applicable provisions of this
\nAgreement (the “Agreement Currency”), be discharged only to the extent that on
\nthe Business Day following receipt by the Administrative Agent or such Lender of
\nany sum adjudged to be so due in the Judgment Currency, the Administrative Agent
\nor such<\/p>\n
88<\/p>\n
93<\/p>\n
Lender may in accordance with normal banking procedures purchase the Agreement
\nCurrency with the Judgment Currency. If the amount of the Agreement Currency so
\npurchased is less than the sum originally due to the Administrative Agent or
\nsuch Lender in the Agreement Currency, the Borrowers, as a separate obligation
\nand notwithstanding any such judgment, to indemnify the Administrative Agent or
\nsuch Lender or the Person to whom such obligation was owing against such loss.
\nIf the amount of the Agreement Currency so purchased is greater than the sum
\noriginally due to the Administrative Agent or such Lender in such currency, the
\nAdministrative Agent or such Lender agrees to return the amount of any excess to
\nthe Borrowers (or to any other Person who may be entitled thereto under
\napplicable law).<\/p>\n
SECTION 13.9 ACCOUNTING MATTERS.<\/p>\n
Except as otherwise expressly provided herein, all terms of an
\naccounting or financial nature shall be construed in accordance with GAAP, as in
\neffect from time to time, provided that, if the Credit Parties notify the
\nAdministrative Agent that the Credit Parties request an amendment to any
\nprovision hereof to eliminate the effect of any change occurring after the date
\nhereof in GAAP or in the application thereof on the operation of such provision
\n(or if the Administrative Agent notifies the Credit Parties that the Required
\nLenders request an amendment to any provision hereof for such purpose),
\nregardless of whether any such notice is given before or after such change in
\nGAAP or in the application there of, then such provision shall be interpreted on
\nthe basis of GAAP as in effect and applied immediately before such change shall
\nhave become effective until such notice shall have been withdrawn or such
\nprovision amended in accordance therewith.<\/p>\n
SECTION 13.10 SUCCESSORS AND ASSIGNS; PARTICIPATIONS;
\nCONFIDENTIALITY.<\/p>\n
(a) Benefit of Agreement. This Agreement shall be binding upon and
\ninure to the benefit of the Credit Parties, the Administrative Agent, the
\nArranger and the Lenders, all future holders of the Notes, and their respective
\nsuccessors and permitted assigns, except that the Credit Parties shall not
\nassign or transfer any of their rights or obligations under this Agreement
\nwithout the prior written consent of each Lender other than pursuant to Section
\n9.3.<\/p>\n
(b) Assignment by Lenders. Each Lender may, with the consent of the
\nBorrowers (so long as no Default or Event of Default has occurred and is
\ncontinuing or, if a Default or Event of Default has occurred and is continuing,
\nwithout the consent of the Borrowers) and the consent of the Administrative
\nAgent, which consents shall not be unreasonably withheld, assign to one or more
\nEligible Assignees all or a portion of its interests, rights and obligations
\nunder this Agreement (including, without limitation, all or a portion of the
\nExtensions of Credit at the time owing to it and the Notes held by it) provided
\nthat:<\/p>\n
(i) each such assignment shall be of a constant, and not a varying,
\npercentage of all the assigning Lender’s Aggregate Revolving Credit
\nCommitment and all other rights and obligations under this Agreement;<\/p>\n
89<\/p>\n
94<\/p>\n
(ii) if less than all of the assigning Lender’s Aggregate
\nRevolving Credit Commitment or Loans is to be assigned, the Aggregate
\nRevolving Credit Commitment or Loans so assigned shall not be less than
\n$10,000,000;<\/p>\n
(iii) the parties to each such assignment shall execute and deliver
\nto the Administrative Agent, for its acceptance and recording in the
\nRegister, an Assignment and Acceptance in the form of Exhibit H
\nattached hereto (an “Assignment and Acceptance”);<\/p>\n
(iv) such assignment shall not, without the consent of the Company,
\non behalf of itself and the other Credit Parties, require any Borrower,
