Exhibit 10.47





EXHIBIT 10.47




CREDIT AGREEMENT




Dated as of February 22, 2007




among




TRACTOR SUPPLY COMPANY,

as Borrower,




AND




CERTAIN SUBSIDIARIES OF THE BORROWER

FROM TIME TO TIME PARTY HERETO,

as Guarantors,




THE SEVERAL LENDERS

FROM TIME TO TIME PARTY HERETO




BANK OF AMERICA, N. A.,

as Administrative Agent,




JPMORGAN CHASE BANK, NATIONAL ASSOCIATION

and

U.S. BANK NATIONAL ASSOCIATION,

as Co-Syndication Agents




AND




REGIONS BANK

and

WACHOVIA BANK, NATIONAL ASSOCATION,

as Co-Documentation Agents




BANC OF AMERICA SECURITIES LLC,

as Lead Arranger and Book Manager





 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	SECTION 1 DEFINITIONS
	 	 	1	 
	1.1 DEFINITIONS
	 	 	1	 
	1.2 COMPUTATION OF TIME PERIODS
	 	 	18	 
	1.3 ACCOUNTING TERMS
	 	 	19	 
	 
	 	 	 	 
	SECTION 2 CREDIT FACILITIES
	 	 	19	 
	2.1 REVOLVING LOANS
	 	 	19	 
	2.2 LETTER OF CREDIT SUBFACILITY
	 	 	21	 
	2.3 SWINGLINE LOANS SUBFACILITY
	 	 	27	 
	 
	 	 	 	 
	SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES
	 	 	28	 
	3.1 DEFAULT RATE
	 	 	28	 
	3.2 EXTENSION AND CONVERSION
	 	 	28	 
	3.3 PREPAYMENTS
	 	 	29	 
	3.4 TERMINATION, REDUCTION OR INCREASE OF REVOLVING COMMITTED AMOUNT
	 	 	30	 
	3.5 FEES
	 	 	31	 
	3.6 CAPITAL ADEQUACY
	 	 	32	 
	3.7 LIMITATION ON EURODOLLAR LOANS
	 	 	32	 
	3.8 ILLEGALITY
	 	 	32	 
	3.9 REQUIREMENTS OF LAW
	 	 	33	 
	3.10 TREATMENT OF AFFECTED LOANS
	 	 	34	 
	3.11 TAXES
	 	 	34	 
	3.12 COMPENSATION
	 	 	36	 
	3.13 PRO RATA TREATMENT
	 	 	36	 
	3.15 PAYMENTS, COMPUTATIONS; RETROACTIVE ADJUSTMENTS OF APPLICABLE RATE
	 	 	38	 
	3.16 EVIDENCE OF DEBT
	 	 	40	 
	 
	 	 	 	 
	SECTION 4 GUARANTY
	 	 	40	 
	4.1 THE GUARANTY
	 	 	40	 
	4.2 OBLIGATIONS UNCONDITIONAL
	 	 	41	 
	4.3 REINSTATEMENT
	 	 	42	 
	4.4 CERTAIN ADDITIONAL WAIVERS
	 	 	42	 
	4.5 REMEDIES
	 	 	42	 
	4.6 RIGHTS OF CONTRIBUTION
	 	 	42	 
	4.7 GUARANTEE OF PAYMENT; CONTINUING GUARANTEE
	 	 	43	 
	 
	 	 	 	 
	SECTION 5 CONDITIONS
	 	 	43	 
	5.1 CLOSING CONDITIONS
	 	 	43	 
	5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT
	 	 	45	 
	 
	 	 	 	 
	SECTION 6 REPRESENTATIONS AND WARRANTIES
	 	 	46	 
	6.1 FINANCIAL CONDITION
	 	 	46	 
	6.2 NO MATERIAL CHANGE
	 	 	46	 
	6.3 ORGANIZATION AND GOOD STANDING; COMPLIANCE WITH LAW
	 	 	46	 
	6.4 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS
	 	 	46	 
	6.5 NO CONFLICTS
	 	 	47	 
	6.6 OWNERSHIP
	 	 	47	 
	6.7 [Intentionally Omitted.]
	 	 	47	 
	6.8 LITIGATION
	 	 	47	 






 


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	6.9 TAXES
	 	 	47	 
	6.10 COMPLIANCE WITH LAW
	 	 	47	 
	6.11 ERISA
	 	 	47	 
	6.12 SUBSIDIARIES
	 	 	49	 
	6.13 GOVERNMENTAL REGULATIONS, ETC.
	 	 	49	 
	6.14 PURPOSE OF LOANS AND LETTERS OF CREDIT
	 	 	50	 
	6.15 ENVIRONMENTAL MATTERS
	 	 	50	 
	6.16 INTELLECTUAL PROPERTY
	 	 	51	 
	6.17 SOLVENCY
	 	 	51	 
	6.18 INVESTMENTS
	 	 	51	 
	6.19 DISCLOSURE
	 	 	51	 
	6.20 NO BURDENSOME RESTRICTIONS
	 	 	51	 
	6.21 BROKERS’ FEES
	 	 	51	 
	6.22 LABOR MATTERS
	 	 	51	 
	 
	 	 	 	 
	SECTION 7 AFFIRMATIVE COVENANTS
	 	 	52	 
	7.1 FINANCIAL STATEMENTS
	 	 	52	 
	7.2 PRESERVATION OF EXISTENCE AND FRANCHISES
	 	 	54	 
	7.3 BOOKS AND RECORDS
	 	 	54	 
	7.4 COMPLIANCE WITH LAW
	 	 	54	 
	7.5 PAYMENT OF TAXES AND OTHER INDEBTEDNESS
	 	 	54	 
	7.6 INSURANCE
	 	 	55	 
	7.7 MAINTENANCE OF PROPERTY
	 	 	55	 
	7.8 PERFORMANCE OF OBLIGATIONS
	 	 	55	 
	7.9 USE OF PROCEEDS
	 	 	55	 
	7.10 AUDITS/INSPECTIONS
	 	 	55	 
	7.11 FINANCIAL COVENANTS
	 	 	55	 
	7.12 ADDITIONAL CREDIT PARTIES
	 	 	56	 
	7.13 ENVIRONMENTAL LAWS
	 	 	56	 
	 
	 	 	 	 
	SECTION 8 NEGATIVE COVENANTS
	 	 	57	 
	8.1 INDEBTEDNESS
	 	 	57	 
	8.2 LIENS
	 	 	57	 
	8.3 NATURE OF BUSINESS
	 	 	57	 
	8.4 CONSOLIDATION, MERGER, DISSOLUTION, ETC.
	 	 	58	 
	8.5 ASSET DISPOSITIONS
	 	 	58	 
	8.6 INVESTMENTS
	 	 	58	 
	8.7 RESTRICTED PAYMENTS
	 	 	58	 
	8.8 PREPAYMENTS OF INDEBTEDNESS, ETC.
	 	 	58	 
	8.9 TRANSACTIONS WITH AFFILIATES
	 	 	59	 
	8.10 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS
	 	 	59	 
	8.11 LIMITATION ON RESTRICTED ACTIONS
	 	 	59	 
	8.12 OWNERSHIP OF SUBSIDIARIES
	 	 	59	 
	8.13 SALE LEASEBACKS
	 	 	59	 
	8.14 NO FURTHER NEGATIVE PLEDGES
	 	 	60	 
	 
	 	 	 	 
	SECTION 9 EVENTS OF DEFAULT
	 	 	60	 
	9.1 EVENTS OF DEFAULT
	 	 	60	 
	9.2 ACCELERATION; REMEDIES
	 	 	62	 






 


ii 









 





	 	 	 	 	 
	SECTION 10 AGENCY PROVISIONS
	 	 	63	 
	10.1 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT
	 	 	63	 
	10.2 RIGHTS AS A LENDER
	 	 	63	 
	10.3 DELEGATION OF DUTIES
	 	 	63	 
	10.4 EXCULPATORY PROVISIONS
	 	 	64	 
	10.5 RELIANCE BY ADMINISTRATIVE AGENT
	 	 	64	 
	10.6 RESIGNATION OF ADMINISTRATIVE AGENT
	 	 	65	 
	10.7 NON-RELIANCE BY ADMINISTRATIVE AGENT AND OTHER LENDERS
	 	 	65	 
	10.8 NO OTHER DUTIES, ETC.
	 	 	66	 
	10.9 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM
	 	 	66	 
	10.10 GUARANTY MATTERS
	 	 	66	 
	 
	 	 	 	 
	SECTION 11 MISCELLANEOUS
	 	 	67	 
	11.1 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATIONS
	 	 	67	 
	11.2 RIGHT OF SET-OFF
	 	 	69	 
	11.3 SUCCESSORS AND ASSIGNS
	 	 	69	 
	11.4 NO WAIVER; REMEDIES CUMULATIVE
	 	 	73	 
	11.5 EXPENSES; INDEMNITY; DAMAGE WAIVER
	 	 	73	 
	11.6 AMENDMENTS, WAIVERS AND CONSENTS
	 	 	74	 
	11.7 COUNTERPARTS
	 	 	75	 
	11.8 HEADINGS
	 	 	75	 
	11.9 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
	 	 	75	 
	11.10 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE
	 	 	76	 
	11.11 SEVERABILITY
	 	 	77	 
	11.12 ENTIRETY
	 	 	77	 
	11.13 BINDING EFFECT; TERMINATION
	 	 	77	 
	11.14 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY
	 	 	77	 
	11.15 USE OF SOURCES
	 	 	78	 
	11.16 CONFLICT
	 	 	78	 
	11.17 US PATRIOT ACT NOTICE
	 	 	78	 
	11.18 NO ADVISORY OR FIDUCIARY RESPONSIBILITY
	 	 	79	 
	11.19 REPLACEMENT OF LENDERS
	 	 	79	 






 


iii 









 





	 	 	 
	SCHEDULES
	 
	 	 
	Schedule 1.1(a)

	 	Existing Letters of Credit
	Schedule 1.1(b)

	 	Liens
	Schedule 2.1(a)

	 	Lenders
	Schedule 6.12

	 	Subsidiaries
	Schedule 6.22

	 	Labor Matters
	Schedule 8.1

	 	Indebtedness
	Schedule 8.9

	 	Transactions with Affiliates
	Schedule 11.1

	 	Notices
	 
	 	 
	EXHIBITS
	 
	 	 
	Exhibit 2.1(b)(i)

	 	Form of Notice of Borrowing
	Exhibit 2.1(e)

	 	Form of Revolving Note
	Exhibit 2.3(b)

	 	Form of Swingline Loan Request
	Exhibit 2.3(e)

	 	Form of Swingline Note
	Exhibit 3.2

	 	Form of Notice of Extension/Conversion
	Exhibit 7.1(c)

	 	Form of Officer’s Compliance Certificate
	Exhibit 7.12

	 	Form of Joinder Agreement
	Exhibit 11.3

	 	Form of Assignment and Acceptance






 


iv 









 





CREDIT AGREEMENT




THIS CREDIT AGREEMENT, dated as of February 22, 2007 (as amended,
modified, restated or supplemented from time to time, the “CREDIT AGREEMENT”),
is by and among TRACTOR SUPPLY COMPANY, a Delaware corporation (the “BORROWER”),
the Subsidiary Guarantors (as defined herein), the Lenders (as defined herein)
and BANK OF AMERICA, N.A., as Administrative Agent for the Lenders (in such
capacity, the “ADMINISTRATIVE AGENT”).



W I T N E S S E T H




WHEREAS, the Borrower has requested that the Lenders provide a
$250,000,000 credit facility for the purposes hereinafter set forth; and



WHEREAS, the Lenders have agreed to make the requested credit facility
available to the Borrower on the terms and conditions hereinafter set forth;



NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:



SECTION 1




DEFINITIONS




1.1 DEFINITIONS.



As used in this Credit Agreement, the following terms shall have the
meanings specified below unless the context otherwise requires:




“30-DAY INTERBANK OFFERED RATE” means, for any Swingline Loan,
the rate per annum (rounded, if necessary, to the nearest one-one
hundredth (1/100) of one percent) appearing each day on Page 3750 (or
any successor page) of the Dow Jones Market Service as the London
interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) for a term of thirty (30) days. If for any reason
such rate is not available, the term “30-Day Interbank Offered Rate”
shall mean the rate per annum (rounded, if necessary, to the nearest
1/100 of 1%) appearing each day on Reuters Screen LIBO Page as the
London interbank offered rate for deposits in Dollars at approximately
11:00 a.m. (London time) for a term of thirty (30) days; PROVIDED,
HOWEVER, if more than one rate is specified on Reuters Screen LIBO Page,
the applicable rate shall be the arithmetic mean of all such rates
(rounded, if necessary, to the nearest 1/100 of 1%). As to any date on
which no such rates are available, the term “30-Day Interbank Offered
Rate” shall mean such rate as determined on the next proceeding Business
Day when such rate was determinable.




