CREDIT AGREEMENT
among
HERMAN MILLER, INC.
as a Borrower and as Guarantor
CERTAIN OF ITS FOREIGN SUBSIDIARIES
as Designated Borrowers
VARIOUS LENDERS
NATIONSBANK, N.A.
as Administrative Agent
NBD BANK
as Syndication Agent
and
FIRST UNION NATIONAL BANK
THE HUNTINGTON NATIONAL BANK
and
WACHOVIA BANK, N.A.
as Co-Agents
Dated as of April 16, 1999
NATIONSBANC MONTGOMERY SECURITIES LLC
Lead Arranger and Book Manager
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS, ETC.......................................................................................1
SECTION 1.1 Definitions..................................................................................1
SECTION 1.2 General.....................................................................................20
SECTION 1.3 Other Definitions and Provisions............................................................20
SECTION 1.4 Currency Equivalents Generally..............................................................21
SECTION 1.5 Introduction of Euro; National Currency Unit Advances; Etc..................................21
ARTICLE II CREDIT FACILITIES....................................................................................22
SECTION 2.1 Amount and Terms of Credit..................................................................22
SECTION 2.2 Procedure for Advances of Revolving Credit Loans............................................23
SECTION 2.3 Repayment of Loans..........................................................................24
SECTION 2.4 Revolving Credit Notes......................................................................25
SECTION 2.5 Competitive Bid Loans and Procedure.........................................................26
SECTION 2.6 Swingline Loans and Procedure...............................................................29
SECTION 2.7 Commitment Reductions and Increases.........................................................32
SECTION 2.8 Termination; Extension Options..............................................................34
SECTION 2.9 Utilization of Revolving Commitments in Offshore Currencies................................35
SECTION 2.10 Designated Borrowers.......................................................................36
ARTICLE III LETTER OF CREDIT FACILITY...........................................................................37
SECTION 3.1 L/C Commitment..............................................................................37
SECTION 3.2 Procedure for Issuance of Letters of Credit.................................................38
SECTION 3.3 Fees and Other Charges......................................................................38
SECTION 3.4 L/C Participations..........................................................................39
SECTION 3.5 Reimbursement Obligation of the Borrowers...................................................40
SECTION 3.6 Obligations Absolute........................................................................40
SECTION 3.7 Effect of L/C Application...................................................................41
ARTICLE IV GENERAL LOAN PROVISIONS..............................................................................41
SECTION 4.1 Interest....................................................................................41
SECTION 4.2 Conversion and Continuation of Revolving Credit Loans.......................................43
SECTION 4.3 Facility Fees...............................................................................44
SECTION 4.4 Manner of Payment...........................................................................45
SECTION 4.5 Crediting of Payments and Proceeds..........................................................45
SECTION 4.6 Adjustments.................................................................................46
SECTION 4.7 Nature of Obligations of Lenders Regarding Extensions of Credit; Assumption by the
Administrative Agent....................................................................................46
SECTION 4.8 Changed Circumstances.......................................................................47
SECTION 4.9 Indemnity...................................................................................50
SECTION 4.10 Capital Requirements.......................................................................51
SECTION 4.11 Taxes......................................................................................51
ARTICLE V CLOSING; CONDITIONS OF CLOSING AND BORROWING..........................................................53
SECTION 5.1 Closing.....................................................................................53
SECTION 5.2 Conditions to Closing.......................................................................54
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SECTION 5.3 Conditions to All Extensions of Credit......................................................56
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES.................................................57
SECTION 6.1 Representations and Warranties..............................................................57
SECTION 6.2 Survival of Representations and Warranties, Etc.............................................64
ARTICLE VII FINANCIAL INFORMATION AND NOTICES...................................................................65
SECTION 7.1 Financial Statements........................................................................65
SECTION 7.2 Officer's Compliance Certificate............................................................66
SECTION 7.3 Accountants'Certificate.....................................................................66
SECTION 7.4 Other Reports...............................................................................66
SECTION 7.5 Notice of Litigation and Other Matters......................................................66
SECTION 7.6 Accuracy of Information.....................................................................67
ARTICLE VIII AFFIRMATIVE COVENANTS..............................................................................67
SECTION 8.1 Preservation of Corporate Existence and Related Matters.....................................68
SECTION 8.2 Maintenance of Property.....................................................................68
SECTION 8.3 Insurance...................................................................................68
SECTION 8.4 Accounting Methods and Financial Records....................................................68
SECTION 8.5 Payment and Performance of Obligations......................................................68
SECTION 8.6 Compliance With Laws and Approvals..........................................................69
SECTION 8.7 Environmental Laws..........................................................................69
SECTION 8.8 Compliance with ERISA.......................................................................69
SECTION 8.9 Conduct of Business.........................................................................70
SECTION 8.10 Visits and Inspections.....................................................................70
SECTION 8.11 Use of Proceeds............................................................................70
SECTION 8.12 Year 2000 Compatibility....................................................................70
ARTICLE IX NEGATIVE COVENANTS...................................................................................70
SECTION 9.1 Financial Covenants.........................................................................71
SECTION 9.2 Limitations on Liens........................................................................71
SECTION 9.3 Limitations on Mergers and Liquidation......................................................72
SECTION 9.4 Limitations on Sale or Transfer of Assets...................................................72
SECTION 9.5 Prohibitions on Limitations on Dividends and Distributions..................................73
SECTION 9.6 Transactions with Affiliates................................................................73
SECTION 9.7 Certain Accounting Changes..................................................................73
SECTION 9.8 Amendments; Payments and Prepayments of Subordinated Debt...................................74
SECTION 9.9 Sale Leaseback Transactions.................................................................74
ARTICLE X GUARANTY OF THE COMPANY...............................................................................74
SECTION 10.1 Guaranty of Payment........................................................................74
SECTION 10.2 Obligations Unconditional..................................................................74
SECTION 10.3 Modifications..............................................................................75
SECTION 10.4 Waiver of Rights...........................................................................76
SECTION 10.5 Reinstatement..............................................................................76
SECTION 10.6 Remedies...................................................................................76
SECTION 10.7 Limitation of Guaranty.....................................................................76
ARTICLE XI DEFAULT AND REMEDIES.................................................................................77
SECTION 11.1 Events of Default..........................................................................77
SECTION 11.2 Remedies...................................................................................80
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver; etc............................................81
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ARTICLE XII THE ADMINISTRATIVE AGENT............................................................................81
SECTION 12.1 Appointment................................................................................81
SECTION 12.2 Delegation of Duties.......................................................................82
SECTION 12.3 Exculpatory Provisions.....................................................................82
SECTION 12.4 Reliance by the Administrative Agent.......................................................82
SECTION 12.5 Notice of Default..........................................................................83
SECTION 12.6 Non-Reliance on the Administrative Agent and Other Lenders.................................83
SECTION 12.7 Indemnification............................................................................84
SECTION 12.8 The Administrative Agent in Its Individual Capacity........................................84
SECTION 12.9 Resignation of the Administrative Agent; Successor Administrative Agent...................84
SECTION 12.10 Co-Agents.................................................................................85
ARTICLE XIII MISCELLANEOUS......................................................................................85
SECTION 13.1 Notices....................................................................................85
SECTION 13.2 Expenses, Indemnity........................................................................86
SECTION 13.3 Set-off....................................................................................87
SECTION 13.4 Governing Law..............................................................................87
SECTION 13.5 Consent to Jurisdiction....................................................................87
SECTION 13.6 Waiver of Jury Trial.......................................................................88
SECTION 13.7 Reversal of Payments.......................................................................88
SECTION 13.8 Judgment Currency..........................................................................88
SECTION 13.9 Accounting Matters.........................................................................89
SECTION 13.10 Successors and Assigns; Participations; Confidentiality...................................89
SECTION 13.11 Amendments, Waivers and Consents..........................................................93
SECTION 13.12 Performance of Duties.....................................................................93
SECTION 13.13 All Powers Coupled with Interest..........................................................93
SECTION 13.14 Several Obligations of the Borrowers......................................................94
SECTION 13.15 Subordination of Company's Claims Against the Designated Borrowers........................94
SECTION 13.16 Survival of Indemnities...................................................................94
SECTION 13.17 Titles and Captions.......................................................................94
SECTION 13.18 Severability of Provisions................................................................94
SECTION 13.19 Counterparts..............................................................................94
SECTION 13.20 Term of Agreement.........................................................................95
SECTION 13.21 Inconsistencies with Other Documents; Independent Effect of Covenants.....................95
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CREDIT AGREEMENT dated as of April 16, 1999 among HERMAN MILLER, INC.,
a Michigan corporation (the "Company"), certain of the Company's Foreign
Subsidiaries from time to time party hereto (each a "Designated Borrower," and
together with the Company, the "Credit Parties," and each, a "Credit Party"),
the Lenders from time to time party hereto, NATIONSBANK, N.A., as Administrative
Agent, NBD BANK, as Syndication Agent and FIRST UNION NATIONAL BANK, THE
HUNTINGTON NATIONAL BANK and WACHOVIA BANK, N.A., as Co-Agents (all capitalized
terms used herein and defined in Section 1.1 are used herein as therein
defined).
STATEMENT OF PURPOSE
WHEREAS, the Credit Parties wish to establish with the Lenders credit
facilities providing for revolving loans and letters of credit of, initially, up
to $300,000,000 in the aggregate maximum principal amount at any time
outstanding, with the option to increase such facilities to up to $400,000,000
in the aggregate maximum principal amount at any time outstanding, and the
Lenders and the Administrative Agent are willing to establish such credit
facilities on the terms and conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
ARTICLE I
DEFINITIONS, ETC.
SECTION 1.1 DEFINITIONS.
The following terms when used in this Agreement shall have the meanings
assigned to them below:
"364 Day Facility" means the short term revolving credit facility
established pursuant to Section 2.1 hereof.
"364 Day Facility Commitment" means (a) as to any Lender, the
obligation of such Lender to make Revolving Credit Loans under the 364 Day
Facility for the accounts of the Borrowers in an aggregate principal Dollar
Equivalent amount at any time outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule 1.1(a) hereto, as such amount may be
increased, reduced or modified at any time or from time to time pursuant to the
terms hereof and (b) as to all Lenders, the aggregate 364 Day Facility
Commitment of all Lenders to make Revolving Credit Loans under the 364 Day
Facility, as such amount may be increased, reduced or modified at any time or
from time to time pursuant to the terms hereof.
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The 364 Day Facility Commitment of all Lenders on the Closing Date shall be One
Hundred and Fifty Million Dollars ($150,000,000).
"364 Day Facility Commitment Percentage" means, as to any Lender at any
time, the ratio of (a) the amount of the 364 Day Facility Commitment of such
Lender to (b) the aggregate 364 Day Facility Commitment of all of the Lenders.
"364 Day Facility Fee" shall have the meaning assigned thereto in
Section 4.3(a).
"364 Day Facility Specified Maturity Date" means April 15, 2000 or such
later date as determined pursuant to Section 2.8(c).