\nor any Credit Party, to file a registration statement with the
\nSecurities and Exchange Commission or apply to or qualify the Loans or
\nthe Notes under the blue sky laws of any state;<\/p>\n
(v) the assigning Lender shall pay to the Administrative Agent an
\nassignment fee of $3,500 upon the execution by such Lender of the
\nAssignment and Acceptance (including, but not limited to, an assignment
\nby a Lender to another Lender); provided that no such fee shall be
\npayable upon any assignment by a Lender to an Affiliate thereof; and<\/p>\n
(vi) no consents will be required for assignments where the
\nEligible Assignee is an Affiliate of the assigning Lender.<\/p>\n
Upon such execution, delivery, acceptance and recording, from and after the
\neffective date specified in each Assignment and Acceptance, which effective date
\nshall be at least ten (10) Business Days after the execution thereof, (A) the
\nassignee thereunder shall be a party hereto and, to the extent of the interest
\nassigned in such Assignment and Acceptance, have the rights and obligations of a
\nLender hereby and (B) the Lender thereunder shall, to the extent of the interest
\nassigned in such assignment, be released from its obligations under this
\nAgreement.<\/p>\n
(c) Rights and Duties Upon Assignment. By executing and delivering an
\nAssignment and Acceptance, the assigning Lender thereunder and the assignee
\nthereunder confirm to and agree with each other and the other parties hereto as
\nset forth in such Assignment and Acceptance.<\/p>\n
(d) Register. The Administrative Agent shall maintain a copy of each
\nAssignment and Acceptance delivered to it and a register for the recordation of
\nthe names and addresses of the Lenders and the amount of the Extensions of
\nCredit with respect to each Lender from time to time (the “Register”). No
\nassignment shall be effective for purposes of this Agreement unless it has been
\nrecorded in the Register as provided in this paragraph. The entries in the
\nRegister shall be conclusive, in the absence of manifest error, and the
\nBorrowers, the Administrative Agent, the Arranger and the Lenders may treat each
\nperson whose name is recorded in the Register as a Lender hereunder for all
\npurposes of this Agreement. The Register shall be available for inspection by
\nthe Borrowers or Lenders at any reasonable time and from time to time upon
\nreasonable prior notice.<\/p>\n
90
\n95
\n(e) Issuance of New Notes, Etc. Upon its receipt of an Assignment and
\nAcceptance executed by an assigning Lender and an Eligible Assignee, together
\nwith any Note or Notes of such assigning Lender if such Lender is assigning all
\nof its interests hereunder, and any required written consent to such assignment,
\nthe Administrative Agent shall, if such Assignment and Acceptance has been
\ncompleted and is substantially in the form of Exhibit H:<\/p>\n
(i) accept such Assignment and Acceptance;<\/p>\n
(ii) record the information contained therein in the Register;<\/p>\n
(iii) give prompt notice thereof to the Lenders and the
\nBorrowers, on behalf of itself and the other Credit Parties; and<\/p>\n
(iv) promptly deliver a copy of such Assignment and Acceptance
\nto the Borrower.<\/p>\n
Within ten (10) Business Days after receipt of notice, each Borrower shall
\nexecute and deliver to the Administrative Agent, in exchange for the surrendered
\nNote or Notes (if required pursuant to this Section), a new Note to the order of
\nsuch Eligible Assignee (if it is not already a Lender). Such new Note or Notes
\nshall be dated the effective date of such Assignment and Acceptance and shall
\notherwise be in substantially the form of the original Note or Notes delivered
\nto the assigning Lender. Each surrendered Note or Notes shall be canceled and
\nreturned to the Borrower which made such Note.<\/p>\n
(f) Participations. Each Lender may sell participations to one or more
\nbanks or other entities in all or a portion of its rights and\/or obligations
\nunder this Agreement (including, without limitation, all or a portion of its
\nExtensions of Credit and the Notes held by it); provided that:<\/p>\n
(i) each such participation shall be in an amount not less
\nthan $10,000,000;<\/p>\n
(ii) such Lender’s obligations under this Agreement (including,