“ADDITIONAL CREDIT PARTY” means each Person that becomes a
Subsidiary Guarantor after the Closing Date by execution of a Joinder
Agreement.




“ADJUSTED BASE RATE” means the Base Rate PLUS the Applicable
Percentage.




“ADJUSTED EURODOLLAR RATE” means the Eurodollar Rate PLUS the
Applicable Percentage.





 


1









 






“ADMINISTRATIVE AGENT” shall have the meaning assigned to such
term in the heading hereof, together with any successors or assigns.




“ADMINISTRATIVE QUESTIONNAIRE” means an Administrative
Questionnaire in a form supplied by the Administrative Agent.




“AFFILIATE” means, with respect to any Person, any other Person
(i) directly or indirectly controlling or controlled by or under direct
or indirect common control with such Person or (ii) directly or
indirectly owning or holding five percent (5%) or more of the Capital
Stock in such Person. For purposes of this definition, “control” when
used with respect to any Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to the
foregoing.




“AGENT-RELATED PERSONS” means the Administrative Agent, together
with its Affiliates (including, at such times as Bank of America is the
Administrative Agent, the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.




“APPLICABLE LENDING OFFICE” means, for each Lender, the office
of such Lender (or of an Affiliate of such Lender) as such Lender may
from time to time specify to the Administrative Agent and the Borrower
by written notice as the office by which its Eurodollar Loans are made
and maintained.




“APPLICABLE PERCENTAGE” means, for purposes of calculating the
applicable interest rate for any day for any Revolving Loan, the
applicable rate for any day for any Swingline Loan, the applicable rate
of the Unused Fee for any day for purposes of Section 3.5(a), the
applicable rate of the Standby Letter of Credit Fee for any day for
purposes of Section 3.5(b)(i) or the applicable rate for the Trade
Letter of Credit Fee for any day for purposes of Section 3.5(b)(ii), the
appropriate applicable percentage corresponding to the Leverage Ratio in
effect as of the most recent Calculation Date:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	APPLICABLE	 	 	APPLICABLE	 	 	APPLICABLE	 	 	APPLICABLE	 	 	 	 
	 	 	 	 	PERCENTAGE FOR	 	 	PERCENTAGE	 	 	PERCENTAGE FOR	 	 	PERCENTAGE FOR	 	 	APPLICABLE	 
	 	 	LEVERAGE	 	EURODOLLAR LOANS	 	 	FOR BASE RATE	 	 	STANDBY LETTER	 	 	TRADE LETTER	 	 	PERCENTAGE FOR	 
	PRICING LEVEL	 	RATIO	 	AND SWINGLINE LOANS	 	 	LOANS	 	 	OF CREDIT FEES	 	 	OF CREDIT FEES	 	 	UNUSED FEES	 
	I	 	= 3.5
	 	 	0.90	%	 	 	0.0	%	 	 	0.90	%	 	 	0.25	%	 	 	0.175	%
	II	 	= 3.0 but < 3.5
	 	 	0.75	%	 	 	0.0	%	 	 	0.75	%	 	 	0.25	%	 	 	0.15	%
	III	 	= 2.5 but < 3.0
	 	 	0.60	%	 	 	0.0	%	 	 	0.60	%	 	 	0.25	%	 	 	0.125	%
	IV	 	= 2.0 but < 2.5
	 	 	0.50	%	 	 	0.0	%	 	 	0.50	%	 	 	0.25	%	 	 	0.10	%
	V	 	= 1.5 but < 2.0
	 	 	0.40	%	 	 	0.0	%	 	 	0.40	%	 	 	0.25	%	 	 	0.075	%
	VI	 	< 1.5
	 	 	0.35	%	 	 	0.0	%	 	 	0.35	%	 	 	0.25	%	 	 	0.06	%







The Applicable Percentages shall be determined and adjusted quarterly on
the date (each a “CALCULATION DATE”) five Business Days after the date
by which the Borrower is required to


 


2









 






provide the officer’s certificate in accordance with the provisions of
Section 7.1(c) for the most recently ended fiscal quarter of the
Consolidated Parties; PROVIDED, HOWEVER, (i) the initial Applicable
Percentages shall be based on Pricing Level IV and shall remain at
Pricing Level IV until the first Calculation Date to occur subsequent to
June 30, 2007 and (ii) if the Borrower fails to provide the officer’s
certificate as required by Section 7.1(c) for the last day of the most
recently ended fiscal quarter of the Consolidated Parties, the
Applicable Percentage from such Calculation Date shall be based on
Pricing Level I until such time as an appropriate officer’s certificate
is provided, whereupon the Applicable Percentage shall be determined by
the Leverage Ratio as of the last day of the most recently ended fiscal
quarter of the Consolidated Parties preceding such Calculation Date.
Each Applicable Percentage shall be effective from one Calculation Date
until the next Calculation Date. Any adjustment in the Applicable
Percentages shall be applicable to all existing Loans as well as any new
Loans made or issued.




“APPROVED FUND” means any Fund that is administered or managed
by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an
Affiliate of an entity that administers or manages a Lender.




“ARRANGER” means Banc of America Securities LLC, in its capacity
as sole lead arranger and sole book manager.




“ASSIGNEE GROUP” means two or more Eligible Assignees that are
Affiliates of one another or two or more Approved Funds managed by the
same investment advisor.




“ASSIGNMENT AND ASSUMPTION” means an assignment and assumption
entered into by a Lender and an assignee (with the consent of any party
whose consent is required by Section 11.3(b)), and accepted by the
Administrative Agent, in substantially the form of EXHIBIT 11.3 or any
other form approved by the Administrative Agent.




“BANK OF AMERICA” means Bank of America, N.A. and its
successors.




“BANKRUPTCY CODE” means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.




“BANKRUPTCY EVENT” means, with respect to any Person, the
occurrence of any of the following with respect to such Person: (i) a
court or governmental agency having jurisdiction in the premises shall
enter a decree or order for relief in respect of such Person in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or
ordering the winding up or liquidation of its affairs; or (ii) there
shall be commenced against such Person an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or any case, proceeding or other action for the appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of such Person or for any substantial part of its
Property or for the winding up or liquidation of its affairs, and such
involuntary case or other case, proceeding or other action shall remain
undismissed, undischarged or unbonded for a period of sixty (60)
consecutive days; or (iii) such Person shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in
an involuntary case under any such law, or consent to the appointment or
taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or make any general assignment for the
benefit of creditors; or (iv) such Person shall admit in writing its
inability to pay its debts generally as they become due.



 


3









 






“BASE RATE” means for any day a fluctuating rate per annum equal
to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the
rate of interest in effect for such day as publicly announced from time
to time by Bank of America as its “prime rate.” The “prime rate” is a
rate set by Bank of America based upon various factors including Bank of
America’s costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some loans,
which may be priced at, above, or below such announced rate. Any change
in such rate announced by Bank of America shall take effect at the
opening of business on the day specified in the public announcement of
such change.




“BASE RATE LOAN” means any Loan bearing interest at a rate
determined by reference to the Base Rate.




“BORROWER” means the Person identified as such in the heading
hereof, together with any permitted successors and assigns.




“BORROWER MATERIALS” shall have the meaning assigned to such
term in Section 7.1.




“BUSINESS DAY” means a day other than a Saturday, Sunday or
other day on which commercial banks in Charlotte, North Carolina or
Nashville, Tennessee are authorized or required by law to close, EXCEPT
THAT, when used in connection with a Eurodollar Loan, such day shall
also be a day on which dealings between banks are carried on in Dollar
deposits in London, England.




“CAPITAL LEASE” means, as applied to any Person, any lease of
any Property (whether real, personal or mixed) by that Person as lessee
which, in accordance with GAAP, is or should be accounted for as a
capital lease on the balance sheet of that Person.




“CAPITAL STOCK” means (i) in the case of a corporation, capital
stock, (ii) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents
(however designated) of capital stock, (iii) in the case of a
partnership, partnership interests (whether general or limited), (iv) in
the case of a limited liability company, membership interests and (v)
any other interest or participation that confers on a Person (other than
a corporation) the right to receive a share of the profits and losses
of, or distributions of assets of, the issuing Person.




“CASH EQUIVALENTS” means (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support thereof)
having maturities of not more than twelve months from the date of
acquisition, (b) Dollar denominated time deposits and certificates of
deposit of (i) any Lender, (ii) any domestic commercial bank of
recognized standing having capital and surplus in excess of $500,000,000
or (iii) any bank whose short-term commercial paper rating from S&P is
at least A-1 or the equivalent thereof or from Moody’s is at least P-1
or the equivalent thereof (any such bank being an “APPROVED BANK”), in
each case with maturities of not more than 270 days from the date of
acquisition, (c) commercial paper and variable or fixed rate notes
issued by any Approved Bank (or by the parent company thereof) or any
variable rate notes issued by, or guaranteed by, any domestic
corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody’s and maturing within
six months of the date of acquisition, (d) repurchase agreements entered
into by any Person with a bank or trust company (including any of the
Lenders) or recognized securities dealer having capital and surplus in
excess of $500,000,000 for direct obligations issued by or fully
guaranteed by the United States of America in which such Person shall
have a perfected first priority security interest (subject to no


 


4









 






other Liens) and having, on the date of purchase thereof, a fair market
value of at least 100% of the amount of the repurchase obligations and
(e) Investments, classified in accordance with GAAP as current assets,
in money market investment programs registered under the Investment
Company Act of 1940, as amended, which are administered by reputable
financial institutions having capital of at least $500,000,000 and the
portfolios of which are limited to Investments of the character
described in the foregoing subdivisions (a) through (d).




“CHANGE OF CONTROL” means the occurrence of any of the following
events: (i) any Person or two or more Persons acting in concert shall
have acquired “beneficial ownership,” directly or indirectly, of, or
shall have acquired by contract or otherwise, or shall have entered into
a contract or arrangement that, upon consummation, will result in its or
their acquisition of, control over, Voting Stock of the Borrower (or
other securities convertible into such Voting Stock) representing 30% or
more of the combined voting power of all Voting Stock of the Borrower,
or (ii) a majority of the members of the Board of Directors of the
Borrower cease to be Continuing Directors.




“CLOSING DATE” means the date hereof.




“CODE” means the Internal Revenue Code of 1986, as amended, and
any successor statute thereto, as interpreted by the rules and
regulations issued thereunder, in each case as in effect from time to
time. References to sections of the Code shall be construed also to
refer to any successor sections.




“COMMITMENT” means the Revolving Commitment, the Swingline
Commitment and the LOC Commitment.




“CONSOLIDATED CASH TAXES” means, for any period, the aggregate
of all federal, state, local and foreign income, franchise, withholding,
value added and similar taxes of the Consolidated Parties on a
consolidated basis for such period, as determined in accordance with
GAAP, to the extent the same are paid in cash during such period.




“CONSOLIDATED EBITDA” means, for any period, the sum of (a)
Consolidated Net Income for such period, plus (b) an amount which, in
the determination of Consolidated Net Income for such period, has been
deducted for (i) Consolidated Interest Expense, (ii) total federal,
state, local and foreign income, value added and similar taxes, (iii)
depreciation and amortization expense, (iv) non-cash stock-based
compensation expenses, (v) non-cash straight line rent expense and (vi)
other non-recurring, non-cash expenses (excluding any non-cash expense
to the extent that it represents an accrual of or reserve for cash
expenses in any future period), all as determined in accordance with
GAAP.




“CONSOLIDATED EBITDAR” means, for any period, the sum of (a)
Consolidated EBITDA for such period, plus (b) Consolidated Rental
Expense for such period.




“CONSOLIDATED INTEREST EXPENSE” means, for any period, all
interest expense (including the interest component under Capital Leases
and Synthetic Leases) of the Consolidated Parties on a consolidated
basis for such period, as determined in accordance with GAAP. For
purposes of clarification, the implied interest component under
Synthetic Leases shall be considered interest expense for purposes of
this definition.




“CONSOLIDATED PARTIES” means a collective reference to the
Borrower and its Subsidiaries, and “CONSOLIDATED PARTY” means any one of
them.


 


5









 






“CONSOLIDATED NET INCOME” means, for any period, net income
(excluding extraordinary gains and other non-recurring gains and losses)
after taxes for such period of the Consolidated Parties on a
consolidated basis, as determined in accordance with GAAP.




“CONSOLIDATED RENTAL EXPENSE” means, for any period, cash rental
expense under Operating Leases (excluding any Synthetic Lease) of the
Consolidated Parties on a consolidated basis for such period, as
determined in accordance with GAAP.




“CONSOLIDATED TANGIBLE ASSETS” means, as of any date of
determination, all assets of the Consolidated Parties on a consolidated
basis as of such date MINUS all intangible assets of the Consolidated
Parties on a consolidated basis as of such date, all as determined in
accordance with GAAP.