"364 Day Facility Termination Date" means the earliest of the dates
referred to in Section 2.8(a).
"Administrative Agent" means NationsBank in its capacity as
Administrative Agent hereunder, and any successor thereto appointed pursuant to
Section 12.9.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
13.1(c).
"Affiliate" means, with respect to any Person, any other Person (other
than a Subsidiary) which directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such first Person or any of its Subsidiaries. The term "control" means the
possession, directly or indirectly, of any power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.
"Aggregate Revolving Credit Commitment" means (a) as to any Lender, the
aggregate of such Lender's 364 Day Facility Commitment and Five Year Facility
Commitment, as such amount may be increased, reduced or modified at any time or
from time to time pursuant to the terms hereof and (b) as to all Lenders, the
aggregate 364 Day Facility Commitment and Five Year Facility Commitment of all
Lenders, as such amount may be increased, reduced or modified at any time or
from time to time pursuant to the terms hereof. The Aggregate Revolving Credit
Commitment of all Lenders on the Closing Date shall be Three Hundred Million
Dollars ($300,000,000).
"Aggregate Revolving Credit Commitment Percentage" means, as to any
Lender at any time, the ratio of (a) such Lender's Aggregate Revolving Credit
Commitment to (b) the Aggregate Revolving Credit Commitment of all of the
Lenders.
"Agreed Alternative Currency" shall have the meaning assigned thereto
in Section 2.9(e).
"Agreement" means this Credit Agreement, as amended, restated,
supplemented or otherwise modified.
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"Applicable Currency" means, as to any particular Revolving Credit
Loan, Competitive Bid Loan or payment, Dollars or the Offshore Currency in which
such Loan or payment is denominated or is payable.
"Applicable Law" means all applicable provisions of constitutions,
laws, statutes, ordinances, rules, treaties, regulations, permits, licenses,
approvals, interpretations and orders of Governmental Authorities and all orders
and decrees of all courts and arbitrators.
"Applicable Percentage" means, for purposes of calculating (a) the
interest rate applicable to Offshore Rate Loans for purposes of Section 4.1(a);
(b) the L/C Fee for purposes of Section 3.3(a); (c) the Facility Fees for
purposes of Section 4.3; or (d) the Utilization Fee for purposes of Section
4.1(f), the rate set forth below opposite the applicable Leverage Ratio then in
effect:
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Offshore
Rate
Offshore Loans All-In All-In
Rate under the Cost Cost
Loans Facility Five Year Facility Both Both
under the Fee for Facility Fee for Facilities Facilities
Pricing 364 Day 364 Day and L/C Five Year at < 50% Utilization at > 50%
Level Leverage Ratio Facility Facility Fee Facility Usage Fee Usage
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I < 0.25 to 1.0 0.300% 0.075% 0.250% 0.125% 0.375% 0.125% 0.500%
-
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II > 0.25 to 1.0 but 0.400% 0.100% 0.350% 0.150% 0.500% 0.125% 0.625%
< 1.00 to 1.0
-
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III > 1.00 to 1.0 but 0.500% 0.125% 0.450% 0.175% 0.625% 0.125% 0.750%
< 1.75 to 1.0
-
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IV > 1.75 to 1.0 but 0.600% 0.150% 0.550% 0.200% 0.750% 0.125% 0.875%
< 2.50 to 1.0
-
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V > 2.5 to 1.0 0.800% 0.200% 0.750% 0.250% 1.000% 0.125% 1.125%
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The Applicable Percentage shall be determined and adjusted quarterly on the date
(each a "Rate Determination Date") five (5) Business Days after the date by
which the annual or quarterly compliance certificates, as applicable, and
related financial statements and information are required in accordance with the
provisions of Sections 7.1(a) and (b) and Section 7.2, as appropriate; provided
that:
(i) the initial Applicable Percentages shall be based on
Pricing Level II and shall remain in effect at such Pricing Level until
the first Rate Determination Date to occur after the Closing Date, and
(ii) in the event an annual or quarterly compliance
certificate and related financial statements and information are not
delivered timely to the Administrative Agent's Office by the date
required by Sections 7.1(a) and (b) and Section 7.2, as appropriate (a
"Non-Delivery Event"), the Applicable Percentages shall be based on the
applicable Pricing Level set forth below until such time as an
appropriate compliance certificate and related financial statements and
information are delivered, whereupon the
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applicable Pricing Level shall be adjusted (retroactive to the
immediately preceding Rate Determination Date) based on the information
contained in such compliance certificate and related financial
statements and information:
(A) for the period from the Rate Determination Date occurring
immediately following such Non-Delivery Event until the date that is
fifteen (15) days following such Non-Delivery Event, the Pricing Level
in effect immediately prior to such Rate Determination Date; and
(B) thereafter, Pricing Level V.
Each Applicable Percentage shall be effective from a Rate Determination Date
until the next such Rate Determination Date. The Administrative Agent shall
determine the appropriate Applicable Percentages in the pricing matrix promptly
upon receipt of the quarterly or annual compliance certificate and related
financial information and shall promptly notify the Company and the Lenders of
any change thereof. Such determinations by the Administrative Agent shall be
conclusive absent manifest error. Adjustments in the Applicable Percentages
shall be effective as to existing Extensions of Credit as well as any new
Extension of Credit made thereafter.
"Applicant Borrower" shall have the meaning assigned thereto in Section
2.10(a).
"Arranger" means NationsBanc Montgomery Securities LLC in its capacity
as Lead Arranger and Book Manager for the Credit Facility.
"Assignment and Acceptance" shall have the meaning assigned thereto in
Section 13.10(b)(iii).
"Australian Dollars" means the unit of currency of Australia.
"Available EMU Currency" means Deutsche Marks, Dutch Guilders, French
Francs and Italian Lira.
"Bankruptcy Event" means any of the events set forth in Section
11.1(i), (j), (k) or (l), or any of those events which with the passage of time,
the giving of notice or any other condition, would constitute such an event, in
respect of any of the Credit Parties or any of their Material Subsidiaries.
"Base Rate" means, at any time, the higher of (a) the Prime Rate or (b)
the sum of (i) the Federal Funds Rate plus (ii) 1/2 of 1%; each change in the
Base Rate shall take effect simultaneously with the corresponding change or
changes in the Prime Rate or the Federal Funds Rate.
"Base Rate Loan" means any Loan denominated in Dollars and bearing
interest at a rate based upon the Base Rate as provided in Section 4.1(a).
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"Borrower Joinder Agreement" means a Borrower Joinder Agreement
executed by an Applicant Borrower, the Company and the Administrative Agent in
substantially the form of Exhibit E, as amended, restated, supplemented or
otherwise modified.
"Borrowers" means, collectively, the Company and the Designated
Borrowers; "Borrower" means any one of them.
"Business Day" shall, with respect to dates for the payment or purchase
of any amount denominated in euro or National Currency Units (including without
limitation dates for determining LIBOR for such amount), be deemed to mean a
TARGET Business Day. The definition of "Business Day" shall, for all other
purposes, including without limitation the giving and receiving of notices
hereunder for Offshore Currency Loans denominated in euro or National Currency
Units, be deemed to mean a TARGET Business Day on which banks are generally open
for business in London, Frankfurt, Charlotte, North Carolina and/or in any other
principal financial center as the Administrative Agent shall from time to time
determine for this purpose.
"Canadian Dollars" means the unit of currency of Canada.
"Capital Lease" means, with respect to any Person, any lease of any
property that should, in accordance with GAAP, be classified and accounted for
as a capital lease on a Consolidated balance sheet of such Person and its
Consolidated Subsidiaries.
"Change in Control" shall have the meaning assigned thereto in Section
11.1(h).
"Closing Date" means the date of this Agreement or such later Business
Day upon which each condition described in Section 5.1 and Section 5.2 shall be
satisfied or waived in all respects.
"Co-Agents" means First Union National Bank, The Huntington National
Bank and Wachovia Bank, N.A. in their capacities as Co-Agents hereunder.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended, supplemented or otherwise modified from
time to time.
"Commitment" means, as to any Lender at any time, such Lender's 364 Day
Facility Commitment, Five Year Facility Commitment or Aggregate Revolving Credit
Commitment, as the context requires.
"Commitment Percentage" means, as to any Lender at any time, such
Lender's 364 Day Facility Commitment Percentage, Five Year Facility Commitment
Percentage or Aggregate Revolving Credit Commitment Percentage, as the context
requires.
"Company" means Herman Miller, Inc., a Michigan corporation.
"Competitive Bid" means an offer by a Lender to make a Competitive Bid
Loan in accordance with Section 2.5.
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"Competitive Bid Loans" means any Loan made pursuant to Section 2.5 and
all such Loans collectively as the context requires.
"Competitive Bid Rate" means the rate of interest per annum expressed
in multiples of l/100th of one percent offered with respect to any Competitive
Bid Loan offered by the Lender making such Competitive Bid.
"Competitive Bid Request" means a request by a Borrower for Competitive
Bids in accordance with Section 2.5.
"Consolidated" means, when used with reference to financial statements
or financial statement items of a Person and its Subsidiaries, such statements
or items on a consolidated basis in accordance with applicable principles of
consolidation under GAAP.
"Consolidated EBITDA" means, for any period, as applied to the Company
and its Consolidated Subsidiaries without duplication, the sum of the amounts
for such period of: (i) net income, (ii) interest expense, (iii) income tax
expense, (iv) depreciation expense and (v) amortization expense, all of the
foregoing as determined and computed on a Consolidated basis in accordance with
GAAP.
"Consolidated Interest Expense" means, for any period, for the Company
and its Consolidated Subsidiaries, all interest expense (whether paid or
accrued), including without limitation (a) the amortization of debt discount and
premium, (b) the interest component under Capital Leases and synthetic leases
and (c) the implied interest component, discount or other similar fees or
charges in connection with any asset securitization program, in each case
determined on a Consolidated basis in accordance with GAAP.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which, in accordance with GAAP, are consolidated with
those of the Company in its consolidated financial statements as of such date.
"Consolidated Total Assets" means, as of any date, the assets and
properties of the Company and its Consolidated Subsidiaries, determined on a
Consolidated basis in accordance with GAAP.
"Consolidated Total Debt" means, as of any date, all Debt of the
Company and its Consolidated Subsidiaries for borrowed money, including without
limitation (a) all obligations as lessee under Capital Leases and (b) any Debt
incurred in connection with an asset securitization program or otherwise as a
result of the sale of accounts receivable, in each case as determined on a
Consolidated basis in accordance with GAAP.
"Credit Facility" means the collective reference to the 364 Day
Facility, the Five Year Facility and the L/C Facility or any one of them, as the
context requires.
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"Credit Parties" means, collectively, the Company and any Designated
Borrowers; "Credit Party" means any one of them.
"Current SEC Reports" means the most recent report on Form 10-K, or any
successor form, and any amendments thereto filed by the Company with the
Securities and Exchange Commission (the "Commission") and any reports on Forms
10-Q and/or 8-K, or any successor forms, and any amendments thereto, filed by
the Company with the Commission after the date of such report on Form 10-K.