\nwithout limitation, its Aggregate Revolving Credit Commitment) shall remain
\nunchanged;<\/p>\n
(iii) such Lender shall remain solely responsible to the other
\nparties hereto for the performance of such obligations;<\/p>\n
(iv) the Credit Parties, the Administrative Agent, the Arranger
\nand the other Lenders shall continue to deal solely and directly with such
\nLender in connection with such Lender’s rights and obligations under this
\nAgreement;<\/p>\n
(v) such Lender shall not permit such participant the right to
\napprove any waivers, amendments or other modifications to this Agreement or any
\nother Loan Document other than waivers, amendments or modifications which would
\nreduce the principal of or the interest rate on any Loan or Reimbursement
\nObligation, extend the term or increase the amount of the Aggregate Revolving
\nCredit Commitment, reduce the<\/p>\n
91
\n96<\/p>\n
amount of any fees to which such participant is entitled, extend any scheduled
\npayment date for principal, interest or fees of any Loan, or release the Company
\nfrom its guaranty hereunder, except as expressly contemplated hereby or thereby;
\nand<\/p>\n
(vi) any such disposition shall not, without the consent of the
\nCompany, on behalf of itself and the other Credit Parties, require the Borrowers
\nor any other Credit Party, to (A) file a registration statement with the
\nSecurities and Exchange Commission or apply to or qualify the Revolving Credit
\nLoans or the Revolving Credit Notes under the blue sky law of any state or (B)
\nhave additional compensation requirements pursuant to Sections 4.8, 4.10 or
\n4.11.<\/p>\n
(g) Disclosure of Information; Confidentiality. Each of the
\nAdministrative Agent, the Issuing Lender and the Lenders agrees to maintain the
\nconfidentiality of the Information (as defined below), except that Information
\nmay be disclosed (a) to its Affiliates, directors, officers, employees and
\nagents, including accountants, legal counsel and other advisors (it being
\nunderstood that the Persons to whom such disclosure is made will be informed of
\nthe confidential nature of such Information and instructed to keep such
\nInformation confidential), (b) to the extent requested by any regulatory
\nauthority, (c) to the extent required by applicable laws or regulations or by
\nany subpoena or similar legal process, (d) to any other party to this Agreement,
\n(e) in connection with the exercise of any remedies hereunder or any suit,
\naction or proceeding relating to this Agreement or the enforcement of rights
\nhereunder, (f) subject to an agreement containing provisions substantially the
\nsame as those of this Section, to any assignee of or participant in, or any
\nprospective assignee of or participant in, any of its rights or obligations
\nunder this Agreement, (g) with the prior written consent of the Credit Parties,
\n(h) to the extent such Information (A) becomes publicly available other than as
\na result of a breach of this Section by the disclosing party or (B) becomes
\navailable to the Administrative Agent, the Issuing Lender or any Lender on a
\nnonconfidential basis from a source other than the Credit Parties or (i) to Gold
\nSheets and other similar bank trade publications, such information to consist of
\ndeal terms and other information (customarily found in such publications) upon
\nthe Credit Parties’ prior review and approval, which shall not be unreasonably
\nwithheld or delayed. For the purposes of this Section, “Information” means all
\ninformation received from the Credit Parties or any of their Subsidiaries
\nrelating to the Credit Parties or their business, other than any such
\ninformation that is available to the Administrative Agent, the Issuing Lender or
\nany Lender on a nonconfidential basis prior to disclosure by the Credit Parties;
\nprovided that, in the case of information received from the Credit Parties after
\nthe Closing Date (other than certificates or other information specifically
\nrequired by the terms of this Agreement), such information is clearly identified
\nat the time of delivery as confidential. Any Person required to maintain the
\nconfidentiality of Information as provided in this Section shall be considered