“CONTINUING DIRECTOR” means, as of any date of determination,
any member of the Board of Directors of the Borrower who (a) was a
member of the same Board of Directors on the Closing Date or (b) was
nominated for election or elected to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of
such Board of Directors at the time of such nomination or election.




“CREDIT DOCUMENTS” means a collective reference to this Credit
Agreement, the Notes, the LOC Documents, each Joinder Agreement, the
Administrative Agent’s Fee Letter and all other related agreements and
documents issued or delivered hereunder or thereunder or pursuant hereto
or thereto (in each case as the same may be amended, modified, restated,
supplemented, extended, renewed or replaced from time to time), and
“CREDIT DOCUMENT” means any one of them.




“CREDIT PARTIES” means a collective reference to the Borrower
and the Guarantors, and “CREDIT PARTY” means any one of them.




“CREDIT PARTY OBLIGATIONS” means, without duplication, (i) all
of the obligations of the Credit Parties to the Lenders (including the
Issuing Lender and the Swingline Lender) and the Administrative Agent,
whenever arising, under this Credit Agreement, the Notes or any of the
other Credit Documents (including, but not limited to, any interest
accruing after the occurrence of a Bankruptcy Event with respect to any
Credit Party, regardless of whether such interest is an allowed claim
under the Bankruptcy Code) and (ii) all liabilities and obligations,
whenever arising, owing from the Borrower to any Lender, or any
Affiliate of a Lender, arising under any Hedging Agreement relating to
the Revolving Obligations hereunder.




“DEFAULT” means any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.




“DEFAULTING LENDER” means, at any time, any Lender or Issuing
Lender that (a) has failed to make a Loan or purchase a Participation
Interest required pursuant to the term of this Credit Agreement within
one Business Day of when due, (b) has breached Section 2.2, has failed
to honor a Letter of Credit as required by its terms in accordance with
Section 2.2 or has refused to issue a Letter of Credit pursuant to
Section 2.2(a)(ii)(B), (c) other than as set forth in (a) and (b) above,
has failed to pay to the Administrative Agent or any Lender an amount
owed by such Lender pursuant to the terms of this Credit Agreement
within one Business Day of when due, unless such amount is subject to a
good faith dispute or (d) has been deemed insolvent or has become
subject to a bankruptcy or insolvency proceeding or with respect to
which (or with respect to any of assets of which) a receiver, trustee or
similar official has been appointed.


 


6









 






“DOLLARS” and “$” means dollars in lawful currency of the United
States of America.




“DOMESTIC SUBSIDIARY” means, with respect to any Person, any
Subsidiary of such Person which is incorporated or organized under the
laws of any State of the United States or the District of Columbia.




“ELIGIBLE ASSIGNEE” means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) an Approved Fund; and (iv) any other Person (other than a
natural person) approved by the Administrative Agent, the Issuing Lender
and the Swingline Lender and, unless an Event of Default has occurred
and is continuing at the time any assignment is effected in accordance
with Section 11.3, the Borrower (such approval not to be unreasonably
withheld or delayed); PROVIDED, notwithstanding the foregoing, “Eligible
Assignee” shall not include the Borrower or any of the Borrower’s
Affiliates or Subsidiaries.




“ENVIRONMENTAL LAWS” means any and all lawful and applicable
Federal, state, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions,
grants, franchises, licenses, agreements or other governmental
restrictions relating to the environment or to emissions, discharges,
releases or threatened releases of pollutants, contaminants, chemicals,
or industrial, toxic or hazardous substances or wastes into the
environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport,
or handling of pollutants, contaminants, chemicals, or industrial, toxic
or hazardous substances or wastes.




“ERISA” means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, all as the same may be in effect
from time to time. References to sections of ERISA shall be construed
also to refer to any successor sections.




“ERISA AFFILIATE” means an entity which is under common control
with any Consolidated Party within the meaning of Section 4001(a)(14) of
ERISA, or is a member of a group which includes any Consolidated Party
and which is treated as a single employer under Sections 414(b) or (c)
of the Code.




“ERISA EVENT” means (i) with respect to any Plan, the occurrence
of a Reportable Event or the substantial cessation of operations (within
the meaning of Section 4062(e) of ERISA); (ii) the withdrawal by any
Consolidated Party or any ERISA Affiliate from a Multiple Employer Plan
during a plan year in which it was a substantial employer (as such term
is defined in Section 4001(a)(2) of ERISA), or the termination of a
Multiple Employer Plan; (iii) the distribution of a notice of intent to
terminate or the actual termination of a Plan pursuant to Section
4041(a)(2) or 4041A of ERISA; (iv) the institution of proceedings to
terminate or the actual termination of a Plan by the PBGC under Section
4042 of ERISA; (v) any event or condition which might constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan; (vi) the complete or partial
withdrawal of any Consolidated Party or any ERISA Affiliate from a
Multiemployer Plan; (vii) the conditions for imposition of a lien under
Section 302(f) of ERISA exist with respect to any Plan; or (viii) the
adoption of an amendment to any Plan requiring the provision of security
to such Plan pursuant to Section 307 of ERISA.




“EURODOLLAR LOAN” means any Loan that bears interest at a rate
based upon the Eurodollar Rate.


 


7









 






“EURODOLLAR RATE” means for any Interest Period with respect to
any Eurodollar Loan, a rate per annum determined by the Administrative
Agent pursuant to the following formula:



	 	 	 	 
	 	Eurodollar Rate   =  

	EURODOLLAR BASE RATE
	 
	 	1.00 — Eurodollar Reserve Percentage	 







Where,




“EURODOLLAR BASE RATE” means, for such Interest Period, the rate
per annum equal to the British Bankers Association LIBOR Rate (“BBA
LIBOR”), as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by the Administrative
Agent from time to time) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, for
Dollar deposits (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period. If such rate is not
available at such time for any reason, then the “Eurodollar Base Rate”
for such Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for
delivery on the first day of such Interest Period in same day funds in
the approximate amount of the Eurodollar Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest
Period would be offered by Bank of America’s London Branch to major
banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.




“EURODOLLAR RESERVE PERCENTAGE” means, for any day during any
Interest Period, the reserve percentage (expressed as a decimal, carried
out to five decimal places) in effect on such day, whether or not
applicable to any Lender, under regulations issued from time to time by
the FRB for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with
respect to Eurocurrency funding (currently referred to as “Eurocurrency
liabilities”). The Eurodollar Rate for each outstanding Eurodollar Loan
shall be adjusted automatically as of the effective date of any change
in the Eurodollar Reserve Percentage.




“EVENT OF DEFAULT” shall have the meaning as defined in Section
9.1.




“EXISTING LETTERS OF CREDIT” means the letters of credit
described by letter of credit number, undrawn amount, name of
beneficiary and date of expiry on SCHEDULE 1.1(A) attached hereto.




“FEES” means all fees payable pursuant to Section 3.5.




“FEDERAL FUNDS RATE” means, for any day, the rate per annum
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank on the Business Day next succeeding such day; PROVIDED that (a) if
such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate (rounded, if
necessary, to the nearest 1/100 of 1%) charged to the Administrative
Agent (in its individual capacity) on such day on such transactions as
determined by the Administrative Agent.


 


8









 






“FIXED CHARGE COVERAGE RATIO” means, with respect to the
Consolidated Parties on a consolidated basis, as of the end of each
fiscal quarter of the Consolidated Parties for the twelve month period
ending on such date, the ratio of (a) the sum of (i) Consolidated
EBITDAR for the applicable period minus (ii) Consolidated Cash Taxes for
the applicable period to (b) the sum of (i) the cash portion of
Consolidated Interest Expense for the applicable period PLUS (ii)
Scheduled Funded Debt Payments for the applicable period PLUS (iii)
Consolidated Rental Expense for the applicable period PLUS (iv) cash
dividends paid by the Borrower during the applicable period.




“FOREIGN LENDER” shall have the meaning assigned to such term in
Section 3.11(d).




“FOREIGN SUBSIDIARY” means, with respect to any Person, any
Subsidiary of such Person which is not a Domestic Subsidiary of such
Person.




“FRB” means the Board of Governors of the Federal Reserve System
of the United States.




“FUND” means any Person (other than a natural person) that is
(or will be) engaged in making, purchasing, holding or otherwise
investing in commercial loans or similar extensions of credit in the
ordinary course of its activities.




“FUNDED INDEBTEDNESS” means, with respect to any Person, without
duplication, (a) all Indebtedness of such Person other than Indebtedness
of the types referred to in clause (e), (f), (g), (i), and (l) of the
definition of “Indebtedness” set forth in this Section 1.1, (b) all
Indebtedness of another Person of the type referred to in clause (a)
above secured by (or for which the holder of such Funded Indebtedness
has an existing right, contingent or otherwise, to be secured by) any
Lien on, or payable out of the proceeds of production from, Property
owned or acquired by such Person, whether or not the obligations secured
thereby have been assumed, (c) all Guaranty Obligations of such Person
with respect to Indebtedness of the type referred to in clause (a) above
of another Person and (d) Indebtedness of the type referred to in clause
(a) above of any partnership or unincorporated joint venture in which
such Person is a general partner or a joint venturer.




“GAAP” means generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of
Section 1.3.




“GOVERNMENTAL AUTHORITY” means any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or
regulatory body.




“GUARANTORS” means a collective reference to each of the
Subsidiary Guarantors and “GUARANTOR” means any one of them.




“GUARANTY OBLIGATIONS” means, with respect to any Person,
without duplication, any obligations of such Person (other than
endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) guaranteeing or intended to
guarantee any Indebtedness of any other Person in any manner, whether
direct or indirect, and including without limitation any obligation,
whether or not contingent, (a) to purchase any such Indebtedness or any
Property constituting security therefor, (b) to advance or provide funds
or other support for the payment or purchase of any such Indebtedness or
to maintain working capital, solvency or other balance sheet condition
of such other Person (including without limitation keep well agreements,
maintenance agreements, comfort letters or similar agreements or
arrangements) for the benefit of any holder of Indebtedness of such
other Person, (c) to lease or purchase Property, securities or services
primarily for the purpose of assuring the holder of such Indebtedness,
or (d) to otherwise assure or hold harmless the holder of such
Indebtedness against loss in respect thereof. The amount of any


 


9









 






Guaranty Obligation hereunder shall (subject to any limitations set
forth therein) be deemed to be an amount equal to the outstanding
principal amount (or maximum principal amount, if larger) of the
Indebtedness in respect of which such Guaranty Obligation is made.




“HEDGING AGREEMENTS” means any interest rate protection
agreement or foreign currency exchange agreement.




“INDEBTEDNESS” means, with respect to any Person, without
duplication, (a) all obligations of such Person for borrowed money, (b)
all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, or upon which interest payments are customarily
made, (c) all obligations of such Person under conditional sale or other
title retention agreements relating to Property purchased by such Person
(other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of
business), (d) all obligations of such Person issued or assumed as the
deferred purchase price of Property or services purchased by such Person
(other than trade debt incurred in the ordinary course of business and
due within six months of the incurrence thereof) which would appear as
liabilities on a balance sheet of such Person, (e) all obligations of
such Person under take-or-pay or similar arrangements or under
commodities agreements, (f) all Indebtedness of others secured by (or
for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out
of the proceeds of production from, Property owned or acquired by such
Person, whether or not the obligations secured thereby have been
assumed, (g) all Guaranty Obligations of such Person, (h) the principal
portion of all obligations of such Person under Capital Leases, (i) all
obligations of such Person under Hedging Agreements, (j) the maximum
amount of all standby letters of credit issued or bankers’ acceptances
facilities created for the account of such Person and, without
duplication, all drafts drawn thereunder (to the extent unreimbursed),
(k) the principal portion of all obligations of such Person under
Synthetic Leases and (l) the Indebtedness of any partnership or
unincorporated joint venture in which such Person is a general partner
or a joint venturer.




“INDEMNIFIED PARTY” has the meaning specified in Section
11.5(b).




“INTEREST PAYMENT DATE” means (a) as to Base Rate Loans, the
last day of each calendar month, the date of repayment of principal of
such Loan and the Maturity Date, and (b) as to Eurodollar Loans, the
last day of each applicable Interest Period, the date of repayment of
principal of such Loan and the Maturity Date, and in addition, where the
applicable Interest Period for a Eurodollar Loan is greater than three
months, then also the date three months from the beginning of the
Interest Period and each three months thereafter.




“INTEREST PERIOD” means, as to Eurodollar Loans, a period of
one, two, three or six months’ duration, as the Borrower may elect,
commencing, in each case, on the date of the borrowing (including
continuations and conversions thereof); PROVIDED, HOWEVER, (a) if any
Interest Period would end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day
(except that where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding Business Day), (b)
no Interest Period shall extend beyond the Maturity Date, and (c) where
an Interest Period begins on a day for which there is no numerically
corresponding day in the calendar month in which the Interest Period is
to end, such Interest Period shall end on the last Business Day of such
calendar month.