"Debt" of any Person means at any date, without duplication, the sum of
the following calculated in accordance with GAAP: (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, or upon which interest payments
are customarily made, (c) all obligations of such Person under conditional sale
or other title retention agreements relating to property purchased by such
Person (other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of business), (d)
all obligations of such Person issued or assumed as the deferred purchase price
of Property or services purchased by such Person (other than trade debt incurred
in the ordinary course of business and due within six months of the incurrence
thereof) which would appear as liabilities on a balance sheet of such Person,
(e) all obligations of such Person under take-or-pay or similar arrangements or
under commodities agreements, (f) all Debt of others secured by (or for which
the holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on, or payable out of the proceeds of production from,
property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, provided that for purposes hereof the amount
of such Debt shall be limited to the greater of (i) the amount of such Debt as
to which there is recourse to such Person and (ii) the fair market value of the
property which is subject to the Lien, (g) all Support Obligations of such
Person, (h) the principal portion of all obligations of such Person under
Capital Leases, (i) all obligations of such Person in respect of Hedging
Agreements, (j) the maximum amount of all standby letters of credit issued or
bankers' acceptances facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the extent unreimbursed),
(k) all preferred stock issued by such Person and required by the terms thereof
to be redeemed, or for which mandatory sinking fund payments are due, by a fixed
date, (l) the outstanding attributed principal amount under any asset
securitization program and (m) the principal balance outstanding under any
synthetic lease, tax retention operating lease, off-balance sheet loan or
similar off-balance sheet financing product to which such Person is a party,
where such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease in accordance with GAAP. The
Debt of any Person shall include the Debt of any partnership or joint venture in
which such Person is a general partner or a joint venturer, but only to the
extent to which there is recourse to such Person for payment of such Debt.
"Default" means any of the events specified in Section 11.1 which with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which a
Lender Default is in effect.
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"Designated Borrower" means any Applicant Borrower that becomes a
Borrower under this Agreement in accordance with the provisions of Section 2.10.
"Determination Date" shall have the meaning assigned thereto in Section
2.9(a).
"Deutsche Mark" means the former national currency of the Federal
Republic of Germany.
"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"Dollar Equivalent" means, at any time, (a) as to any amount
denominated in Dollars, the amount thereof at such time, and (b) as to any
amount denominated in an Offshore Currency, the equivalent amount in Dollars as
determined by the Administrative Agent at such time on the basis of the Spot
Rate for the purchase of Dollars with such Offshore Currency on the most recent
Determination Date provided for in Section 2.9(a).
"Dutch Guilders" means the former national currency of the Netherlands.
"Eligible Assignee" means, with respect to any assignment of the
rights, interest and obligations of a Lender hereunder, a Person that is at the
time of such assignment (a) a commercial bank organized under the laws of the
United States or any state thereof, having combined capital and surplus in
excess of $500,000,000, (b) a commercial bank organized under the laws of any
other country that is a member of the Organization of Economic Cooperation and
Development, or a political subdivision of any such country, having combined
capital and surplus in excess of $500,000,000, (c) a finance company, insurance
company or other financial institution which in the ordinary course of business
extends credit of the type extended hereunder and that has total assets in
excess of $l,000,000,000, (d) already a Lender hereunder (whether as an original
party to this Agreement or as the assignee of another Lender) or an Affiliate of
a Lender hereunder, (e) the successor (whether by transfer of assets, merger or
otherwise) to all or substantially all of the commercial lending business of the
assigning Lender, or (f) any other Person that has been approved in writing as
an Eligible Assignee by the Administrative Agent and, provided no Default or
Event of Default has occurred and is continuing, the Company.
"Employee Benefit Plan" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (a) is maintained for employees of a
Borrower or any ERISA Affiliate or (b) has at any time within the preceding six
years been maintained for the employees of a Borrower or any current or former
ERISA Affiliate.
"EMU" means Economic and Monetary Union as contemplated in the Treaty
on European Union.
"EMU Legislation" means legislative measures of the European Council
(including without limitation European Council regulations) for the introduction
of, changeover to or operation of the euro.
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"Environmental Laws" means any and all federal, state, local and
foreign laws, statutes, ordinances, rules, regulations, permits, licenses,
approvals, binding interpretations and orders of courts or Governmental
Authorities, relating to the protection of human health or the environment,
including, but not limited to, requirements pertaining to the manufacture,
processing, distribution, use, treatment, storage, disposal, transportation,
handling, reporting, licensing, permitting, investigation or remediation of
Hazardous Materials.
"Environmental Permits" shall have the meaning assigned thereto in
Section 6.1(h).
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended, supplemented or otherwise
modified from time to time.
"ERISA Affiliate" means any Person who together with a Borrower is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b) of ERISA.
"euro" means the single currency of Participating Member States of the
European Community.
"Eurodollar Reserve Percentage" means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or emergency reserves) in
respect of eurocurrency liabilities or any similar category of liabilities for a
member bank of the Federal Reserve System in New York City and to which the
Administrative Agent or any Lender is then subject.
"European Community" means those European countries that are
signatories to the Treaty on European Union.
"Event of Default" means any of the events specified in Section 11.1,
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Extensions of Credit" means, as to any Lender at any time, an amount
equal to the sum of (a) the aggregate principal amount of all Revolving Credit
Loans made by such Lender then outstanding, (b) such Lender's Five Year Facility
Commitment Percentage of the L/C Obligations then outstanding, (c) the aggregate
principal amount of all Competitive Bid Loans made by such Lender then
outstanding and (d) the aggregate principal amount of all Swingline Loans made
by such Lender then outstanding. "Extension of Credit" means, as to any Lender
(a) any component of such Lender's Extensions of Credit or (b) the making of, or
participation in, a Loan by such Lender or the issuance or extension of, or
participation in, a Letter of Credit by such Lender, as the context may require.
"FDIC" means the Federal Deposit Insurance Corporation, or any
successor thereto.
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<PAGE> 14
"Federal Funds Rate" means, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical Release H.15 (519) or any successor or
substitute publication selected by the Administrative Agent. If, for any reason,
such rate is not available, then "Federal Funds Rate" shall mean a daily rate
which is determined, in the opinion of the Administrative Agent, to be the rate
at which federal funds are being offered for sale in the national federal funds
market at 9:00 a.m. (Charlotte time). Rates for weekends or holidays shall be
the same as the rate for the most immediate preceding Business Day.
"Fiscal Year" means the fiscal year of the Company and its Subsidiaries
ending on or about May 30.
"Five Year Facility" means the multi-year revolving credit facility
established pursuant to Section 2.1 hereof.
"Five Year Facility Commitment" means (a) as to any Lender, the
obligation of such Lender to make Revolving Credit Loans under the Five Year
Facility for the accounts of the Borrowers in an aggregate principal Dollar
Equivalent amount at any time outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule 1.1(a) hereto as such amount may be
increased, reduced or modified at any time or from time to time pursuant to the
terms hereof and (b) as to all Lenders, the aggregate Five Year Facility
Commitment of all Lenders to make Revolving Credit Loans under the Five Year
Facility, as such amount may be increased, reduced or modified at any time or
from time to time pursuant to the terms hereof. The Five Year Facility
Commitment of all Lenders on the Closing Date shall be One Hundred and Fifty
Million Dollars ($150,000,000).
"Five Year Facility Commitment Percentage" means, as to any Lender at
any time, the ratio of (a) the amount of the Five Year Facility Commitment of
such Lender to (b) the aggregate Five Year Facility Commitment of all of the
Lenders.
"Five Year Facility Fee" shall have the meaning assigned thereto in
Section 4.3(b).
"Five Year Facility Specified Maturity Date" means April 16, 2004 or
such later date as determined pursuant to Section 2.8(d).
"Five Year Facility Termination Date" means the earliest of the dates
referred to in Section 2.8(b).
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Company is located. For purposes of
this definition, the United States of America, each state thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Pension Plan" shall mean any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by a Borrower or any one or more
of its Subsidiaries primarily for the benefit
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<PAGE> 15
of employees of such Borrower or such Subsidiaries residing outside the United
States of America, which plan, fund or other similar program provides, or
results in, retirement income, a deferral of income in contemplation of
retirement or payments to be made upon termination of employment, and which plan
is not subject to ERISA or the Code.
"Foreign Subsidiary" means each Subsidiary of the Company that is not
incorporated under the laws of the United States or any State or territory
thereof.
"French Francs" means the former national currency of the Republic of
France.
"GAAP" means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis throughout the period indicated.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Guaranteed Obligations" means, without duplication, all of the
obligations of the Designated Borrowers to the Lenders and the Administrative
Agent, whenever arising, under this Agreement, the Borrower Joinder Agreements
and the Notes (including, but not limited to, obligations with respect to
principal, interest and fees).
"Hazardous Materials" means any substances or materials (a) which are
or become regulated or defined as hazardous wastes, hazardous substances,
pollutants, contaminants, chemical substances or mixtures or toxic substances
under any Environmental Law, (b) which are toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise harmful
to human health or the environment and are or become regulated by any
Governmental Authority, (c) the presence of which require investigation or
remediation under any Environmental Law, (d) the discharge or emission or
release of which requires a permit or license under any Applicable Law or other
Governmental Approval, or (e) which contain, without limitation, asbestos,
polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum
hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel,
natural gas or synthetic gas.
"Hedging Agreement" means any agreement with respect to an interest
rate swap, collar, cap, floor or forward rate agreement, foreign currency
agreement or other agreement regarding the hedging of interest rate risk
exposure executed in connection with hedging the interest rate exposure of any
Person, and any confirming letter executed pursuant to such hedging agreement,
all as amended, restated or otherwise modified from time to time.
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<PAGE> 16
"Interest Coverage Ratio" means, as of the last day of any fiscal
quarter, the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest
Expense, in each case for the period of four (4) consecutive fiscal quarters
ending as of such day.
"Interest Period" shall have the meaning assigned thereto in Section
4.1(b).
"Irrevocable Conversion Rate" with respect to any Available EMU
Currency, means the rate adopted and irrevocably fixed by the European Council
(in accordance with Article 109l(4) of the Treaty on European Union) on December
31, 1998 as the official exchange rate at which National Currency Units of such
Available EMU Currency shall be converted into euro, and euro shall be converted
into National Currency Units of such Available EMU Currency.
"Issuing Lender" means NBD Bank in its capacity as issuer of any Letter
of Credit, and any other Lender mutually acceptable and on terms satisfactory to
the Company and the Administrative Agent.
"Italian Lira" means the former national currency of Italy.
"Japanese Yen" means the unit of currency of Japan.
"L/C Application" means an application, in the form specified by any
Issuing Lender from time to time, requesting such Issuing Lender to issue a
Letter of Credit.
"L/C Commitment" means Ten Million Dollars ($10,000,000).
"L/C Facility" means the letter of credit facility established pursuant
to Article III hereof.
"L/C Fee" shall have the meaning assigned thereto in Section 3.3(a).
"L/C Obligations" means at any time, an amount equal to the sum of (a)
the aggregate undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to Section 3.5.