\nto have complied with its obligation to do so if such Person has exercised the
\nsame degree of care to maintain the confidentiality of such Information as such
\nPerson would accord to its own confidential information.<\/p>\n
(h) Certain Pledges or Assignments. Nothing herein shall prohibit any
\nLender from pledging or assigning any Note to any Federal Reserve Bank in
\naccordance with Applicable Law.<\/p>\n
92<\/p>\n
97<\/p>\n
SECTION 13.11 AMENDMENTS, WAIVERS AND CONSENTS.<\/p>\n
Except as set forth below, any term, covenant, agreement or condition
\nof this Agreement or any of the other Loan Documents may be amended or waived by
\nthe Lenders and any consent may be given by the Lenders, if, but only if, such
\namendment, waiver or consent is in writing signed by the Required Lenders (or by
\nthe Administrative Agent with the consent of the Required Lenders) and delivered
\nto the Administrative Agent and, in the case of an amendment, signed by the
\nCredit Parties; provided, that no amendment, waiver or consent shall, without
\nthe consent of each Lender affected thereby, (a) increase the amount or extend
\nthe time of the obligation of the Lenders to make Loans or issue or participate
\nin Letters of Credit (except as expressly contemplated by Section 2.7 or Section
\n2.8), (b) extend the originally scheduled time or times of payment of the
\nprincipal of any Loan or Reimbursement Obligation or the time or times of
\npayment of interest or fees on any Loan or Reimbursement Obligation, (c) reduce
\nthe rate of interest or fees payable on any Loan or Reimbursement Obligation,
\n(d) reduce the principal amount of any Loan or Reimbursement Obligation, (e)
\npermit any subordination of the principal or interest on any Loan or
\nReimbursement Obligation, (f) permit any assignment (other than as specifically
\npermitted or contemplated in this Agreement) of any of the Credit Parties’
\nrights and obligations hereunder, (g) release the Company from its guaranty
\nhereunder or (h) amend the provisions of this Section 13.11 or the definition of
\nRequired Lenders. In addition, no amendment, waiver or consent to the provisions
\nof (i) Article XII shall be made without the written consent of the
\nAdministrative Agent and (ii) Article III shall be made without the written
\nconsent of each Issuing Lender.<\/p>\n
Notwithstanding the fact that the consent of all the Lenders is
\nrequired in certain circumstances as set forth above, (x) each Lender is
\nentitled to vote as such Lender sees fit on any bankruptcy reorganization plan
\nthat affects the Loans, and each Lender acknowledges that the provisions of
\nSection 1126(c) of the Federal Bankruptcy Code (as now or hereafter in effect)
\nsupersedes the unanimous consent provisions set forth herein and (y) the
\nRequired Lenders may consent to allow a Credit Party to use cash collateral in
\nthe context of a bankruptcy or insolvency proceeding.<\/p>\n
SECTION 13.12 PERFORMANCE OF DUTIES.<\/p>\n
The Credit Parties’ obligations under this Agreement and each of the
\nLoan Documents shall be performed by the Credit Parties at their sole cost and
\nexpense.<\/p>\n
SECTION 13.13 ALL POWERS COUPLED WITH INTEREST.<\/p>\n
All powers of attorney and other authorizations granted to the Lenders,
\nthe Administrative Agent and any Persons designated by the Administrative Agent
\nor any Lender pursuant to any provisions of this Agreement or any of the other
\nLoan Documents shall be deemed coupled with an interest and shall be irrevocable
\nso long as any of the Obligations remain unpaid or unsatisfied or the Credit
\nFacility has not been terminated.<\/p>\n
93<\/p>\n
98<\/p>\n
SECTION 13.14 SEVERAL OBLIGATIONS OF THE BORROWERS.<\/p>\n
The obligations of the Borrowers, as Borrowers, are several and not
\njoint obligations of each of the Borrowers.<\/p>\n
SECTION 13.15 SUBORDINATION OF COMPANY’S CLAIMS AGAINST THE
\nDESIGNATED BORROWERS.<\/p>\n
The Credit Parties hereby agree that any claims of the Company against
\na Designated Borrower or any rights the Company has to be indemnified by a
\nDesignated Borrower shall be subordinate in right of payment to the payment and
\nsatisfaction in full of the Obligations to the Administrative Agent and the