“INVESTMENT” means (a) the acquisition (whether for cash,
property, services, assumption of Indebtedness, securities or otherwise)
of all or any substantial portion of the assets, Capital Stock, bonds,
notes, debentures, partnership, joint ventures or other ownership
interests or other securities of any Person or (b) any deposit with, or
advance, loan or other extension of credit to, any Person (other


 


10









 






than deposits made in connection with the purchase of equipment or other
assets in the ordinary course of business) or (c) any other capital
contribution to or investment in any Person, including, without
limitation, any Guaranty Obligations (including any support for a letter
of credit issued on behalf of such Person) incurred for the benefit of
such Person.




“ISSUING LENDER” means Bank of America, or any successor issuer
of Letters of Credit hereunder.




“ISSUING LENDER FEES” shall have the meaning assigned to such
term in Section 3.5(b)(ii).




“JOINDER AGREEMENT” means a Joinder Agreement substantially in
the form of EXHIBIT 7.12 hereto, executed and delivered by an Additional
Credit Party in accordance with the provisions of Section 7.12.




“L/C ADVANCE” means, with respect to each Lender, such Lender’s
funding of its participation in any L/C Borrowing in accordance with its
pro rata share (based on the respective Revolving Commitment Percentage
of such Lender).




“L/C BORROWING” means an extension of credit resulting from a
drawing under any Letter of Credit which has not been reimbursed on the
date when made or refinanced by a Revolving Loan advance.




“L/C CREDIT EXTENSION” means, with respect to any Letter of
Credit, the issuance thereof or extension of the expiry date thereof, or
the renewal or increase of the amount thereof.




“LENDER” means any of the Persons identified as a “Lender” on
the signature pages hereto, and any Person which may become a Lender in
accordance with the terms hereof, together with their successors and
permitted assigns.




“LETTER OF CREDIT” means (a) any letter of credit issued by the
Issuing Lender for the account of the Borrower in accordance with the
terms of Section 2.2 and (b) any Existing Letter of Credit.




“LETTER OF CREDIT APPLICATION” means an application and
agreement for the issuance or amendment of a Letter of Credit in the
form from time to time in use by the Issuing Lender.




“LETTER OF CREDIT EXPIRATION DATE” means the day that is seven
days prior to the Maturity Date then in effect (or, if such day is not a
Business Day, the next preceding Business Day).




“LEVERAGE RATIO” means, with respect to the Consolidated Parties
on a consolidated basis for the twelve month period ending on the last
day of any fiscal quarter, the ratio of (a) the sum of (i) Funded
Indebtedness of the Consolidated Parties on the last day of such period
PLUS (ii) Consolidated Rental Expense for such period multiplied by six
to (b) the sum of (i) Consolidated EBITDAR for such period.




“LIEN” means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any
agreement to give any of the foregoing, any conditional sale or other
title retention agreement, any financing or similar statement or notice
filed under the Uniform Commercial Code as adopted and in effect in the
relevant jurisdiction or other similar recording or notice statute, and
any lease in the nature thereof).


 


11









 






“LOAN” or “LOANS” means the Revolving Loans (or a portion of any
Revolving Loan bearing interest at the Adjusted Base Rate or the
Adjusted Eurodollar Rate) and/or any Swingline Loan, individually or
collectively, as appropriate.




“LOC COMMITMENT” means the commitment of the Issuing Lender to
issue Letters of Credit, and to honor payment obligations under, Letters
of Credit hereunder in an aggregate face amount at any time outstanding
(together with the amounts of any unreimbursed drawings thereon) of up
to the LOC Committed Amount and with respect to each Lender, the
commitment of each Lender to purchase participation interests in the
Letters of Credit.




“LOC COMMITTED AMOUNT” means SEVENTY-FIVE MILLION DOLLARS
($75,000,000).




“LOC DOCUMENTS” means, with respect to any Letter of Credit,
such Letter of Credit, any amendments thereto, any documents delivered
in connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in
application or applicable only to such Letter of Credit) governing or
providing for (i) the rights and obligations of the parties concerned or
at risk or (ii) any collateral security for such obligations.




“LOC OBLIGATIONS” means, at any time, the sum of (i) the maximum
amount which is, or at any time thereafter may become, available to be
drawn under Letters of Credit then outstanding, assuming compliance with
all requirements for drawings referred to in such Letters of Credit PLUS
(ii) the aggregate amount of all drawings under Letters of Credit
honored by the Issuing Lender but not theretofore reimbursed by the
Borrower.




“MATERIAL ADVERSE EFFECT” means a material adverse effect on (a)
the business, operations, assets, property, condition (financial or
otherwise), liabilities or prospects of the Borrower and its
Subsidiaries taken as a whole, (b) the ability of the Borrower and the
other Credit Parties taken as a whole to perform any material obligation
under the Credit Documents or (c) the material rights and remedies of
the Lenders under the Credit Documents.




“MATERIALS OF ENVIRONMENTAL CONCERN” means any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Laws,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.




“MATURITY DATE” means February
 _____, 2012.




“MOODY’S” means Moody’s Investors Service, Inc., or any
successor or assignee of the business of such company in the business of
rating securities.




“MULTIEMPLOYER PLAN” means a Plan which is a multiemployer plan
as defined in Sections 3(37) or 4001(a)(3) of ERISA.




“MULTIPLE EMPLOYER PLAN” means a Plan which any Consolidated
Party or any ERISA Affiliate and at least one employer other than the
Consolidated Parties or any ERISA Affiliate are contributing sponsors.




“NON-CONSENTING LENDER” shall have the meaning assigned to such
term in Section 11.19.




“NOTE” or “NOTES” means the Revolving Notes and/or the Swingline
Note, individually or collectively, as appropriate.


 


12









 






“NOTICE OF BORROWING” means a written notice of borrowing in
substantially the form of EXHIBIT 2.1(B)(I), as required by Section
2.1(b)(i).




“NOTICE OF EXTENSION/CONVERSION” means the written notice of
extension or conversion in substantially the form of EXHIBIT 3.2, as
required by Section 3.2.




“OPERATING LEASE” means, as applied to any Person, any lease
(including, without limitation, leases which may be terminated by the
lessee at any time) of any Property (whether real, personal or mixed)
which is not a Capital Lease other than any such lease in which that
Person is the lessor.




“OTHER TAXES” shall have the meaning assigned to such term in
Section 3.11.




“PARTICIPANT” shall have the meaning assigned to such term in
Section 11.3(d).




“PARTICIPATION INTEREST” means a purchase by a Lender of a
participation in Letters of Credit or LOC Obligations as provided in
Section 2.2, in Swingline Loans as provided in Section 2.3, or in any
Loans as provided in Section 3.14.




“PBGC” means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereof.




“PERMITTED INVESTMENTS” means Investments which are either (i)
cash and Cash Equivalents; (ii) accounts receivable created, acquired or
made by any Consolidated Party in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms; (iii)
Investments consisting of Capital Stock, obligations, securities or
other property received by any Consolidated Party in settlement of
accounts receivable (created in the ordinary course of business) from
bankrupt obligors; (iv) investments in any Credit Party; and (v)
investments (including acquisitions) of a nature not contemplated in the
foregoing clauses in an amount at any time outstanding not to exceed
$75,000,000 in the aggregate during the term of the Credit Agreement
(including any goodwill associated herewith).




“PERMITTED LIENS” means:




(i) Liens (other than Liens created or imposed under
ERISA) for taxes, assessments or governmental charges or levies
not yet due or Liens for taxes being contested in good faith by
appropriate proceedings for which adequate reserves determined
in accordance with GAAP have been established (and as to which
the Property subject to any such Lien is not yet subject to
foreclosure, sale or loss on account thereof);




(ii) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and suppliers and
other Liens imposed by law or pursuant to customary reservations
or retentions of title arising in the ordinary course of
business, PROVIDED that such Liens secure only amounts not yet
due and payable or, if due and payable, are unfiled and no other
action has been taken to enforce the same or are being contested
in good faith by appropriate proceedings for which adequate
reserves determined in accordance with GAAP have been
established (and as to which the Property subject to any such
Lien is not yet subject to foreclosure, sale or loss on account
thereof);


 


13









 






(iii) Liens (other than Liens created or imposed under
ERISA) incurred or deposits made by any Consolidated Party in
the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory
obligations, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive
of obligations for the payment of borrowed money);




(iv) Liens in connection with attachments or
judgments (including judgment or appeal bonds) PROVIDED that the
judgments secured shall, within 30 days after the entry thereof,
have been discharged or execution thereof stayed pending appeal,
or shall have been discharged within 30 days after the
expiration of any such stay;




(v) easements, rights-of-way, restrictions
(including zoning restrictions), minor defects or irregularities
in title and other similar charges or encumbrances not, in any
material respect, impairing the use of the encumbered Property
for its intended purposes;




(vi) Liens on Property securing purchase money
Indebtedness (including Capital Leases) hereafter incurred to
finance the purchase of fixed assets PROVIDED that (a) the total
of all such Indebtedness of the Consolidated Parties secured by
such Liens shall not exceed an aggregate principal amount of
$20,000,000 at any one time outstanding and (b) any such Lien
attaches to such Property concurrently with or within 90 days
after the acquisition thereof;




(vii) leases or subleases granted to others not
interfering in any material respect with the business of any
Consolidated Party;




(viii) any interest of title of a lessor under, and
Liens arising from UCC financing statements (or equivalent
filings, registrations or agreements in foreign jurisdictions)
relating to, operating leases permitted by this Credit
Agreement;




(ix) normal and customary rights of setoff upon
deposits of cash in favor of banks or other depository
institutions;




(x) Liens of a collecting bank arising under Section
4-210 of the Uniform Commercial Code on items in the course of
collection;




(xi) Liens in connection with Sale and Leaseback
Transactions permitted by Section 8.13;




(xii) Liens existing as of the Closing Date and set
forth on SCHEDULE 1.1(A); PROVIDED that no such Lien shall at
any time be extended to or cover any Property other than the
Property subject thereto on the Closing Date; and




(xiii) other Liens not described above, PROVIDED that
the aggregate principal amount of obligations secured by such
Liens PLUS the aggregate principal amount of unsecured
Indebtedness of Subsidiaries of the Borrower outstanding
pursuant to Section 8.1(f) does not exceed 10% of Consolidated
Tangible Assets.


 


14









 






“PERSON” means any individual, partnership, joint venture, firm,
corporation, limited liability company, business trust, association,
trust or other enterprise (whether or not incorporated) or any
Governmental Authority.




“PLAN” means any employee benefit plan (as defined in Section
3(3) of ERISA) which is covered by ERISA and with respect to which any
Consolidated Party or any ERISA Affiliate is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to
be) an “employer” within the meaning of Section 3(5) of ERISA.




“PLATFORM” shall have the meaning assigned to such term in
Section 7.1.




“PRIME RATE” means the per annum rate of interest established
from time to time by Bank of America as its prime rate, which rate may
not be the lowest rate of interest charged by Bank of America to its
customers.




“PROPERTY” means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.




“PUBLIC LENDER” shall have the meaning assigned to such term in
Section 7.1.




“REGISTER” shall have the meaning given such term in Section
11.3(c).




“REGULATION T, U, OR X” means Regulation T, U or X,
respectively, of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor to all or a portion
thereof.




“RELATED PARTIES” means, with respect to any specified Person,
such Person’s Affiliates and the partners, directors, officers,
employees, agents and advisors of such Person and such Person’s
Affiliates.




“RELEASE” means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping
or disposing into the environment (including the abandonment or
discarding of barrels, containers and other closed receptacles) of any
Materials of Environmental Concern.




“REPORTABLE EVENT” means any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the notice
requirement has been waived by regulation.




“REQUIRED LENDERS” means, at any time, Lenders whose aggregate
Credit Exposure (as hereinafter defined) constitutes more than 50% of
the Credit Exposure of all Lenders at such time; provided, however, that
if any Lender shall be a Defaulting Lender at such time then there shall
be excluded from the determination of Required Lenders the aggregate
principal amount of Credit Exposure of such Lender at such time. For
purposes of the preceding sentence, the term “Credit Exposure” as
applied to each Lender shall mean (a) at any time prior to the
termination of the Commitments, the sum of the Revolving Commitment
Percentage of such Lender multiplied by the Revolving Committed Amount
and (b) at any time after the termination of the Commitments, the sum of
(i) the principal balance of the outstanding Loans of such Lender plus
(ii) such Lender’s Participation Interests in the face amount of the
outstanding Letters of Credit and Swingline Loans.




“REQUIREMENT OF LAW” means, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents
of such Person, and any law, treaty, rule or


 


15









 






regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such
Person or to which any of its material property is subject.




“RESPONSIBLE OFFICER” means the chief executive officer,
president, chief financial officer, treasurer or assistant treasurer of
a Credit Party. Any document delivered hereunder that is signed by a
Responsible Officer of a Credit Party shall be conclusively presumed to
have been authorized by all necessary corporate, partnership and/or
other action on the party of such Credit Party and such Responsible
Officer shall be conclusively presumed to have acted on behalf of such
Credit Party.