"L/C Participants" means the collective reference to all the Lenders
having a Five Year Facility Commitment other than the applicable Issuing Lender.
"Lender" means each Person executing this Agreement as a Lender as set
forth on the signature pages hereto and each Person that hereafter becomes a
party to this Agreement as a Lender pursuant to Section 13.10(b), other than any
party hereto that ceases to be a party hereto pursuant to any Assignment and
Acceptance.
"Lender Default" means (a) the refusal (which has not been retracted)
or the failure of a Lender to make available its portion of any Mandatory
Borrowing or (b) a Lender having notified in writing the Borrowers and/or the
Administrative Agent that such Lender does not
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<PAGE> 17
intend to comply with its obligations under Section 2.6(b), in the case of
either clause (a) or (b) as a result of any takeover or control of such Lender
by any Governmental Authority.
"Lending Office" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Aggregate Revolving Credit Commitment
Percentage of the Revolving Credit Loans.
"Letters of Credit" shall have the meaning assigned thereto in Section
3.1.
"Leverage Ratio" means, as of the last day of any fiscal quarter, the
ratio of (a) Consolidated Total Debt on such day to (b) Consolidated EBITDA for
the period of four (4) consecutive fiscal quarters ending as of such day.
"LIBOR" means, for any Offshore Rate Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100th of 1%) appearing on Telerate Page 3740 or 3750, as applicable (or any
successor or equivalent page), as the London interbank offered rate for deposits
in the Applicable Currency and in the approximate amount of the Loan to be made
or continued as, or converted into, such Offshore Rate Loan at approximately
11:00 a.m. (London time) two (2) Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period; provided,
however, if more than one rate is specified on Telerate Page 3740 or 3750, as
applicable, the relevant rate shall be the arithmetic mean of all such rates. If
for any reason such rate is not available, the term "LIBOR" shall mean, for any
Offshore Rate Loan for any Interest Period therefor,
(a) the rate per annum (rounded upwards, if necessary, to the
nearest 1/100th of 1%) appearing on Reuters Screen LIBO Page as the
London interbank offered rate for deposits in the Applicable Currency
and in the approximate amount of the Loan to be made or continued as,
or converted into, such Offshore Rate Loan at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period; provided,
however, if more than one rate is specified on Reuters Screen LIBO
Page, the relevant rate shall be the arithmetic mean of all such rates,
or
(b) if no rate is available on the Reuters Screen LIBO page,
then the rate determined by the Administrative Agent at which the
Applicable Currency in the approximate amount of the Loan to be made or
continued as, or converted into, such Offshore Rate Loan is offered by
leading banks in the London interbank market at approximately 11:00
a.m. (London time) two Business Days prior to the first day of the
applicable Interest Period (rounded upwards, if necessary, to the
nearest 1/100th of 1%).
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, a Person shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, Capital Lease or other
title retention agreement relating to such asset.
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<PAGE> 18
"Loan Documents" means, collectively, this Agreement, the Notes, the
L/C Applications, any Borrower Joinder Agreement and each other document,
instrument and agreement executed and delivered by any Credit Party, its
Subsidiaries or their counsel in connection with this Agreement or otherwise
referred to herein or contemplated hereby, all as may be amended, restated or
otherwise modified.
"Loans" means the collective reference to the Revolving Credit Loans,
the Competitive Bid Loans and the Swingline Loans; "Loan" means any one of such
Loans.
"Mandatory Borrowing" shall have the meaning assigned thereto in
Section 2.6(b).
"Material Adverse Effect" means any of (a) a material adverse effect on
the business, assets, liabilities (actual or contingent), operations, condition
(financial or otherwise) or financial prospects of the Credit Parties and their
Subsidiaries taken as a whole, (b) a material adverse effect on the ability of
any such Credit Party to perform its obligations under the Loan Documents, in
each case to which it is a party, or (c) a material adverse effect on the rights
or remedies of the Lenders or the Administrative Agent hereunder or under any
other Loan Document.
"Material Subsidiary" means a Subsidiary which is material to the
business, assets, liabilities (actual or contingent), operations or financial
condition of a Person and its Subsidiaries taken as a whole, including, without
limitation, a Subsidiary whose principal assets are one or more Material
Subsidiaries.
"MLA Cost" means an addition to the interest rate on a Revolving Credit
Loan to compensate any Lender for the cost imputed to a Lender in respect of any
Revolving Credit Loan made in an Offshore Currency during the term of such Loan
resulting from the imposition from time to time under or pursuant to the Bank of
England Act 1998 (the "Act") and/or by the Bank of England and/or the Financial
Services Authority (the "FSA") (or other United Kingdom governmental authorities
or agencies) of a requirement to place non-interest-bearing cash ratio deposits
or Special Deposits (whether interest bearing or not) with the Bank of England
and/or pay fees to the FSA calculated by reference to liabilities used to fund
the Revolving Credit Loan made in such Offshore Currency, as determined in
accordance with Schedule 4.1(f).
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which a Borrower or any ERISA Affiliate is making, has
made, is accruing or has accrued an obligation to make, contributions within the
preceding six years.
"National Currency Unit" means a fraction or multiple of one euro
expressed in units of an Available EMU Currency. Offshore Currency Loans
requested to be denominated in National Currency Units shall be available only
in accordance with Section 1.5.
"NationsBank" means NationsBank, N.A., a national banking association,
and its successors.
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<PAGE> 19
"NBD Bank" means NBD Bank, a Michigan banking corporation, and its
successors, together with any of its affiliates and branches.
"Notes" means the collective reference to the Revolving Credit Notes;
"Note" means any one of such Notes.
"Notice of Account Designation" shall have the meaning assigned thereto
in Section 2.2(b).
"Notice of Conversion/Continuation" shall have the meaning assigned
thereto in Section 4.2.
"Notice of Prepayment" shall have the meaning assigned thereto in
Section 2.3(c).
"Notice of Revolving Credit Borrowing" shall have the meaning assigned
thereto in Section 2.2(a).
"Notice of Swingline Borrowing" shall have the meaning assigned thereto
in Section 2.6(d).
"Obligations" means, in each case, whether now in existence or
hereafter arising: (a) the principal of and interest on (including interest
accruing after the filing of any bankruptcy or similar petition) the Loans, (b)
all payment and other obligations owing by the Credit Parties to any Lender or
Affiliate of a Lender or the Administrative Agent under any Hedging Agreement
with any Lender or Affiliate of a Lender (which such Hedging Agreement is
permitted hereunder), and (c) all other fees and commissions (including
attorney's fees), charges, indebtedness, loans, liabilities, financial
accommodations, obligations, covenants and duties owing by the Credit Parties to
the Lenders or the Administrative Agent, of every kind, nature and description,
direct or indirect, absolute or contingent, due or to become due, contractual or
tortious, liquidated or unliquidated, and whether or not evidenced by any note,
in each case under or in respect of this Agreement, any Note, or any of the
other Loan Documents.
"Officer's Compliance Certificate" shall have the meaning assigned
thereto in Section 7.2.
"Offshore Currency" means (a) with respect to Revolving Credit Loans,
euro, any National Currency Unit, Sterling, Japanese Yen and any Agreed
Alternative Currency determined in accordance with Section 2.9(e) and (b) with
respect to Competitive Bid Loans, Canadian Dollars and Australian Dollars.
"Offshore Currency Loan" means any Offshore Rate Loan or Competitive
Bid Loan denominated in an Offshore Currency.
"Offshore Rate" means, for any Interest Period, with respect to an
Offshore Rate Loan, the rate of interest per annum (rounded upward to the next
1/100th of 1%) determined by the Administrative Agent as follows:
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<PAGE> 20
Offshore Rate = LIBOR
-----------------------------------
. 1.00- Eurodollar Reserve Percentage
The Offshore Rate shall be adjusted automatically as to all Offshore Rate Loans
then outstanding as of the effective date of any change in the Eurodollar
Reserve Percentage.
"Offshore Rate Loan" means a Revolving Credit Loan or a Swingline Loan
bearing interest at a rate based upon the Offshore Rate as provided in Section
4.1(a) and, if a Revolving Credit Loan, may be an Offshore Currency Loan or a
Revolving Credit Loan denominated in Dollars.
"Operating Lease" shall mean, as to any Person, as determined in
accordance with GAAP, any lease of property (whether real, personal or mixed) by
such Person as lessee which is not a Capital Lease.
"Other Taxes" shall have the meaning assigned thereto in Section
4.11(b).
"Participating Member State" means each country so described in any EMU
Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor agency.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and is maintained for the employees of a Borrower or any
of its ERISA Affiliates.
"Person" means an individual, corporation, limited liability company,
partnership, association, trust, business trust, joint venture, joint stock
company, pool, syndicate, sole proprietorship, unincorporated organization,
Governmental Authority or any other form of entity or group thereof.
"Prime Rate" means, at any time, the rate of interest per annum
established from time to time by NationsBank as its prime rate in effect at its
principal office in Charlotte, North Carolina. Each change in the Prime Rate
shall be effective as of the opening of business on the day such change in the
Prime Rate occurs. The parties hereto acknowledge that the rate established by
NationsBank as its Prime Rate is an index or base rate and shall not necessarily
be its lowest or best rate charged to its customers or other banks.
"Prior Bank Commitments" means the Company's committed credit
facilities with domestic lenders as of the Closing Date, which consist of those
certain revolving credit facilities made available to the Company on February
28, 1997 by (a) NationsBank, N.A. in the amount of $30,000,000, (b) Bank of
America Illinois in the amount of $35,000,000 and (c) NBD Bank in the amount of
$35,000,000.
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<PAGE> 21
"Real Property" of any Person shall mean all the right, title and
interest of such Person in and to land, improvements and fixtures, including
leaseholds.
"Reimbursement Obligation" means the obligation of a Borrower to
reimburse each Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit issued at the request of such Borrower.
"Register" shall have the meaning assigned thereto in Section 13.10(d).
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Pension Plan that is subject to Title IV of ERISA other
than those events as to which the 30-day notice period is waived under
subsection .22, .23, .27 or .28 of PBGC Regulation Section 4043.
"Required Lenders" means, at any date, any combination of Lenders whose
Aggregate Revolving Credit Commitment Percentage equals at least fifty-one
percent (51%) of the Aggregate Revolving Credit Commitment or, if the Aggregate
Revolving Credit Commitment has been terminated, any combination of Lenders who
collectively hold at least fifty-one percent (51%) of the aggregate unpaid
principal amount of the Extensions of Credit (excluding the aggregate unpaid
principal amount of Competitive Bid Loans); provided that, for purposes of
declaring the Loans to be due and payable pursuant to Article XI, and for all
purposes after the Loans become due and payable pursuant to Article XI, the
outstanding Competitive Bid Loans of the Lenders shall be included in the
Lenders' respective Aggregate Revolving Credit Commitment Percentages in
determining the Required Lenders.
"Responsible Officer" means any of the following: the chairman,
president, chief executive officer, chief financial officer, treasurer or vice
president and corporate controller of a Borrower or any other officer of a
Borrower reasonably acceptable to the Administrative Agent.