\nLenders under this Agreement and the other Loan Documents.<\/p>\n
SECTION 13.16 SURVIVAL OF INDEMNITIES.<\/p>\n
Notwithstanding any termination of this Agreement, the indemnities to
\nwhich the Administrative Agent, the Arranger and the Lenders are entitled under
\nthe provisions of this Article XIII and any other provision of this Agreement
\nand the Loan Documents shall continue in full force and effect and shall protect
\nthe Administrative Agent, the Arranger and the Lenders against events arising
\nafter such termination as well as before, including after the Borrowers’
\nacceptance of the Lenders’ commitments for the Credit Facility, notwithstanding
\nany failure of such facility to close.<\/p>\n
SECTION 13.17 TITLES AND CAPTIONS.<\/p>\n
Titles and captions of Articles, Sections and subsections in this
\nAgreement are for convenience only, and neither limit nor amplify the provisions
\nof this Agreement.<\/p>\n
SECTION 13.18 SEVERABILITY OF PROVISIONS.<\/p>\n
Any provision of this Agreement or any other Loan Document which is
\nprohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
\nbe ineffective only to the extent of such prohibition or unenforceability
\nwithout invalidating the remainder of such provision or the remaining provisions
\nhereof or thereof or affecting the validity or enforceability of such provision
\nin any other jurisdiction.<\/p>\n
SECTION 13.19 COUNTERPARTS.<\/p>\n
This Agreement may be executed in any number of counterparts and by
\ndifferent parties hereto in separate counterparts, each of which when so
\nexecuted shall be deemed to be an original and shall be binding upon all
\nparties, their successors and assigns, and all of which taken together shall
\nconstitute one and the same agreement. Delivery of any executed counterpart of a
\nsignature page of this Agreement by telecopy shall be effective as delivery of a
\nmanually executed counterpart of this Agreement.<\/p>\n
94<\/p>\n
99<\/p>\n
SECTION 13.20 TERM OF AGREEMENT.<\/p>\n
This Agreement shall remain in effect from the Closing Date through and
\nincluding the date upon which all Obligations (other than obligations owing by
\nany Credit Party to any Lender or Affiliate of a Lender or the Administrative
\nAgent under any Hedging Agreement) shall have been indefeasibly and irrevocably
\npaid and satisfied in full. No termination of this Agreement shall affect the
\nrights and obligations of the parties hereto arising prior to such termination.<\/p>\n
SECTION 13.21 INCONSISTENCIES WITH OTHER DOCUMENTS; INDEPENDENT
\nEFFECT OF COVENANTS.<\/p>\n
(a) In the event there is a conflict or inconsistency between this
\nAgreement and any other Loan Document, the terms of this Agreement shall
\ncontrol, provided, that in the event there is a conflict or inconsistency
\nbetween this Agreement and the letter agreements between the Administrative
\nAgent and the Company dated as of March 10, 1999 (the “Letter Agreements”),
\nwhich conflict or inconsistency relates solely to a matter affecting (i) the
\nAdministrative Agent and\/or its Affiliates on one hand and (ii) the Company
\nand\/or the Borrowers on the other, the Letter Agreements shall control.<\/p>\n
(b) The Borrowers expressly acknowledge and agree that each covenant
\ncontained in Article VIII and Article IX hereof shall be given independent
\neffect.<\/p>\n
[Signature pages to follow]<\/p>\n
95<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6846,7767,9279],"corporate_contracts_industries":[9415,9399],"corporate_contracts_types":[9561,9560],"class_list":["post-40970","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bank-of-america-corp","corporate_contracts_companies-herman-miller-inc","corporate_contracts_companies-wachovia-corp","corporate_contracts_industries-financial__banks","corporate_contracts_industries-consumer__furniture","corporate_contracts_types-finance__credit","corporate_contracts_types-finance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40970","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40970"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40970"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40970"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40970"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}