“RESTRICTED PAYMENT” means (i) any dividend or other payment or
distribution, direct or indirect, on account of any shares of any class
of Capital Stock of any Consolidated Party, now or hereafter outstanding
(including without limitation any payment in connection with any merger
or consolidation involving any Consolidated Party), or to the direct or
indirect holders of any shares of any class of Capital Stock of any
Consolidated Party, now or hereafter outstanding, in their capacity as
such (other than dividends or distributions payable in the same class of
Capital Stock of the applicable Person or to any Credit Party (directly
or indirectly through Subsidiaries), (ii) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of Capital Stock
of any Consolidated Party, now or hereafter outstanding and (iii) any
payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class of
Capital Stock of any Consolidated Party, now or hereafter outstanding.




“REVOLVING COMMITMENT” means, with respect to each Lender, the
commitment of such Lender in an aggregate principal amount at any time
outstanding of up to such Lender’s Revolving Commitment Percentage of
the Revolving Committed Amount, (i) to make Revolving Loans in
accordance with the provisions of Section 2.1(a), (ii) to purchase
Participation Interests in Letters of Credit in accordance with the
provisions of Section 2.2(c) and (iii) to purchase Participation
Interests in Swingline Loans in accordance with the provisions of
Section 2.3(c).




“REVOLVING COMMITMENT PERCENTAGE” means, for any Lender, the
percentage identified as its Revolving Commitment Percentage on SCHEDULE
2.1(A), as such percentage may be modified in accordance with the
provisions of Section 3.4 or Section 11.3.




“REVOLVING COMMITTED AMOUNT” means TWO HUNDRED FIFTY MILLION
DOLLARS ($250,000,000) as such amount may be increased or reduced
pursuant to Section 3.4.




“REVOLVING LOANS” shall have the meaning assigned to such term
in Section 2.1(a).




“REVOLVING NOTE” or “REVOLVING NOTES” means the promissory notes
of the Borrower in favor of each of the Lenders evidencing the Revolving
Loans provided pursuant to Section 2.1(e), individually or collectively,
as appropriate, as such promissory notes may be amended, modified,
restated, supplemented, extended, renewed or replaced from time to time.




“REVOLVING OBLIGATIONS” means, collectively, the Revolving
Loans, the Swingline Loans and the LOC Obligations.




“S&P” means Standard & Poor’s Ratings Group, a division of
McGraw Hill, Inc., or any successor or assignee of the business of such
division in the business of rating securities.




“SALE AND LEASEBACK TRANSACTION” means any arrangement pursuant
to which any Consolidated Party, directly or indirectly, becomes liable
as lessee, guarantor or other surety with


 


16









 






respect to any lease, whether an Operating Lease or a Capital Lease, of
any Property (whether real, personal or mixed), whether now owned or
hereafter acquired (a) which such Consolidated Party has sold or
transferred (or is to sell or transfer) to a Person which is not a
Consolidated Party or (b) which such Consolidated Party intends to use
for substantially the same purpose as any other Property which has been
sold or transferred (or is to be sold or transferred) by such
Consolidated Party to another Person which is not a Consolidated Party
in connection with such lease.




“SCHEDULED FUNDED DEBT PAYMENTS” means, as of the end of each
fiscal quarter of the Borrower, for the Borrower and its Subsidiaries on
a consolidated basis, the sum of all scheduled payments of principal on
Funded Indebtedness for the applicable period ending on such date
(including the principal component of payments due on Capital Leases
during the applicable period ending on such date); it being understood
that Scheduled Funded Debt Payments shall not include prepayments
pursuant to Section 3.3.




“SINGLE EMPLOYER PLAN” means any Plan which is covered by Title
IV of ERISA, but which is not a Multiemployer Plan or a Multiple
Employer Plan.




“SOLVENT” or “SOLVENCY” means, with respect to any Person as of
a particular date, that on such date (i) such Person is able to realize
upon its assets and pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the normal course of
business, (ii) such Person does not intend to, and does not believe that
it will, incur debts or liabilities beyond such Person’s ability to pay
as such debts and liabilities mature in their ordinary course, (iii)
such Person is not engaged in a business or a transaction, and is not
about to engage in a business or a transaction, for which such Person’s
Property would constitute unreasonably small capital after giving due
consideration to the prevailing practice in the industry in which such
Person is engaged or is to engage, (iv) the fair value of the Property
of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person
and (v) the present fair salable value of the assets of such Person is
not less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and
matured. In computing the amount of contingent liabilities at any time,
it is intended that such liabilities will be computed at the amount
which, in light of all the facts and circumstances existing at such
time, represents the amount that can reasonably be expected to become an
actual or matured liability.




“STANDBY LETTER OF CREDIT FEE” shall have the meaning assigned
to such term in Section 3.5(b)(i).




“SUBSIDIARY” means, as to any Person at any time, (a) any
corporation more than 50% of whose Capital Stock of any class or classes
having by the terms thereof ordinary voting power to elect a majority of
the directors of such corporation (irrespective of whether or not at
such time, any class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency) is at
such time owned by such Person directly or indirectly through
Subsidiaries, and (b) any partnership, association, joint venture or
other entity of which such Person directly or indirectly through
Subsidiaries owns at such time more than 50% of the Capital Stock.
Notwithstanding the foregoing, (i) Del’s Farm Supply Canada Co., a Nova
Scotia corporation, shall not constitute a Subsidiary of the Borrower
for purposes of the Credit Documents so long as its assets are less than
$1,500,000 and its annual net income is less than $150,000 and (ii)
Tractor Supply GC Trust, a Maryland business trust, shall not constitute
a Subsidiary of the Borrower for purposes of the Credit Documents so
long as it engages in no material business other than the administration
of the Borrower’s retail gift card program.


 


17









 






“SUBSIDIARY GUARANTOR” means each of the Persons identified as a
“Subsidiary Guarantor” on the signature pages hereto and each Additional
Credit Party which may hereafter execute a Joinder Agreement, together
with their successors and permitted assigns, and “Subsidiary Guarantor”
means any one of them.




“SWINGLINE COMMITTED AMOUNT” means TEN MILLION DOLLARS
($10,000,000).




“SWINGLINE LENDER” means Bank of America, together with any
successors or assigns.




“SWINGLINE LOAN REQUEST” means a request by the Borrower for a
Swingline Loan in substantially the form of EXHIBIT 2.3(B).




“SWINGLINE LOANS” means the loans made by the Swingline Lender
pursuant to Section 2.3.




“SWINGLINE NOTE” means the promissory note of the Borrower in
favor of the Swingline Lender evidencing the Swingline Loans provided
pursuant to Section 2.3, as such promissory note may be amended,
modified, supplemented, extended, renewed or replaced from time to time.




“SYNTHETIC LEASE” means any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet
financing product where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an Operating Lease.




“TAXES” shall have the meaning assigned to such term in Section
3.11.




“TRADE LETTER OF CREDIT FEE” shall have the meaning assigned to
such term in Section 3.5(b)(ii).




“UNREIMBURSED AMOUNT” shall have the meaning assigned to such
term in Section 2.2(c)(i).




“UNUSED FEE” shall have the meaning assigned to such term in
Section 3.5(a).




“UNUSED FEE CALCULATION PERIOD” shall have the meaning assigned
to such term in Section 3.5(a).




“UNUSED REVOLVING COMMITTED AMOUNT” means, for any period, the
amount by which (a) the then applicable Revolving Committed Amount
exceeds (b) the daily average sum for such period of (i) the outstanding
aggregate principal amount of all Revolving Loans PLUS (ii) the
outstanding aggregate principal amount of all LOC Obligations.




“VOTING STOCK” means, with respect to any Person, Capital Stock
issued by such Person the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even though
the right so to vote has been suspended by the happening of such a
contingency.




“WHOLLY OWNED SUBSIDIARY” of any Person means any Subsidiary
100% of whose Voting Stock or other equity interest is at the time owned
by such Person directly or indirectly through other Wholly Owned
Subsidiaries.



1.2 COMPUTATION OF TIME PERIODS.


 


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For purposes of computation of periods of time hereunder, the word
“from” means “from and including” and the words “to” and “until” each mean “to
but excluding.”



1.3 ACCOUNTING TERMS.



Except as otherwise expressly provided herein, all accounting terms used
herein shall be interpreted, and all financial statements and certificates and
reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All calculations made for the purposes of determining compliance with
this Credit Agreement shall (except as otherwise expressly provided herein) be
made by application of GAAP applied on a basis consistent with the most recent
annual or quarterly financial statements delivered pursuant to Section 7.1 (or,
prior to the delivery of the first financial statements pursuant to Section 7.1,
consistent with the financial statements as at December 31, 2005); PROVIDED,
HOWEVER, if (a) the Credit Parties shall object to determining such compliance
on such basis at the time of delivery of such financial statements due to any
change in GAAP or the rules promulgated with respect thereto or (b) the
Administrative Agent or the Required Lenders shall so object in writing within
60 days after delivery of such financial statements, then such calculations
shall be made on a basis consistent with the most recent financial statements
delivered by the Credit Parties to the Lenders as to which no such objection
shall have been made.



1.4 LETTER OF CREDIT AMOUNTS.



Unless otherwise specified herein, the amount of a Letter of Credit at
any time shall be deemed to be the stated amount of such Letter of Credit in
effect at such time; PROVIDED, HOWEVER, that with respect to any Letter of
Credit that, by its terms or the terms of any LOC Document related thereto,
provides for one or more automatic increases in the stated amount thereof, the
amount of such Letter of Credit shall be deemed to be the maximum stated amount
of such Letter of Credit after giving effect to all such increases, whether or
not such maximum stated amount is in effect at such time.



SECTION 2




CREDIT FACILITIES




2.1 REVOLVING LOANS.




(a) REVOLVING COMMITMENT. Subject to the terms and
conditions hereof and in reliance upon the representations and
warranties set forth herein, each Lender severally agrees to make
available to the Borrower such Lender’s Revolving Commitment Percentage
of revolving credit loans requested by the Borrower in Dollars
(“REVOLVING LOANS”) from time to time from the Closing Date until the
Maturity Date, or such earlier date as the Revolving Commitments shall
have been terminated as provided herein; provided, HOWEVER, that (i)
with regard to the Lenders collectively, the amount of the Revolving
Obligations outstanding shall not exceed the Revolving Committed Amount;
PROVIDED, FURTHER, (ii) with regard to each Lender individually, such
Lender’s Revolving Commitment Percentage of the sum of the Revolving
Loans PLUS LOC Obligations outstanding PLUS Swingline Loans outstanding
shall not exceed such Lender’s Revolving Commitment Percentage of the
Revolving Committed Amount. Revolving Loans may consist of Base Rate
Loans or Eurodollar Loans, or a combination thereof, as the Borrower may
request; PROVIDED, HOWEVER, that no more than ten Eurodollar Loans shall
be outstanding hereunder at any time (it being understood that, for
purposes hereof, Eurodollar Loans with different Interest Periods shall
be considered as separate Eurodollar Loans, even if they begin on the
same date, although borrowings, extensions and conversions may, in
accordance with the provisions hereof, be combined at the end of
existing


 


19









 






Interest Periods to constitute a new Eurodollar Loan with a single
Interest Period). Revolving Loans hereunder may be repaid and reborrowed
in accordance with the provisions hereof.




(b) REVOLVING LOAN BORROWINGS.




(i) NOTICE OF BORROWING. The Borrower shall request
a Revolving Loan borrowing by written notice (or telephonic
notice promptly confirmed in writing) to the Administrative
Agent not later than 12:00 Noon (Charlotte, North Carolina time)
on the Business Day of the requested borrowing in the case of
Base Rate Loans, and on the second Business Day prior to the
date of the requested borrowing in the case of Eurodollar Loans.
Each such request for borrowing shall be irrevocable and shall
specify (A) that a Revolving Loan is requested, (B) the date of
the requested borrowing (which shall be a Business Day), (C) the
aggregate principal amount to be borrowed, and (D) whether the
borrowing shall be comprised of Base Rate Loans, Eurodollar
Loans or a combination thereof, and if Eurodollar Loans are
requested, the Interest Period(s) therefor. If the Borrower
shall fail to specify in any such Notice of Borrowing (I) an
applicable Interest Period in the case of a Eurodollar Loan,
then such notice shall be deemed to be a request for an Interest
Period of one month, or (II) the type of Revolving Loan
requested, then such notice shall be deemed to be a request for
a Base Rate Loan hereunder. The Administrative Agent shall give
notice to each affected Lender promptly upon receipt of each
Notice of Borrowing pursuant to this Section 2.1(b)(i), the
contents thereof and each such Lender’s share of any borrowing
to be made pursuant thereto.