"Revolving Credit Loans" means any revolving loan made to a Borrower
pursuant to Section 2.2 under the 364 Day Facility or the Five Year Facility,
and all such revolving loans collectively as the context requires.
"Revolving Credit Notes" means the collective reference to the
Revolving Credit Notes made by the Borrowers payable to the order of each Lender
with a Five Year Facility Commitment or a 364 Day Facility Commitment,
substantially in the form of Exhibit A hereto, and any amendments and
modifications thereto, any substitutes therefor, and any replacements,
restatements, renewals or extensions thereof, in whole or in part; "Revolving
Credit Note" means any of such Revolving Credit Notes.
"SEC Reports" shall have the meaning assigned thereto in Section
6.1(x).
"Spot Rate" for a currency means the rate quoted by the Administrative
Agent as the spot rate for the purchase by the Administrative Agent of such
currency with another currency through its foreign exchange trading office at
approximately 8:00 a.m. (Charlotte time) on the date two Business Days prior to
the date as of which the foreign exchange computation is made.
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<PAGE> 22
"Sterling" means the currency of the United Kingdom.
"Subordinated Debt" means the collective reference to Debt on Schedule
6.1(p) hereof designated as Subordinated Debt and any other Debt of the Credit
Parties or any Subsidiary thereof subordinated in right and time of payment to
the Obligations and otherwise permitted hereunder.
"Subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be Consolidated with those of the
parent in the parent's Consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than fifty percent (50%) of the equity or more than fifty percent (50%) of the
ordinary voting power or, in the case of a partnership, more than fifty percent
(50%) of the general partnership interests are, as of such date, owned,
controlled or held, or (b) that is, as of such date, otherwise controlled, by
the parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent. Unless otherwise qualified, references to
"Subsidiary" or "Subsidiaries" herein shall refer to those of the Company.
"Support Obligation" means, with respect to any Person and its
Subsidiaries, without duplication, any obligation, contingent or otherwise, of
any such Person pursuant to which such Person has directly or indirectly
guaranteed any Debt or other obligation of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of any such Person (a) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by agreement to keep
well, to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement condition or otherwise) or (b) entered into for the
purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided that the term Support Obligation
shall not include (i) endorsements for collection or deposit in the ordinary
course of business or (ii) a contractual commitment by one Person to invest in
another Person for so long as such investment is expected to constitute a
permitted investment under Section 9.3.
"Swingline Commitment" means the obligation of the Swingline Lender to
make Swingline Loans under the Five Year Facility for the accounts of the
Borrowers in an aggregate principal amount at any time outstanding not to exceed
Twenty Million Dollars ($20,000,000).
"Swingline Lender" means NBD Bank in its capacity as issuer of any
Swingline Loan.
"Swingline Loans" means any revolving loan made pursuant to Section 2.6
and all such loans collectively as the context requires.
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<PAGE> 23
"Swingline Termination Date" means the earlier to occur of (a) the
resignation of NBD Bank as Swingline Lender and (b) the Five Year Facility
Termination Date.
"TARGET" means the Trans-European Automated Real-time Gross settlement
Express Transfer system.
"TARGET Business Day" means a day when TARGET is scheduled to be open
for business.
"Taxes" shall have the meaning assigned thereto in Section 4.11(a).
"Termination Date" means the 364 Day Facility Termination Date or the
Five Year Facility Termination Date, as the context requires.
"Termination Event" means any of the following that result in a
Material Adverse Effect: (a) a "Reportable Event" described in Section 4043 of
ERISA, or (b) the withdrawal of a Borrower or any ERISA Affiliate from a Pension
Plan during a plan year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA, or (c) the termination of a Pension Plan, the
filing of a notice of intent to terminate a Pension Plan or the treatment of a
Pension Plan amendment as a termination under Section 4041 of ERISA, or (d) the
institution of proceedings to terminate, or to seek the appointment of a trustee
with respect to, any Pension Plan by the PBGC, or (e) any other event or
condition which would constitute grounds under Section 4042(a) of ERISA for the
termination of, or the appointment of a trustee to administer any Pension Plan,
or (f) the partial or complete withdrawal of a Borrower or any ERISA Affiliate
from a Multiemployer Plan, or (g) the imposition of a Lien pursuant to Section
412 of the Code or Section 302 of ERISA, or (h) any event or condition which
results in the reorganization or insolvency of a Multiemployer Plan under
Sections 4241 or 4245 of ERISA, (i) any event or condition which results in the
termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by PBGC of proceedings to terminate a Multiemployer Plan under
Section 4042 of ERISA or (j) the withdrawal or partial withdrawal of any Credit
Party or ERISA Affiliate from a Multiemployer Plan.
"Transition Period" means the period established by EMU Legislation,
beginning on January 1, 1999 and ending on the Transition Period Cutoff Date,
during which sums of money in the Participating Member States may be denominated
in either euro or National Currency Units.
"Transition Period Cutoff Date" shall mean December 31, 2001, or such
other date as may be established by EMU Legislation.
"Treaty on European Union" means the Treaty of Rome of March 25, 1957,
as amended by the Single European Act 1986 and the Maastricht Treaty (which was
signed at Maastricht on February 1, 1992 and came into force on November 1,
1993), as amended from time to time.
"UCC" means, with respect to any Letter of Credit, the Uniform
Commercial Code as in effect in the State in which the corporate headquarters of
the relevant Issuing Lender is located or
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<PAGE> 24
such other jurisdiction as is acceptable to the relevant Issuing Lender, as
amended, restated or otherwise modified from time to time.
"Unfunded Current Liability" of any Pension Plan means the amount, if
any, by which the actuarial present value of the accumulated plan benefits under
the Pension Plan as of the close of its most recent year, determined in
accordance with actuarial assumptions at such time consistent with Statement of
Financial Accounting Standards No 87, exceeds the sum of (a) the market value of
the assets allocable thereto and (b) $100,000.
"Uniform Customs" means the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500.
"United States" means the United States of America.
"Utilization Fee" means a per annum rate equal to the Applicable
Percentage for Utilization Fee.
"Wholly-Owned" means, with respect to a Subsidiary, that all of the
shares of capital stock or other ownership interests of such Subsidiary are,
directly or indirectly, owned or controlled by any Credit Party and/or one or
more of its Wholly-Owned Subsidiaries.
"Year 2000 Problem" shall have the meaning assigned thereto in Section
5.2(h)(ii).
SECTION 1.2 GENERAL.
Unless otherwise specified, a reference in this Agreement to a
particular section, subsection, Schedule or Exhibit is a reference to that
section, subsection, Schedule or Exhibit of this Agreement. Wherever from the
context it appears appropriate, each term stated in either the singular or
plural shall include the singular and plural, and pronouns stated in the
masculine, feminine or neuter gender shall include the masculine, feminine and
neuter. Any reference herein to "Charlotte time," "Chicago time" or "London
time" shall refer to the applicable time of day in Charlotte, North Carolina,
Chicago, Illinois or London, England, as applicable.
SECTION 1.3 OTHER DEFINITIONS AND PROVISIONS.
(a) Use of Capitalized Terms. Unless otherwise defined therein,
all capitalized terms defined in this Agreement shall have the defined meanings
provided herein when used in this Agreement, the Notes and the other Loan
Documents or any certificate, report or other document made or delivered
pursuant to this Agreement.
(b) Miscellaneous. The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
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SECTION 1.4 CURRENCY EQUIVALENTS GENERALLY.
For all purposes of this Agreement (but not for purposes of the
preparation of any financial statements delivered pursuant hereto), the
equivalent in any Offshore Currency or other currency of an amount in Dollars,
and the equivalent in Dollars of an amount in any Offshore Currency or other
currency, shall be determined at the Spot Rate.
SECTION 1.5 INTRODUCTION OF EURO; NATIONAL CURRENCY UNIT
ADVANCES; ETC.
(a) National Currency Unit Advances. Prior to the Transition
Period Cutoff Date, and upon request by a Borrower in accordance with Section
2.2(a), Revolving Credit Loans that are Offshore Currency Loans may be funded
and maintained in National Currency Units of the Available EMU Currency
designated by such Borrower in its Notice of Revolving Credit Borrowing.
Repayments of Offshore Currency Loans that were funded in National Currency
Units pursuant to this Section shall be made in such National Currency Units;
provided, however, that any Offshore Currency Loan that is (i) denominated in
National Currency Units and (ii) outstanding as of the Transition Period Cutoff
Date shall be automatically redenominated into euro as of the close of business
on such date at the applicable Irrevocable Conversion Rate; and provided further
that repayments of all such Offshore Currency Loans made after the Transition
Period Cutoff Date shall be denominated in euro. After the Transition Period
Cutoff Date, Offshore Currency Loans shall no longer be funded in National
Currency Units.
(b) Conversions to Euro. For the avoidance of doubt, the parties
hereto affirm and agree that neither the fixation of the conversion rate of an
Available EMU Currency against the euro as a single currency, in accordance with
the Treaty on European Union, nor the conversion of any Obligations under the
Loan Documents from an Available EMU Currency, or National Currency Units, into
euro, shall require the early termination of this Agreement or the prepayment of
any amount due under the Loan Documents or create any liability of one party to
another party for any direct or consequential loss arising from any of such
events.
(c) Currency Translations; Rounding. Any translation from one
currency or currency unit to another shall be at the rate specified herein or,
if not so specified, then at the official rate of exchange legally recognized by
the central bank of the country issuing such currency for the conversion of that
currency or currency unit into the other. Any such translation shall be rounded
up or down by the Administrative Agent acting in accordance with any Applicable
Law on rounding or, if there is no such law, acting reasonably in accordance
with its market practice.
(d) Changes in Currency. If a change in any currency of a country
occurs, this Agreement will be amended to the extent the Administrative Agent
(acting reasonably) specifies to be necessary to reflect the change in currency
and to put the parties hereto in the same position, as far as possible, that
they would have been in if no change in currency had occurred; provided that any
such amendments will not adversely affect the Lenders.
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ARTICLE II
CREDIT FACILITIES
SECTION 2.1 AMOUNT AND TERMS OF CREDIT.