(ii) MINIMUM AMOUNTS. Each Base Rate Loan that is a
Revolving Loan shall be in a minimum aggregate principal amount
of $100,000 and integral multiples of $1,000 in excess thereof
(or the remaining amount of the Revolving Committed Amount, if
less), and each Eurodollar Loan that is a Revolving Loan shall
be in a minimum aggregate principal amount of $2,500,000 and
integral multiples of $1,000,000 in excess thereof (or the
remaining amount of the Revolving Committed Amount, if less).




(iii) ADVANCES. Each Lender will make its Revolving
Commitment Percentage of each Revolving Loan borrowing available
to the Administrative Agent for the account of the Borrower as
specified in Section 3.15(a), or in such other manner as the
Administrative Agent may specify in writing, by 1:00 p.m.
(Charlotte, North Carolina time) on the date specified in the
applicable Notice of Borrowing in Dollars and in funds
immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the
Administrative Agent by crediting the account of the Borrower on
the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like
funds as received by the Administrative Agent.




(c) REPAYMENT. The principal amount of all Revolving Loans
shall be due and payable in full on the Maturity Date, unless
accelerated sooner pursuant to Section 9.2.




(d) INTEREST. Subject to the provisions of Section 3.1,




(i) BASE RATE LOANS. During such periods as
Revolving Loans shall be comprised in whole or in part of Base
Rate Loans, such Base Rate Loans shall bear interest at a per
annum rate equal to the Adjusted Base Rate.




 


20









 






(ii) EURODOLLAR LOANS. During such periods as
Revolving Loans shall be comprised in whole or in part of
Eurodollar Loans, such Eurodollar Loans shall bear interest at a
per annum rate equal to the Adjusted Eurodollar Rate.




Interest on Revolving Loans shall be payable in arrears on each
applicable Interest Payment Date (or at such other times as may be
specified herein).




(e) REVOLVING NOTES. The Revolving Loans made by each Lender
shall be evidenced by a duly executed promissory note of the Borrower to
such Lender in an original principal amount equal to such Lender’s
Revolving Commitment Percentage of the Revolving Committed Amount and in
substantially the form of EXHIBIT 2.1(E).




2.2 LETTER OF CREDIT SUBFACILITY.




(a) THE LETTER OF CREDIT COMMITMENT.




(i) Subject to the terms and conditions set forth
herein, (A) the Issuing Lender agrees, in reliance upon the
agreements of the other Lenders set forth in this Section 2.2,
(1) from time to time on any Business Day during the period from
the Closing Date until the Letter of Credit Expiration Date, to
issue Letters of Credit for the account of the Borrower, and to
amend Letters of Credit previously issued by it, in accordance
with subsection (b) below, and (2) to honor drafts under the
Letters of Credit; and (B) the Lenders severally agree to
participate in Letters of Credit issued for the account of the
Borrower; PROVIDED that the Issuing Lender shall not be
obligated to make any L/C Credit Extension with respect to any
Letter of Credit, and no Lender shall be obligated to
participate in any Letter of Credit if as of the date of such
L/C Credit Extension, (x) the sum of the Revolving Loans
outstanding PLUS LOC Obligations outstanding PLUS Swingline
Loans outstanding would exceed the Revolving Committed Amount,
(y) with regard to any Lender individually, such Lender’s
Revolving Commitment Percentage of the sum of the Revolving
Loans outstanding PLUS LOC Obligations outstanding PLUS
Swingline Loans outstanding would exceed such Lender’s Revolving
Commitment Percentage of the Revolving Committed Amount or (z)
the amount of LOC Obligations outstanding would exceed the LOC
Committed Amount. Within the foregoing limits, and subject to
the terms and conditions hereof, the Borrower’s ability to
obtain Letters of Credit shall be fully revolving, and
accordingly the Borrower may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit that have
expired or that have been drawn upon and reimbursed. All
Existing Letters of Credit shall be deemed to have been issued
pursuant hereto, and from and after the Closing Date shall be
subject to and governed by the terms and conditions hereof.




(ii) The Issuing Lender shall be under no obligation
to issue any Letter of Credit if:




(A) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain the Issuing Lender from
issuing such Letter of Credit, or any law applicable to
the Issuing Lender or any request or directive (whether
or not having the force of law) from any Governmental
Authority with jurisdiction over the Issuing Lender
shall prohibit, or request that the Issuing Lender
refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or
shall impose upon the Issuing Lender with respect to
such Letter of Credit any restriction, reserve or
capital



 


21









 






requirement (for which the Issuing Lender is not
otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon the Issuing Lender
any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the Issuing
Lender in good faith deems material to it;




(B) the issuance of such Letter of Credit
would violate one or more generally applicable policies
of the Issuing Lender;




(C) subject to Section 2.2(b)(iii), the
expiry date of such requested Letter of Credit would
occur more than twelve months after the date of
issuance, unless the Required Lenders have approved such
expiry date;




(D) the expiry date of such requested Letter
of Credit would occur after the Letter of Credit
Expiration Date, unless all the Lenders have approved
such expiry date;




(E) such Letter of Credit is to be used for
a purpose other than is permitted by Section 7.9 or
denominated in a currency other than Dollars; or




(F) a default of any Lender’s obligations to
fund under Section 2.2(c) exists or any Lender is at
such time a Defaulting Lender hereunder, unless the
Issuing Lender has entered into satisfactory
arrangements with the Borrower or such Lender to
eliminate the Issuing Lender’s risk with respect to such
Lender.




(iii) The Issuing Lender shall be under no obligation
to amend any Letter of Credit if (A) the Issuing Lender would
have no obligation at such time to issue such Letter of Credit
in its amended form under the terms hereof, or (B) the
beneficiary of such Letter of Credit does not accept the
proposed amendment to such Letter of Credit.




	 	(b)	 	PROCEDURES FOR ISSUANCE AND AMENDMENT OF LETTERS OF
CREDIT.






(i) Each Letter of Credit shall be issued or
amended, as the case may be, upon the request of the Borrower
delivered to the Issuing Lender (with a copy to the
Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible
Officer of the Borrower. Such Letter of Credit Application must
be received by the Issuing Lender and the Administrative Agent
not later than 11:00 a.m. at least two Business Days (or such
later date and time as the Administrative Agent and the Issuing
Lender may agree in a particular instance in their sole
discretion) prior to the proposed issuance date or date of
amendment, as the case may be. In the case of a request for an
initial issuance of a Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the
Issuing Lender: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount
thereof; (C) the expiry date thereof; (D) the name and address
of the beneficiary thereof; (E) the documents to be presented by
such beneficiary in case of any drawing thereunder; (F) the full
text of any certificate to be presented by such beneficiary in
case of any drawing thereunder; (G) the purpose and nature of
the requested Letter of Credit; and (H) such other matters as
the Issuing Lender may require. In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory
to the Issuing Lender (A) the Letter of Credit to be amended;
(B) the proposed date of amendment thereof (which shall be a
Business Day); (C) the nature of the proposed amendment; and (D)



 


22









 






such other matters as the Issuing Lender may require.
Additionally, the Borrower shall furnish to the Issuing Lender
and the Administrative Agent such other documents and
information pertaining to such requested Letter of Credit
issuance or amendment, including any LOC Documents, as the
Issuing Lender or the Agent may reasonably require.




(ii) Promptly after receipt of any Letter of Credit
Application, the Issuing Lender will confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of
Credit Application from the Borrower and, if not, the Issuing
Lender will provide the Administrative Agent with a copy
thereof. Unless the Issuing Lender has received written notice
from the Administrative Agent or any Credit Party at least one
Business Day prior to the requested date of issuance or
amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in Section 5 shall not be
satisfied, then, subject to the terms and conditions hereof, the
Issuing Lender shall, on the requested date, issue a Letter of
Credit for the account of the Borrower or enter into the
applicable amendment, as the case may be, in each case in
accordance with the Issuing Lender’s usual and customary
business practices. Immediately upon the issuance of each Letter
of Credit, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the
Issuing Lender a risk participation in such Letter of Credit in
an amount equal to its pro rata share of the obligations under
such Letter of Credit (based on the Revolving Commitment
Percentage of such Lender).




(iii) Promptly after its delivery of any Letter of
Credit or any amendment to a Letter of Credit to an advising
bank with respect thereto or to the beneficiary thereof, the
Issuing Lender will also deliver to the Borrower and the
Administrative Agent a true and complete copy of such Letter of
Credit or amendment.




(c) DRAWINGS AND REIMBURSEMENTS; FUNDING OF PARTICIPATIONS.




(i) Upon receipt from the beneficiary of any Letter
of Credit of any notice of a drawing under such Letter of
Credit, the Issuing Lender shall notify the Borrower and the
Administrative Agent thereof. Not later than 11:00 a.m. on the
date of any payment by the Issuing Lender under a Letter of
Credit (each such date, an “HONOR DATE”), the Borrower shall
reimburse the Issuing Lender through the Administrative Agent in
an amount equal to the amount of such drawing. If the Borrower
fails to so reimburse the Issuing Lender by such time, the
Administrative Agent shall promptly notify each Lender of the
Honor Date, the amount of the unreimbursed drawing (the
“UNREIMBURSED AMOUNT”), and the amount of such Lender’s pro rata
share thereof (based on the respective Revolving Commitment
Percentage of such Lender). In such event, the Borrower shall be
deemed to have requested a Revolving Loan advance comprised of
Base Rate Loans to be disbursed on the Honor Date in an amount
equal to the Unreimbursed Amount, without regard to the minimum
and multiples specified in Section 2.1 for the principal amount
of Base Rate Loans, but subject to the amount of the unutilized
portion of the Revolving Committed Amount and the conditions set
forth in Section 5.2 (other than the delivery of a Notice of
Borrowing). Any notice given by the Issuing Lender or the
Administrative Agent pursuant to this Section 2.2(c)(i) may be
given by telephone if immediately confirmed in writing; PROVIDED
that the lack of such an immediate confirmation shall not affect
the conclusiveness or binding effect of such notice.



 


23









 






(ii) Each Lender (including the Lender acting as
Issuing Lender) shall upon any notice pursuant to Section
2.2(c)(i) make funds available to the Administrative Agent for
the account of the Issuing Lender at the Administrative Agent’s
Office in an amount equal to its pro rata share of the
Unreimbursed Amount (based on the respective Revolving
Commitment Percentage of such Lender) not later than 1:00 p.m.
on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of
Section 2.2(c)(iii), each Lender that so makes funds available
shall be deemed to have made a Base Rate Loan to the Borrower in
such amount. The Administrative Agent shall remit the funds so
received to the Issuing Lender.




(iii) With respect to any Unreimbursed Amount that is
not fully refinanced by a Revolving Loan advance because the
conditions set forth in Section 5.2 cannot be satisfied or for
any other reason, the Borrower shall be deemed to have incurred
from the Issuing Lender an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C
Borrowing shall be due and payable on demand (together with
interest) and shall bear interest at the Default Rate. In such
event, each Lender’s payment to the Administrative Agent for the
account of the Issuing Lender pursuant to Section 2.2(c)(ii)
shall be deemed payment in respect of its participation in such
L/C Borrowing and shall constitute an L/C Advance from such
Lender in satisfaction of its participation obligation under
this Section 2.2.




(iv) Until each Lender funds its Revolving Loan or
L/C Advance pursuant to this Section 2.2(c) to reimburse the
Issuing Lender for any amount drawn under any Letter of Credit,
interest in respect of such Lender’s pro rata share (based on
the respective Revolving Commitment Percentage of such Lender)
of such amount shall be solely for the account of the Issuing
Lender.




(v) Each Lender’s obligation to make Revolving Loans
or L/C Advances to reimburse the Issuing Lender for amounts
drawn under Letters of Credit, as contemplated by this Section
2.2(c), shall be absolute and unconditional and shall not be
affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such
Lender may have against the Issuing Lender, the Borrower or any
other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default or Event of Default, or (C) any other
occurrence, event or condition, whether or not similar to any of
the foregoing; PROVIDED, HOWEVER, that each Lender’s obligation
to make Revolving Loans pursuant to this Section 2.2(c) is
subject to the conditions set forth in Section 5.2 (other than
delivery by the Borrower of a Notice of Borrowing). No such
making of an L/C Advance shall relieve or otherwise impair the
obligation of the Borrower to reimburse the Issuing Lender for
the amount of any payment made by the Issuing Lender under any
Letter of Credit, together with interest as provided herein.




(vi) If any Lender fails to make available to the
Administrative Agent for the account of the Issuing Lender any
amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.2(c) by the time
specified in Section 2.2(c)(ii), the Issuing Lender shall be
entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to
the date on which such payment is immediately available to the
Issuing Lender at a rate per annum equal to the Federal Funds
Rate from time to time in effect. A certificate of the Issuing
Lender submitted to any Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (vi)
shall be conclusive absent manifest error.


 


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(d) REPAYMENT OF PARTICIPATIONS.