(a) Description of Facilities. Upon the terms and subject to the
conditions set forth in this Agreement: (i) the Lenders hereby grant to the
Borrowers a short term revolving credit facility (the "364 Day Facility") and a
multi-year revolving credit facility (the "Five Year Facility") pursuant to
which each Lender severally agrees to make Revolving Credit Loans to the
respective Borrowers in Dollars and Offshore Currencies in accordance with
Section 2.2 and the Swingline Lender agrees to make Swingline Loans to the
respective Borrowers in Dollars in accordance with Section 2.6 and (ii) the
parties hereto agree that each Lender may, in its sole discretion, make bids to
make Competitive Bid Loans to the respective Borrowers in Dollars, Canadian
Dollars or Australian Dollars in accordance with Section 2.5; provided that (A)
the aggregate principal Dollar Equivalent amount of all outstanding Revolving
Credit Loans (after giving effect to any amount requested) made under the 364
Day Facility shall not exceed the 364 Day Facility Commitment less the aggregate
principal Dollar Equivalent amount of all outstanding Competitive Bid Loans made
under the 364 Day Facility; and the principal Dollar Equivalent amount of
outstanding Revolving Credit Loans made under the 364 Day Facility by any Lender
shall not at any time exceed such Lender's 364 Day Facility Commitment; and (B)
the aggregate principal Dollar Equivalent amount of all outstanding Revolving
Credit Loans (after giving effect to any amount requested) made under the Five
Year Facility plus the aggregate principal amount of all outstanding Swingline
Loans made under the Five Year Facility (after giving effect to the amount of
any Swingline Loans requested under the Five Year Facility and exclusive of
Swingline Loans made under the Five Year Facility which are repaid with the
proceeds of, and simultaneously with the incurrence of, Revolving Credit Loans
under the Five Year Facility) shall not exceed the Five Year Facility Commitment
less the sum of (x) all outstanding L/C Obligations plus (y) the aggregate
principal Dollar Equivalent amount of all outstanding Competitive Bid Loans made
under the Five Year Facility; and the principal Dollar Equivalent amount of
outstanding Revolving Credit Loans made under the Five Year Facility by any
Lender shall not at any time exceed such Lender's Five Year Facility Commitment.
Each Revolving Credit Loan made by a Lender under the 364 Day Facility or the
Five Year Facility shall be in a principal Dollar Equivalent amount equal to
such Lender's Commitment Percentage of the aggregate principal Dollar Equivalent
amount of Revolving Credit Loans requested under such facility on such occasion.
(b) Application of Facilities. The Credit Facility established
hereby shall be used by the Borrowers and their respective Subsidiaries to:
(i) refinance existing Debt of the Company and its
Subsidiaries, including without limitation, Debt outstanding under the
Prior Bank Commitments;
(ii) finance share repurchases and friendly acquisitions by
the Company; and
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(iii) finance the working capital, capital expenditures and
general corporate purposes of the Borrowers and their respective
Subsidiaries;
and, accordingly, the Borrowers shall apply all amounts raised by them hereunder
in or towards satisfaction of such purposes and neither the Administrative Agent
and the Lenders nor any of them shall be obliged to concern themselves with such
application.
SECTION 2.2 PROCEDURE FOR ADVANCES OF REVOLVING CREDIT LOANS.
(a) Requests for Revolving Credit Loans. A Borrower shall give the
Administrative Agent irrevocable prior written notice in the form attached
hereto as Exhibit B-1 (a "Notice of Revolving Credit Borrowing") not later than
11:00 a.m. (Charlotte time) (i) on the same Business Day as each Base Rate Loan,
(ii) at least three (3) Business Days before each Offshore Rate Loan denominated
in Dollars, and (iii) at least four (4) Business Days before each Offshore
Currency Loan, of its intention to borrow, specifying (A) the date of such
borrowing, which shall be a Business Day, (B) whether such Revolving Credit Loan
is to be made under the 364 Day Facility or the Five Year Facility, (C) the
amount of such borrowing, which shall be in an amount equal to the unused amount
of the 364 Day Facility Commitment or the Five Year Facility Commitment, as
applicable, or if less, (x) with respect to Base Rate Loans, in an aggregate
principal amount of $1,000,000 or a whole multiple of $500,000 in excess
thereof, (y) with respect to Offshore Rate Loans denominated in Dollars, in an
aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof and (z) with respect to Offshore Rate Loans denominated in an
Offshore Currency, in an aggregate principal amount of a whole multiple of
1,000,000 units of such Offshore Currency in excess of an amount of such
Offshore Currency having a Dollar Equivalent of $5,000,000; (D) whether such
Revolving Credit Loan is to be an Offshore Rate Loan or Base Rate Loan and (E)
in the case of an Offshore Rate Loan, the duration of the Interest Period
applicable thereto and the Applicable Currency. Notices received after 11:00
a.m. (Charlotte time) shall be deemed received on the next Business Day. The
Administrative Agent shall promptly notify the Lenders of each Notice of
Revolving Credit Borrowing. The Dollar Equivalent amount of an Offshore Currency
Loan will be determined by the Administrative Agent for such Offshore Currency
Loan on the Determination Date therefor in accordance with Section 2.9(a).
(b) Disbursement of Revolving Credit Loans. Each Lender will make
available to the Administrative Agent, for the accounts of the respective
Borrowers, at the Administrative Agent's Office in funds immediately available
to the Administrative Agent, such Lender's Commitment Percentage of the
Revolving Credit Loans to be made on such borrowing date (i) in the case of a
Revolving Credit Loan denominated in Dollars, no later than 2:00 p.m. (Charlotte
time) on the proposed borrowing date and (ii) in the case of a Revolving Credit
Loan that is an Offshore Currency Loan, by such time as the Administrative Agent
may determine to be necessary for such funds to be credited on such date in
accordance with normal banking practices in the place of payment. Each Borrower
hereby irrevocably authorizes the Administrative Agent to disburse the proceeds
of each borrowing requested by such Borrower pursuant to this Section 2.2 in
immediately available funds by crediting or wiring such proceeds to the deposit
account of such Borrower identified in the most recent notice of account
designation, substantially in the form of Exhibit C hereto (a "Notice of Account
Designation"), delivered by such Borrower to the
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Administrative Agent or as may be otherwise agreed upon by such Borrower and the
Administrative Agent from time to time. Subject to Section 4.7 hereof, the
Administrative Agent shall not be obligated to disburse the portion of the
proceeds of any Revolving Credit Loan requested pursuant to this Section 2.2 for
which any Lender is responsible to the extent that such Lender has not made
available to the Administrative Agent its Commitment Percentage of such
Revolving Credit Loan.
SECTION 2.3 REPAYMENT OF LOANS.
(a) Repayment on Termination Date. Each Borrower agrees to repay
the outstanding principal amount of all Loans made to it under the 364 Day
Facility in full on the 364 Day Facility Termination Date, with all accrued but
unpaid interest thereon. Each Borrower agrees to repay the outstanding principal
amount of all Loans made to it under, and its Reimbursement Obligation under,
the Five Year Facility in full on the Five Year Facility Termination Date, with
all accrued but unpaid interest thereon.
(b) Mandatory Repayment of Loans.
(i) If at any time (A) the sum of the outstanding principal
Dollar Equivalent amount of all Loans made under the 364 Day Facility
exceeds the 364 Day Facility Commitment of all Lenders or (B) the sum
of the outstanding principal Dollar Equivalent amount of all Loans made
under the Five Year Facility and all outstanding L/C Obligations
exceeds the Five Year Facility Commitment of all Lenders, in each case
other than solely as a result of a change in applicable rates of
exchange between Dollars and Offshore Currencies, the Borrowers agree
to repay immediately upon notice from the Administrative Agent, by
payment to the Administrative Agent for the account of the Lenders,
Revolving Credit Loans, Swingline Loans, L/C Obligations or Competitive
Bid Loans and/or furnish cash collateral reasonably satisfactory to the
Administrative Agent, in an amount equal to such excess. Such cash
collateral shall be applied in accordance with Section 11.2(b).
(ii) If on any Determination Date, the Administrative Agent
shall have determined that the aggregate principal Dollar Equivalent
amount of all Loans and L/C Obligations then outstanding exceeds the
Aggregate Revolving Credit Commitment by more than $500,000 due to a
change in applicable rates of exchange between Dollars and Offshore
Currencies, then the Administrative Agent shall give notice to the
Borrowers that a prepayment is required under this Section 2.3(b)(ii)
and the Borrowers agree thereupon to make prepayments of Loans within
two (2) Business Days after receipt of such notice such that, after
giving effect to such prepayments, the aggregate Dollar Equivalent
amount of all Loans and L/C Obligations then outstanding does not
exceed the Aggregate Revolving Credit Commitment.
(iii) Notwithstanding anything to the contrary in Section
2.3(b)(ii), the mandatory repayment described in such Section of any
Offshore Rate Loans may be delayed until the last day of the Interest
Period applicable to such Offshore Rate Loans; provided, that if the
Borrowers so delay repayment of Offshore Rate Loans, the
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Borrowers shall deposit or cause to be deposited, on the day repayment
would have otherwise been required, in a cash collateral account opened
by the Administrative Agent, an amount equal to the aggregate principal
amount of such delayed mandatory repayment of Offshore Rate Loans and
any accrued but unpaid interest thereon. Any repayment of such Offshore
Rate Loans other than on the last day of the Interest Period applicable
thereto shall be accompanied by any amount required to be paid pursuant
to Section 4.9 hereof.
(c) Optional Repayments. Each Borrower may at any time and from
time to time repay the Revolving Credit Loans or Swingline Loans made to it, in
whole or in part, upon at least three (3) Business Days irrevocable notice to
the Administrative Agent with respect to Offshore Rate Loans and one (1)
Business Day irrevocable notice with respect to Base Rate Loans, in the form
attached hereto as Exhibit D (a "Notice of Prepayment") specifying the date and
amount of repayment; whether the repayment is of Revolving Credit Loans or
Swingline Loans and whether such loans were made under the 364 Day Facility or
the Five Year Facility, or a combination thereof, and, if a combination, the
amount allocable to each; and whether the repayment is of Offshore Rate Loans,
Base Rate Loans, or a combination thereof, and, if of a combination, the amount
allocable to each. Upon receipt of such notice, the Administrative Agent shall
promptly notify each Lender. If any such notice is given, the amount specified
in such notice shall be due and payable on the date set forth in such notice.
Partial repayments shall be in an aggregate amount of $1,000,000 or a whole
multiple of $500,000 in excess thereof with respect to Base Rate Loans, $250,000
or a whole multiple of $100,000 in excess thereof with respect to Swingline
Loans and $5,000,000 or a whole multiple of $1,000,000 in excess thereof with
respect to Offshore Rate Loans.
(d) Limitation on Repayment of Offshore Rate Loans. The Borrowers
may not repay any Offshore Rate Loan on any day other than on the last day of
the Interest Period applicable thereto unless such repayment is accompanied by
any amount required to be paid pursuant to Section 4.9 hereof.
(e) Limitation on Repayment of Competitive Bid Loans. The
Borrowers may not repay any Competitive Bid Loan on any day other than on the
last day of the Interest Period applicable thereto except, and on such terms, as
agreed to by the Borrower to which the Competitive Bid Loan was made and the
Lender which made such Competitive Bid Loan.
SECTION 2.4 REVOLVING CREDIT NOTES.
Each Lender's Revolving Credit Loans and the obligation of each
Borrower to repay such Revolving Credit Loans shall be evidenced by separate
Revolving Credit Notes executed by each Borrower payable to the order of such
Lender. Each Revolving Credit Note shall be dated the date hereof and shall bear
interest on the unpaid principal amount thereof at the applicable interest rate
per annum specified in Section 4.1.
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SECTION 2.5 COMPETITIVE BID LOANS AND PROCEDURE.