(i) At any time after the Issuing Lender has made a
payment under any Letter of Credit and has received from any
Lender such Lender’s L/C Advance in respect of such payment in
accordance with Section 2.2(c), if the Administrative Agent
receives for the account of the Issuing Lender any payment in
respect of the related Unreimbursed Amount or interest thereon
(whether directly from the Borrower or otherwise, including
proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute
to such Lender its pro rata share thereof (based on the
respective Revolving Commitment Percentage of such Lender)
(appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender’s L/C
Advance was outstanding) in the same funds as those received by
the Administrative Agent.




(ii) If any payment received by the Administrative
Agent for the account of the Issuing Lender pursuant to Section
2.2(c)(i) is required to be returned under any of the
circumstances described in Section 3.14 (including pursuant to
any settlement entered into by the Issuing Lender in its
discretion), each Lender shall pay to the Administrative Agent
for the account of the Issuing Lender its pro rata share thereof
(based on the respective Revolving Commitment Percentage of such
Lender) on demand of the Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect.




(e) OBLIGATIONS ABSOLUTE. The obligation of the Borrower to
reimburse the Issuing Lender for each drawing under each Letter of
Credit and to repay each L/C Borrowing shall be absolute, unconditional
and irrevocable, and shall be paid strictly in accordance with the terms
of this Credit Agreement under all circumstances, including the
following:




(i) any lack of validity or enforceability of such
Letter of Credit, this Credit Agreement, or any other agreement
or instrument relating thereto;




(ii) the existence of any claim, counterclaim,
set-off, defense or other right that the Borrower may have at
any time against any beneficiary or any transferee of such
Letter of Credit (or any Person for whom any such beneficiary or
any such transferee may be acting), the Issuing Lender or any
other Person, whether in connection with this Credit Agreement,
the transactions contemplated hereby or by such Letter of Credit
or any agreement or instrument relating thereto, or any
unrelated transaction;




(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or
any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under such Letter
of Credit;




(iv) any payment by the Issuing Lender under such
Letter of Credit against presentation of a draft or certificate
that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the Issuing Lender under such
Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or
successor to any beneficiary or any transferee of such Letter of
Credit, including any arising in connection with any proceeding
under the Bankruptcy Code or any other debtor relief laws; or


 


25









 






(v) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any
other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower.




The Borrower shall promptly examine a copy of each Letter of
Credit and each amendment thereto that is delivered to it and, in the
event of any claim of noncompliance with the Borrower’s instructions or
other irregularity, the Borrower will immediately notify the Issuing
Lender. The Borrower shall be conclusively deemed to have waived any
such claim against the Issuing Lender and its correspondents unless such
notice is given as aforesaid.




(f) ROLE OF ISSUING LENDER. Each Lender and the Borrower
agree that, in paying any drawing under a Letter of Credit, the Issuing
Lender shall not have any responsibility to obtain any document (other
than any sight draft, certificates and documents expressly required by
such Letter of Credit) or to ascertain or inquire as to the validity or
accuracy of any such document or the authority of the Person executing
or delivering any such document. None of the Issuing Lender, any
Agent-Related Person nor any of the respective correspondents,
participants or assignees of the Issuing Lender shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the
request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument
related to any Letter of Credit or Letter of Credit Application. The
Borrower hereby assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of
Credit; PROVIDED, HOWEVER, that this assumption is not intended to, and
shall not, preclude the Borrower’s pursuing such rights and remedies as
it may have against the beneficiary or transferee at law or under any
other agreement. None of the Issuing Lender, any Agent-Related Person,
nor any of the respective correspondents, participants or assignees of
the Issuing Lender, shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.2(e);
PROVIDED, HOWEVER, that anything in such clauses to the contrary
notwithstanding, the Borrower may have a claim against the Issuing
Lender, and the Issuing Lender may be liable to the Borrower, to the
extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the
Borrower proves were caused by the Issuing Lender’s willful misconduct
or gross negligence or the Issuing Lender’s willful failure to pay under
any Letter of Credit after the presentation to it by the beneficiary of
a sight draft and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit unless the Issuing Lender is prevented
or prohibited from so paying as a result of any order or directive from
any court or other Governmental Authority. In furtherance and not in
limitation of the foregoing, the Issuing Lender may accept documents
that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the
contrary, and the Issuing Lender shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason.




(g) CASH COLLATERAL. Upon the request of the Administrative
Agent, (i) if the Issuing Lender has honored any full or partial drawing
request under any Letter of Credit and such drawing has resulted in an
L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date,
any Letter of Credit may for any reason remain outstanding and partially
or wholly undrawn, the Borrower shall immediately Cash Collateralize the
LOC Obligations outstanding (in an amount



 


26









 






equal to the amount of LOC Obligations outstanding determined as of the
date of such L/C Borrowing or the Letter of Credit Expiration Date, as
the case may be). For purposes hereof, “CASH COLLATERALIZE” means to
pledge and deposit with or deliver to the Administrative Agent, for the
benefit of the Issuing Lender and the Lenders, as collateral for the LOC
Obligations, cash or deposit account balances pursuant to documentation
in form and substance satisfactory to the Administrative Agent and the
Issuing Lender (which documents are hereby consented to by the Lenders).
The Borrower hereby grants to the Administrative Agent, for the benefit
of the Issuing Lender and the Lenders, a security interest in all such
cash, deposit accounts and all balances therein and all proceeds of the
foregoing. Cash collateral shall be maintained in blocked, non-interest
bearing deposit accounts at Bank of America.




(h) APPLICABILITY OF ISP AND UCP. Unless otherwise expressly
agreed by the Issuing Lender and the Borrower when a Letter of Credit is
issued (including any such agreement applicable to an Existing Letter of
Credit), (i) the rules of the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice (or
such later version thereof as may be in effect at the time of issuance)
shall apply to each standby Letter of Credit, and (ii) the rules of the
Uniform Customs and Practice for Documentary Credits, as most recently
published by the International Chamber of Commerce at the time of
issuance shall apply to each commercial Letter of Credit.




(i) CONFLICT WITH LETTER OF CREDIT APPLICATION. In the event
of any conflict between the terms hereof and the terms of any Letter of
Credit Application, the terms hereof shall control.




2.3 SWINGLINE LOANS SUBFACILITY.




(a) SWINGLINE LOANS. Subject to the terms and conditions set
forth herein and in the other Credit Documents and in reliance upon the
agreements of the other Lenders set forth herein, the Swingline Lender
hereby agrees to make loans to the Borrower in Dollars at any time and
from time to time from the Closing Date to but not including the
Maturity Date, or such earlier date as the Revolving Commitments shall
have been terminated as provided herein (each such loan, a “SWINGLINE
LOAN” and collectively, the “SWINGLINE LOANS”); provided that (i) the
aggregate principal amount of the Swingline Loans outstanding at any one
time shall not exceed the Swingline Committed Amount and (ii) with
regard to the Lenders collectively, the amount of Revolving Obligations
outstanding shall not exceed the Revolving Committed Amount. Prior to
the Maturity Date, Swingline Loans may be repaid and reborrowed by the
Borrower in accordance with the provisions hereof.




(b) METHOD OF BORROWING AND FUNDING SWINGLINE LOANS. By no
later than 2:30 p.m. (Charlotte, North Carolina time), on the date of
the requested borrowing of Swingline Loans, the Borrower shall telephone
the Swingline Lender as well as submit a Swingline Loan Request to the
Swingline Lender in the form of EXHIBIT 2.3(B) setting forth (i) the
amount of the requested Swingline Loan and (ii) the date of the
requested Swingline Loan and complying in all respects with Section 5.2.
The Swingline Lender shall initiate the transfer of funds representing
the Swingline Loan advance to the Borrower by 3:00 p.m. on the Business
Day of the requested borrowing. Each Swingline Loan shall be in a
minimum amount of $100,000 and in integral multiples of $1,000 in excess
thereof.




(c) REPAYMENT AND PARTICIPATIONS OF SWINGLINE LOANS. The
Borrower agrees to repay all Swingline Loans within five Business Days
of demand therefor by the Swingline Lender. Each repayment of a
Swingline Loan may be accomplished by requesting Revolving Loans which
request is not subject to the conditions set forth in Section 5.2. In
the event that the Borrower shall fail to



 


27









 






timely repay any Swingline Loan, and in any event upon (i) a request by
the Swingline Lender, (ii) the occurrence of an Event of Default
described in Section 9.1(f) or (iii) the acceleration of any Loan or
termination of any Commitment pursuant to Section 9.2, each other Lender
shall irrevocably and unconditionally purchase from the Swingline
Lender, without recourse or warranty, an undivided interest and
participation in such Swingline Loan in an amount equal to such other
Lender’s Revolving Commitment Percentage thereof, by directly purchasing
a participation in such Swingline Loan in such amount (regardless of
whether the conditions precedent thereto set forth in Section 5.2 are
then satisfied, whether or not the Borrower has submitted a Notice of
Borrowing and whether or not the Commitments are then in effect, any
Event of Default exists or all the Loans have been accelerated) and
paying the proceeds thereof to the Swingline Lender at the address
provided in Section 11.1, or at such other address as the Swingline
Lender may designate, in Dollars and in immediately available funds. If
such amount is not in fact made available to the Swingline Lender by any
Lender, the Swingline Lender shall be entitled to recover such amount on
demand from such Lender, together with accrued interest thereon for each
day from the date of demand thereof, at the Federal Funds Rate. If such
Lender does not pay such amount forthwith upon the Swingline Lender’s
demand therefor, and until such time as such Lender makes the required
payment, the Swingline Lender shall be deemed to continue to have
outstanding Swingline Loans in the amount of such unpaid participation
obligation for all purposes of the Credit Documents other than those
provisions requiring the other Lenders to purchase a participation
therein. Further, such Lender shall be deemed to have assigned any and
all payments made of principal and interest on its Loans, and any other
amounts due to it hereunder to the Swingline Lender to fund Swingline
Loans in the amount of the participation in Swingline Loans that such
Lender failed to purchase pursuant to this Section 2.3(c) until such
amount has been purchased (as a result of such assignment or otherwise).
The principal amount of all Swingline Loans shall be due and payable in
full on the Maturity Date, unless accelerated sooner pursuant to Section
9.2 or required to be repaid by the Swingline Lender pursuant to the
foregoing terms of this Section 2.3(c).




(d) INTEREST. Subject to the provisions of Section 3.1, each
Swingline Loan shall bear interest at a per annum rate equal to the
30-Day Interbank Offered Rate PLUS the Applicable Percentage.




(e) SWINGLINE NOTE. The Swingline Loans made by the
Swingline Lender shall be evidenced by a duly executed promissory note
of the Borrower to the Swingline Lender in the face amount of the
Swingline Committed Amount and in substantially the form of EXHIBIT
2.3(E).



SECTION 3




OTHER PROVISIONS RELATING TO CREDIT FACILITIES




3.1 DEFAULT RATE.



Upon the occurrence, and during the continuance, of an Event of Default,
the principal of and, to the extent permitted by law, interest on the Loans and
any other amounts owing hereunder or under the other Credit Documents shall bear
interest, payable on demand, at a per annum rate 2% greater than the rate which
would otherwise be applicable (or if no rate is applicable, whether in respect
of interest, fees or other amounts, then the Adjusted Base Rate PLUS 2%).



3.2 EXTENSION AND CONVERSION.



The Borrower shall have the option, on any Business Day, to extend
existing Loans into a subsequent permissible Interest Period or to convert Loans
into Loans of another interest rate type; PROVIDED, HOWEVER,



 


28









 






that (i) except as provided in Section 3.8, Eurodollar Loans may be converted
into Base Rate Loans or extended as Eurodollar Loans for new Interest Periods
only on the last day of the Interest Period applicable thereto, (ii) without the
consent of the Required Lenders, Eurodollar Loans may be extended, and Base Rate
Loans may be converted into Eurodollar Loans, only if the conditions precedent
set forth in Section 5.2 are satisfied on the date of extension or conversion,
(iii) Loans extended as, or converted into, Eurodollar Loans shall be subject to
the terms of the definition of “INTEREST PERIOD” set forth in Section 1.1 and
shall be in such minimum amounts as provided in Section 2.1(b)(ii), (iv) no more
than ten Eurodollar Loans shall be outstanding hereunder at any time (it being
understood that, for purposes hereof, Eurodollar Loans with different Interest
Periods shall be considered as separate Eurodollar Loans, even if they begin on
the same date, although borrowings, extensions and conversions may, in
accordance with the provisions hereof, be combined at the end of existing
Interest Periods to constitute a new Eurodollar Loan with a single Interest
Period) and (v) any request for extension or conversion of a Eurodollar Loan
which shall fail to specify an Interest Period shall be deemed to be a request
for an Interest Period of one month. Each such extension or conversion shall be
effected by the Borrower by giving a Notice of Extension/Conversion (or
telephonic notice promptly confirmed in writing) to the office of the
Administrative Agent specified in specified in SCHEDULE 2.1(A), or at such other
office as the Administrative Agent may designate in writing, prior to 12:00 Noon
(Charlotte, North Carolina time) on the Business Day of, in the case of the
conversion of a Eurodollar Loan into a Base Rate Loan, and on the second
Business Day prior to, in the case of the extension of a Eurodollar Loan as, or
conversion of a Base Rate Loan into, a Eurodollar Loan, the date of the proposed
extension or conversion, specifying the date of the proposed extension or
conversion, the Loans to be so extended or converted, the types of Loans into
which such Loans are to be converted and, if appropriate, the applicable
Interest Periods with respect thereto. Each request for extension or conversion
shall be irrevocable and shall constitute a representation and warranty by the
Borrower of the matters specified in subsections (b), (c), (d), (e) and (f) of
Section 5.2. In the event the Borrower fails to request extension or conversion
of any Eurodollar Loan in accordance with this Section, or any such conversion
or extension is not permitted or required by this Section, then such Eurodollar
Loan shall be automatically converted into a Base Rate Loan at the end of the
Interest Period applicable thereto. The Administrative Agent shall give each
Lender notice as promptly as practicable of any such proposed extension or
conversion affecting any Loan.