(a) Subject to the terms and conditions set forth herein, from
time to time until the expiration or termination of the Aggregate Revolving
Credit Commitment, each Borrower may request Competitive Bids under the 364 Day
Facility or the Five Year Facility, and may (but shall not have any obligation
to) accept Competitive Bids and borrow Competitive Bid Loans, which shall be
denominated in Dollars, Canadian Dollars or Australian Dollars; provided that
(i) the sum of the aggregate principal Dollar Equivalent amount of outstanding
Revolving Credit Loans made under the 364 Day Facility plus the aggregate
principal Dollar Equivalent amount of outstanding Competitive Bid Loans made
thereunder at any time shall not exceed the 364 Day Facility Commitment and (ii)
the sum of the aggregate principal Dollar Equivalent amount of outstanding
Revolving Credit Loans and Swingline Loans made under the Five Year Facility
plus the aggregate principal Dollar Equivalent amount of outstanding Competitive
Bid Loans made thereunder at any time shall not exceed the Five Year Facility
Commitment less the sum of all outstanding L/C Obligations. To request
Competitive Bids, a Borrower shall notify the Administrative Agent of such
request by telephone, not later than 11:00 a.m. (Charlotte time) one (1)
Business Day before the date of the proposed borrowing; provided that a
Competitive Bid Request shall not be made within five (5) Business Days after
the date of any previous Competitive Bid Request. Each such telephonic
Competitive Bid Request shall be confirmed promptly by hand delivery or telecopy
to the Administrative Agent of a written Competitive Bid Request in a form
approved by the Administrative Agent and signed by the Company. Each such
telephonic and written Competitive Bid Request shall specify the following
information:
(i) the aggregate amount of the requested borrowing, which shall
be a minimum of $5,000,000 (or the Dollar Equivalent thereof) and an
integral multiple of 1,000,000 units of the applicable currency in
excess thereof;
(ii) the date of such borrowing, which shall be a Business Day;
(iii) the Interest Period to be applicable to such borrowing,
which shall be a period contemplated by the definition of the term
"Interest Period";
(iv) whether the borrowing is to be made under the 364 Day
Facility or the Five Year Facility); and
(v) the location and number of the Borrower's account to which
funds are to be disbursed.
Promptly following receipt of a Competitive Bid Request in accordance
with this Section, the Administrative Agent shall notify the Lenders of the
details thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make
one or more Competitive Bids to a Borrower in response to a Competitive Bid
Request. Such Competitive Bids by a Lender may be for an amount greater than (or
less than) such Lender's respective Commitments. Each Competitive Bid by a
Lender must be in a form approved by the
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Administrative Agent and must be received by the Administrative Agent by
telecopy, not later than 9:30 a.m. (Charlotte time) on the proposed date of such
borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be a minimum of $5,000,000 (or the Dollar Equivalent
thereof) and an integral multiple of 1,000,000 units of the applicable currency
in excess thereof and which may equal the entire principal amount of the
borrowing requested by the Borrower) of the Competitive Bid Loan or Loans that
the applicable Lender is willing to make, (ii) the Competitive Bid Rate or Rates
at which such Lender is prepared to make such Loan or Loans (expressed as a
percentage rate per annum in the form of a decimal to no more than four decimal
places) and (iii) the Interest Period applicable to each such Loan and the last
day thereof.
(c) The Administrative Agent shall promptly notify the Borrower
requesting Competitive Bids by telecopy of the Competitive Bid Rate and the
principal amount specified in each Competitive Bid and the identity of the
Lender that shall have made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Borrower
requesting Competitive Bids may accept or reject any Competitive Bid. Such
Borrower shall notify the Administrative Agent by telephone, confirmed by
telecopy in a form approved by the Administrative Agent, whether and to what
extent it has decided to accept or reject each Competitive Bid, not later than
10:30 a.m. (Charlotte time) on the date of the proposed borrowing; provided that
(i) the failure of such Borrower to give such notice shall be deemed to be a
rejection of each Competitive Bid, (ii) such Borrower shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if such Borrower
rejects a Competitive Bid made at a lower Competitive Bid Rate, (iii) the
aggregate amount of the Competitive Bids accepted by such Borrower shall not
exceed the aggregate amount of the requested borrowing specified in the related
Competitive Bid Request, (iv) to the extent necessary to comply with clause
(iii) above, such Borrower may accept Competitive Bids at the same Competitive
Bid Rate in part, which acceptance, in the case of multiple Competitive Bids at
such Competitive Bid Rate, shall be made pro rata in accordance with the amount
of each such Competitive Bid, and (v) except pursuant to clause (iv) above, no
Competitive Bid shall be accepted for a Competitive Bid Loan unless such
Competitive Bid Loan is in a minimum principal amount of $5,000,000 (or the
Dollar Equivalent thereof) and an integral multiple of l,000,000 units of the
applicable currency in excess thereof; provided further that if a Competitive
Bid Loan must be in an amount less than $5,000,000 (or the Dollar Equivalent
thereof) because of the provisions of clause (iv) above, such Competitive Bid
Loan may be for a minimum of 1,000,000 units of the applicable currency or any
integral multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple Competitive Bids at a particular Competitive
Bid Rate pursuant to clause (iv) above the amounts shall be rounded to integral
multiples of 1,000,000 units of the applicable currency in a manner determined
by the Borrower. A notice given by a Borrower pursuant to this paragraph shall
be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding
Lender by telecopy whether or not its Competitive Bid has been accepted (and, if
so, the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the
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terms and conditions hereof, to make the Competitive Bid Loan in respect of
which its Competitive Bid has been accepted.
(f) Not later than 2:00 p.m. (Charlotte time) on the proposed
borrowing date, each Lender whose Competitive Bid has been accepted will make
available to the Administrative Agent, for the account of the Borrower to whom
the Competitive Bid Loan is to be made, at the office of the Administrative
Agent in funds immediately available to the Administrative Agent, the amount of
the Competitive Bid Loan to be made on such borrowing date by such Lender. Each
Borrower hereby irrevocably authorizes the Administrative Agent to disburse the
proceeds of each borrowing requested pursuant to this Section 2.5 in immediately
available funds by crediting or wiring such proceeds to the deposit account of
such Borrower identified in its most recent Notice of Account Designation or as
may be otherwise agreed upon by such Borrower and the Administrative Agent from
time to time. Subject to Section 4.7 hereof, the Administrative Agent shall not
be obligated to disburse the proceeds of any Competitive Bid Loan requested
pursuant to this Section 2.5 for which any Lender is responsible to the extent
that such Lender has not made available to the Administrative Agent the amount
of such Competitive Bid Loan.
(g) If the entity which is the Administrative Agent shall elect to
submit a Competitive Bid in its capacity as a Lender, it shall submit such
Competitive Bid directly to the Borrower requesting Competitive Bids at least
one quarter of an hour earlier than the time by which the other Lenders are
required to submit their Competitive Bids to the Administrative Agent pursuant
to paragraph (b) of this Section.
(h) While any Competitive Bid Loan made under the 364 Day Facility
is outstanding, the 364 Day Facility Commitment of each Lender shall be deemed
used for all purposes by an amount equal to its pro rata share (based on its
respective 364 Day Facility Commitment Percentage) of the principal Dollar
Equivalent amount of such Competitive Bid Loan.
(i) While any Competitive Bid Loan made under the Five Year
Facility is outstanding, the Five Year Facility Commitment of each Lender shall
be deemed used for all purposes by an amount equal to its pro rata share (based
on its respective Five Year Facility Commitment Percentage) of the principal
Dollar Equivalent amount of such Competitive Bid Loan.
(j) (i) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each
Borrower to such Lender resulting from each Competitive Bid Loan made
by such Lender to such Borrower from time to time, including the
amounts of principal and interest payable and paid to such Lender from
time to time hereunder.
(ii) The entries maintained in the accounts maintained pursuant
to paragraph (i) shall be prima facie evidence of the existence and
amounts of the Obligations therein recorded; provided, however, that
the failure of the Administrative Agent or any Lender to maintain such
accounts or any error therein shall not in any manner affect the
obligation of each Borrower to repay the Obligations in accordance with
their terms.
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(iii) The Competitive Bid Loans made by each Lender shall be
evidenced by such Lender's respective Revolving Credit Notes.
(k) Each Borrower shall repay the outstanding principal amount of
each Competitive Bid Loan made to it in full on the last day of the Interest
Period applicable thereto, with all accrued but unpaid interest thereon.
Competitive Bid Loans may not be repaid prior to the last day of the applicable
Interest Period except in accordance with Section 2.3(b) and (e).
SECTION 2.6 SWINGLINE LOANS AND PROCEDURE.
(a) Swingline Commitment. Subject to the terms and conditions set
forth herein, from time to time until the Swingline Termination Date, the
Swingline Lender agrees to make, under the Five Year Facility, a revolving loan
or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline
Loans") to the respective Borrowers, which Swingline Loans (i) shall be
denominated in Dollars, (ii) may be repaid and reborrowed in accordance with the
provisions hereof, (iii) shall not exceed in aggregate principal amount at any
time outstanding, when combined with the sum of the aggregate principal Dollar
Equivalent amount of outstanding Revolving Credit Loans made under the Five Year
Facility plus the aggregate principal amount of Competitive Bid Loans made
thereunder at any time, the Five Year Facility Commitment less the sum of all
outstanding L/C Obligations, (iv) shall not exceed in aggregate principal amount
at any time outstanding the Swingline Commitment and (v) shall bear interest at
a rate mutually agreeable to the Swingline Lender and the applicable Borrower.
Notwithstanding anything to the contrary contained in this Section 2.6(a), (x)
the Swingline Lender shall not be obligated to make any Swingline Loans at a
time when a Lender Default exists unless the Swingline Lender has entered into
arrangements satisfactory to it and the Borrowers to eliminate the Swingline
Lender's risk with respect to the Defaulting Lender's or Lenders' participation
in such Swingline Loans, including by cash collateralizing such Defaulting
Lender's or Lenders' Commitment Percentage of the outstanding Swingline Loans
and (y) the Swingline Lender shall not make any Swingline Loan after it has
received written notice from any Borrower or the Required Lenders stating that a
Default or an Event of Default exists and is continuing until such time as the
Swingline Lender shall have received written notice (A) of rescission of all
such notices from the party or parties originally delivering such notice or (B)
of the waiver of such Default or Event of Default by the Required Lenders.
(b) Mandatory Borrowings.
(i) On any Business Day, the Swingline Lender may, in its sole
discretion, advise the Administrative Agent to give notice to the
Lenders that the Swingline Lender's outstanding Swingline Loans under
the Five Year Facility shall be funded with one or more borrowings of
Revolving Credit Loans denominated in Dollars (provided that such
notice shall be deemed to have been automatically given with respect to
outstanding Swingline Loans upon the occurrence of a Default or an
Event of Default under Section 11.1(i), (j), (k) or (l)), in which case
one or more borrowings of Revolving Credit Loans under the Five Year
Facility constituting Base Rate Loans (each such Borrowing, a
"Mandatory Borrowing") shall be made on the immediately succeeding
Business Day by all Lenders in accordance with each Lender's Commitment
Percentage and the proceeds
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thereof shall be applied directly by the Administrative Agent to repay
the Swingline Lender for such outstanding Swingline Loans. Each Lender
hereby irrevocably agrees to make Revolving Credit Loans upon one
Business Day's notice pursuant to each Mandatory Borrowing in the
amount and in the manner specified in the preceding sentence and on the
date specified in writing by the Administrative Agent notwithstanding
(A) the amount of the Mandatory Borrowing may not comply with the
minimum borrowing amount otherwise required hereunder, (B) whether any
conditions specified in Section 5.4 are then satisfied, (C) whether a
Default or an Event of Default then exists, (D) the date of such
Mandatory Borrowing and (E) the amount of the Five Year Facility
Commitment or the Aggregate Revolving Credit Commitment at such time.
In the event that any Mandatory Borrowing cannot for any reason be made
on the date otherwise required above (including, without limitation, as
a result of the occurrence of a Bankruptcy Event with respect to any
Credit Party), then each Lender hereby agrees that it shall forthwith
purchase (as of the date the Mandatory Borrowing would otherwise have
occurred, but adjusted for any payments received from the respective
Borrower on or after such date and prior to such purchase) from the
Swingline Lender such participations in the outstanding Swingline Loans
made under the Five Year Facility as shall be necessary to cause the
Lenders to share in such Swingline Loans ratably based upon their
respective Commitment Percentages, provided that (x) all interest
payable on the Swingline Loans shall be for the account of the
Swingline Lender until the date as of which the respective
participation is required to be purchased and, to the extent
attributable to the purchased participation, shall be payable to the
participant from and after such date and (y) at the time any purchase
of participations pursuant to this sentence is actually made, the
purchasing Lender shall be required to pay the Swingline Lender
interest on the principal amount of participations purchased for each
day from and including the day upon which the Mandatory Borrowing would
otherwise have occurred to but excluding the date of payment for such
participation, at the overnight Federal Funds Rate for the first three
days and at the rate otherwise applicable to Base Rate Loans hereunder
for each day thereafter.
(ii) To the extent amounts received from the Lenders pursuant to
Section 2.6(b)(i) above are not sufficient to repay in full the
outstanding Swingline Loans requested or required to be repaid, the
Borrowers agree to pay to the Swingline Lender on demand the amount
required to repay such Swingline Loans in full. In addition, each
Borrower hereby authorizes the Administrative Agent to charge any
account maintained by such Borrower with the Swingline Lender (up to
the amount available therein) in order to immediately pay the Swingline
Lender the amount of such Swingline Loans to the extent amounts
received from the Lenders are not sufficient to repay in full the
outstanding Swingline Loans requested or required to be repaid. If any
portion of any such amount paid to the Swingline Lender shall be
recovered by or on behalf of a Borrower from the Swingline Lender in
bankruptcy or otherwise, the loss of the amount so recovered shall be
ratably shared among all the Lenders in accordance with their
respective Commitment Percentages.
(c) Amount of Each Swingline Borrowing. Each Swingline Loan
shall be made in an aggregate principal amount of $500,000 or a whole multiple
of $l00,000 in excess thereof.
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(d) Notice of Borrowing.
(i) A Borrower shall give the Swingline Lender irrevocable prior
written notice (a "Notice of Swingline Borrowing") substantially in the
form attached as Exhibit B-2 no later than 1:00 p.m. (Chicago time) (i)
on the same Business Day as each Base Rate Loan, (ii) at least three
(3) Business Days before each Offshore Rate Loan denominated in Dollars
or (iii) on such other Business Day as may be mutually agreeable to the
Swingline Lender and such Borrower, of its intention to borrow,
specifying (A) the date of such borrowing, which shall be a Business
Day, (B) the amount of such borrowing, which shall be in an amount
equal to the unused amount of the Swingline Commitment or less, (C)
whether such Swingline Loan is to be an Offshore Rate Loan denominated
in Dollars, a Base Rate Loan or a Swingline Loan bearing interest at an
alternative rate mutually agreeable to the Swingline Lender and the
applicable Borrower and (D) in the case of an Offshore Rate Loan, the
duration of the Interest Period applicable thereto. Notices received
after 1:00 p.m. (Chicago time) shall be deemed received on the next
Business Day.
(ii) Mandatory Borrowings shall be made upon the notice
specified in Section 2.6(b), with each Borrower irrevocably agreeing,
by its incurrence of any Swingline Loan, to the making of the Mandatory
Borrowings as set forth in Section 2.6(b).
(e) Disbursement of Funds. Not later than 2:00 p.m. (Chicago time)
on the proposed borrowing date, the Swingline Lender will make available to the
Administrative Agent, for the account of the Borrower to whom the Swingline Loan
is to be made, at the office of the Administrative Agent in funds immediately
available to the Administrative Agent, the amount of the Swingline Loan to be
made on such borrowing date. In the case of Mandatory Borrowings, no later than
2:00 p.m. (Charlotte time) on the date specified in Section 2.6(b), each Lender
will make available to the Administrative Agent, for the account of the
respective Borrower, at the office of the Administrative Agent in funds
immediately available to the Administrative Agent, such Lender's Commitment
Percentage of Mandatory Borrowings to be made on such borrowing date. Each
Borrower hereby irrevocably authorizes the Administrative Agent to disburse the
proceeds of each borrowing requested pursuant to this Section 2.6 in immediately
available funds by crediting or wiring such proceeds to the deposit account of
such Borrower identified in the most recent Notice of Account Designation or as
may be otherwise agreed upon by such Borrower and the Administrative Agent from
time to time or, in the case of Mandatory Borrowings, in the manner specified in
Section 2.6(b)(i). Subject to Section 4.7 hereof, the Administrative Agent shall
not be obligated to disburse the proceeds of any Swingline Loan requested
pursuant to this Section 2.6 to the extent that the Swingline Lender has not
made available to the Administrative Agent the amount of such Swingline Loan.
(f) Notes. The Swingline Lender's Swingline Loans shall be
evidenced by such Lender's respective Revolving Credit Notes.
(g) Usage Under Five Year Facility Commitments. While any
Swingline Loan made under the Five Year Facility is outstanding, the Five Year
Facility Commitment of each Lender
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shall be deemed used for all purposes by an amount equal to its pro rata share
(based on its respective Five Year Facility Commitment Percentage) of the
principal amount of such Swingline Loan.
(h) Notice to the Administrative Agent. The Swingline Lender shall
promptly give notice to the Administrative Agent of all Swingline Loans made
hereunder, and all repayments of such Swingline Loans.
SECTION 2.7 COMMITMENT REDUCTIONS AND INCREASES.
(a) Voluntary Reduction. The Borrowers shall have the right at any
time and from time to time, upon at least four (4) Business Days' prior written
notice to the Administrative Agent, to permanently reduce (except as provided
below), without premium or penalty, (i) (A) the entire 364 Day Facility
Commitment at any time or (B) portions of the 364 Day Facility Commitment from
time to time in an aggregate principal Dollar Equivalent amount not less than
$5,000,000 or any whole multiple of $500,000 in excess thereof or (ii) (A) the
entire Five Year Facility Commitment at any time or (B) portions of the Five
Year Facility Commitment from time to time, in an aggregate principal Dollar
Equivalent amount not less than $5,000,000 or any whole multiple of $500,000 in
excess thereof.
(b) Payments Related to a Voluntary Reduction.
(i) Each permanent reduction of the 364 Day Facility Commitment
made pursuant to this Section 2.7 shall be accompanied, if necessary,
by a payment of principal sufficient to reduce the aggregate
outstanding Revolving Credit Loans made under the 364 Day Facility to
the amount of the new 364 Day Facility Commitment after such reduction
to the 364 Day Facility Commitment. Any reduction of the 364 Day
Facility Commitment to zero (including upon termination of the 364 Day
Facility on the 364 Day Facility Termination Date) shall be accompanied
by payment of all outstanding Revolving Credit Loans made under the 364
Day Facility and shall result in the termination of the 364 Day
Facility Commitment and the 364 Day Facility. If the reduction of the
364 Day Facility Commitment requires the repayment of any Offshore Rate
Loan, such repayment shall be accompanied by any amount required to be
paid pursuant to Section 4.9 hereof. Notwithstanding anything herein to
the contrary, the 364 Day Facility Commitment may not be permanently
reduced by such an amount so that after such reduction, the 364 Day
Facility Commitment is less than the aggregate amount of all unpaid
principal of and interest on outstanding Competitive Bid Loans made
under the 364 Day Facility.
(ii) Each permanent reduction of the Five Year Facility
Commitment made pursuant to this Section 2.7 shall be accompanied, if
necessary, by a payment of principal sufficient to reduce the aggregate
outstanding Revolving Credit Loans and Swingline Loans made under the
Five Year Facility and L/C Obligations, as applicable, to the amount of
the new Five Year Facility Commitment after such reduction to the Five
Year Facility Commitment and, if the Five Year Facility Commitment as
so reduced is less than the aggregate amount of all outstanding Letters
of Credit, the Borrower shall be
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required to deposit in a cash collateral account opened by the
Administrative Agent an amount equal to the amount by which the
aggregate then undrawn and unexpired amount of such Letters of Credit
exceeds the Five Year Facility Commitment as so reduced. Such cash
collateral shall be applied in accordance with Section 11.2(b). Any
reduction of the Five Year Facility Commitment to zero (including upon
termination of the Five Year Facility on the Five Year Facility
Termination Date) shall be accompanied by payment of all outstanding
Revolving Credit Loans and Swingline Loans made under the Five Year
Facility (and furnishing of cash collateral satisfactory to the
Administrative Agent for all L/C Obligations) and shall result in the
termination of the Five Year Facility Commitment and the Five Year
Facility. If the reduction of the Five Year Facility Commitment
requires the repayment of any Offshore Rate Loan, such repayment shall
be accompanied by any amount required to be paid pursuant to Section
4.9 hereof. Notwithstanding anything herein to the contrary, the Five
Year Facility Commitment may not be permanently reduced by such an
amount so that after such reduction, the Five Year Facility Commitment
is less than the aggregate amount of all unpaid principal of and
interest on outstanding Competitive Bid Loans made under the Five Year
Facility.
(c) Commitment Increases. Subject to the terms and conditions set forth
herein, upon 30 days' advance written notice to the Administrative Agent, the
Company shall have the right, at any time and from time to time from the Closing
Date until the termination of the Aggregate Revolving Credit Commitment (but no
more than once a year, with each year for purposes hereof being deemed to begin
at Closing or an anniversary thereof), to increase the Aggregate Revolving
Credit Commitment to up to $400,000,000; provided that (i) the 364 Day Facility
Commitment and the Five Year Facility Commitment shall be increased on a pro
rata basis, (ii) any such increase shall be in a minimum principal amount of
$15,000,000 and an integral multiple of $5,000,000 in excess thereof, (iii) if
any Revolving Credit Loans are outstanding under a Credit Facility at the time
of any such increase, the Company sha