3.3 PREPAYMENTS.




(a) VOLUNTARY PREPAYMENTS.




The Borrower shall have the right to prepay Loans in
whole or in part from time to time; PROVIDED, HOWEVER, that each
partial prepayment of Loans shall be in a minimum principal
amount of $1,000,000 and integral multiples of $100,000. Subject
to the foregoing terms, amounts prepaid under this Section
3.3(a) shall be applied as the Borrower may elect; PROVIDED that
if the Borrower fails to specify a voluntary prepayment then
such prepayment shall be applied to Revolving Loans, in each
case first to Base Rate Loans and then to Eurodollar Loans in
direct order of Interest Period maturities. All prepayments
under this Section 3.3(a) shall be subject to Section 3.12, but
otherwise without premium or penalty.




(b) MANDATORY PREPAYMENTS.




If at any time (i) the sum of the aggregate amount of
the outstanding Revolving Loans PLUS LOC Obligations outstanding
PLUS Swingline Loans outstanding shall exceed the Revolving
Committed Amount, (ii) the aggregate amount of LOC Obligations
outstanding shall exceed the LOC committed Amount or (iii) the
aggregate amount of Swingline Loans outstanding shall exceed the
Swingline Committed Amount, the Borrower shall immediately make
payment on the Loans and/or cash collateralize the LOC
Obligations in an amount sufficient to eliminate such excess.
All amounts required to be paid pursuant to Section



 


29









 






3.3(b) shall be applied as follows: to the Revolving Loans and
(after all Revolving Loans have been repaid) to a cash
collateral account in respect of LOC Obligations. Within the
parameters of the applications set forth above, prepayments
shall be applied first to Base Rate Loans and then to Eurodollar
Loans in direct order of Interest Period maturities. All
prepayments under this Section 3.3(b) shall be subject to
Section 3.12.



3.4 TERMINATION, REDUCTION OR INCREASE OF REVOLVING COMMITTED
AMOUNT.




(a) VOLUNTARY REDUCTIONS. The Borrower may from time to time
permanently reduce or terminate the Revolving Committed Amount in whole
or in part (in minimum aggregate amounts of $5,000,000 or in integral
multiples of $1,000,000 in excess thereof (or, if less, the full
remaining amount of the then applicable Revolving Committed Amount))
upon five Business Days’ prior written notice to the Administrative
Agent; PROVIDED, that, no such termination or reduction shall be made
which would cause the sum of the aggregate principal amount of the
outstanding Revolving Loans PLUS LOC Obligations PLUS Swingline Loans to
exceed the Revolving Committed Amount or unless, concurrently with such
termination or reduction, the Loans are repaid to the extent necessary
to eliminate such excess. The Administrative Agent shall promptly notify
each affected Lender of receipt by the Administrative Agent of any
notice from the Borrower pursuant to this Section 3.4(a).




(b) MANDATORY TERMINATION. The Revolving Commitments of the
Lenders, the LOC Commitment of the Issuing Lender and the Swingline
Commitment of the Swingline Lender shall automatically terminate on the
Maturity Date, as applicable.




(c) INCREASE OF REVOLVING COMMITTED AMOUNT. The Borrower
shall have the right, upon at least fifteen (15) Business Days’ prior
written notice to the Administrative Agent, to increase the Revolving
Committed Amount by up to $100,000,000 in the aggregate in one or more
increases, at any time prior to the date that is six (6) months prior to
the Maturity Date, SUBJECT, HOWEVER, in any such case, to satisfaction
of the following conditions precedent:




(i) the Revolving Committed Amount shall not exceed
$350,000,000 without the consent of the Required Lenders;




(ii) no Default or Event of Default shall have
occurred and be continuing on the date on which such increase is
to become effective;




(iii) the representations and warranties set forth in
ARTICLE VI shall be true and correct in all material respects on
and as of the date on which such increase is to become
effective;




(iv) such increase shall be in a minimum amount of
$10,000,000 and in integral multiples of $5,000,000 in excess
thereof;




(v) such requested increase shall only be effective
upon receipt by the Administrative Agent of (A) additional
commitments in a corresponding amount of such requested increase
from either existing Lenders and/or one or more other
institutions that qualify as an Eligible Assignee (it being
understood and agreed that no existing Lender shall be required
to provide an additional commitment) and (B) documentation from
each institution providing an additional commitment evidencing
their commitment and their



 


30









 






obligations under this Credit Agreement in form and substance
acceptable to the Administrative Agent;




(vi) the Administrative Agent shall have received all
documents (including resolutions of the board of directors of
the Borrower) it may reasonably request relating to the
corporate or other necessary authority for and the validity of
such increase in the Revolving Committed Amount, and any other
matters relevant thereto, all in form and substance reasonably
satisfactory to the Administrative Agent; and




(vii) if any Revolving Loans are outstanding at the
time of the increase in the Revolving Committed Amount, the
Borrower shall, if applicable, prepay one or more existing
Revolving Loans (such prepayment to be subject to Section 3.12)
in an amount necessary such that after giving effect to the
increase in the Revolving Committed Amount, each Lender will
hold its pro rata share (based on its Revolving Commitment
Percentage of the increased Revolving Committed Amount) of
outstanding Revolving Loans.



3.5 FEES.




(a) UNUSED FEE. In consideration of the Revolving
Commitments of the Lenders hereunder, the Borrower agrees to pay to the
Administrative Agent for the account of each Lender a fee (the “UNUSED
FEE”) equal to the Applicable Percentage per annum for Unused Fees then
in effect on the Unused Revolving Committed Amount for each day during
the applicable Unused Fee Calculation Period (hereinafter defined). The
Unused Fee shall commence to accrue on the Closing Date and shall be due
and payable in arrears on the last business day of each March, June,
September and December (and any date that the Revolving Committed Amount
is reduced as provided in Section 3.4 and the Maturity Date) for the
immediately preceding quarter (or portion thereof) (each such quarter or
portion thereof for which the Unused Fee is payable hereunder being
herein referred to as an “UNUSED FEE CALCULATION PERIOD”), beginning
with the first of such dates to occur after the Closing Date. For
purposes of computation of the Unused Fees, the Swingline Loans shall
not be counted toward or considered usage of the Revolving Committed
Amount.




(b) LETTER OF CREDIT FEES.




(i) STANDBY LETTER OF CREDIT ISSUANCE FEE. In
consideration of the issuance of standby Letters of Credit
hereunder, the Borrower promises to pay to the Administrative
Agent for the account of each Lender a fee (the “LETTER OF
CREDIT FEE”) on such Lender’s Revolving Commitment Percentage of
the average daily maximum amount available to be drawn under
each such standby Letter of Credit computed at a per annum rate
for each day from the date of issuance to the date of expiration
equal to the Applicable Percentage. The Standby Letter of Credit
Fee will be payable quarterly in arrears on the last Business
Day of each March, June, September and December for the
immediately preceding quarter (or a portion thereof).




(ii) TRADE LETTER OF CREDIT DRAWING FEE. In
consideration of the issuance of trade Letters of Credit
hereunder, the Borrower promises to pay to the Administrative
Agent for the account of each Lender a fee (the “TRADE LETTER OF
CREDIT FEE”) on such Lender’s Revolving Commitment Percentage of
the average daily maximum amount available to be drawn under
each such trade Letter of Credit computed at a per annum rate
for each day from the date of issuance to the date of expiration
equal to the Applicable Percentage. The Trade Letter of Credit
Fee will be payable quarterly in arrears on the last Business
Day of each March, June, September and December for the
immediately preceding quarter (or a portion thereof).



 


31









 






(iii) ISSUING LENDER FEES. In addition to the Standby
Letter of Credit Fee payable pursuant to clause (i) above and
the Trade Letter of Credit Fee payable pursuant to clause (ii)
above, the Borrower promises to pay to the Issuing Lender for
its own account without sharing by the other Lenders customary
charges from time to time of the Issuing Lender with respect to
the issuance, amendment, transfer, administration, cancellation
and conversion of, and drawings under, such Letters of Credit
(collectively, the “ISSUING LENDER FEES”).



3.6 CAPITAL ADEQUACY.



If any Lender has determined, after the date hereof, that the adoption
or the becoming effective of, or any change in, or any change by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof in the interpretation or administration
of, any applicable law, rule or regulation regarding capital adequacy, or
compliance by such Lender with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender’s capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender could have
achieved but for such adoption, effectiveness, change or compliance (taking into
consideration such Lender’s policies with respect to capital adequacy), then,
upon notice from such Lender to the Borrower, the Borrower shall be obligated to
pay to such Lender such additional amount or amounts as will compensate such
Lender for such reduction. Each determination by any such Lender of amounts
owing under this Section shall, absent manifest error, be conclusive and binding
on the parties hereto.



3.7 LIMITATION ON EURODOLLAR LOANS.



If on or prior to the first day of any Interest Period for any
Eurodollar Loan:




(a) the Administrative Agent determines (which determination
shall be conclusive) that by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period; or




(b) the Required Lenders determine (which determination
shall be conclusive) and notify the Administrative Agent that the
Eurodollar Rate will not adequately and fairly reflect the cost to the
Lenders of funding Eurodollar Loans for such Interest Period;



then the Administrative Agent shall give the Borrower prompt notice thereof, and
so long as such condition remains in effect, the Lenders shall be under no
obligation to make additional Eurodollar Loans, continue Eurodollar Loans, or to
convert Base Rate Loans into Eurodollar Loans and the Borrower shall, on the
last day(s) of the then current Interest Period(s) for the outstanding
Eurodollar Loans, either prepay such Eurodollar Loans or convert such Eurodollar
Loans into Base Rate Loans in accordance with the terms of this Credit
Agreement.



3.8 ILLEGALITY.



Notwithstanding any other provision herein, if the adoption of
or any change in any Requirement of Law or in the interpretation or application
thereof occurring after the Closing Date shall make it unlawful for any Lender
to make or maintain Eurodollar Loans as contemplated by this Credit Agreement,
(a) such Lender shall promptly give written notice of such circumstances to the
Borrower and the



 


32









 






Administrative Agent (which notice shall be withdrawn whenever such
circumstances no longer exist), (b) the commitment of such Lender hereunder to
make Eurodollar Loans, continue Eurodollar Loans as such and convert a Base Rate
Loan to Eurodollar Loans, shall forthwith be canceled and, until such time as it
shall no longer be unlawful for such Lender to make or maintain Eurodollar
Loans, such Lender shall then have a commitment only to make a Base Rate Loan
when a Eurodollar Loan is requested and (c) such Lender’s Loans then outstanding
as Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans
on the respective last days of the then current Interest Periods with respect to
such Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of the
then current Interest Period with respect thereto, the Borrower shall pay to
such Lender such amounts, if any, as may be required pursuant to Section 3.12.



3.9 REQUIREMENTS OF LAW.



If, after the date hereof, the adoption of any applicable law, rule, or
regulation, or any change in any applicable law, rule, or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such Governmental Authority, central bank, or comparable agency:




(i) shall subject such Lender (or its Applicable Lending
Office) to any tax, duty, or other charge with respect to any
Eurodollar Loans, its Notes, or its obligation to make
Eurodollar Loans, or change the basis of taxation of any amounts
payable to such Lender (or its Applicable Lending Office) under
this Credit Agreement or its Notes in respect of any Eurodollar
Loans (other than taxes imposed on the overall net income of
such Lender by the jurisdiction in which such Lender has its
principal office or such Applicable Lending Office);




(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, or similar requirement
(other than the Eurodollar Reserve Percentage utilized in the
determination of the Adjusted Eurodollar Rate) relating to any
extensions of credit or other assets of, or any deposits with or
other liabilities or commitments of, such Lender (or its
Applicable Lending Office), including the Commitment of such
Lender hereunder; or




(iii) shall impose on such Lender (or its Applicable
Lending Office) or the London interbank market any other
condition affecting this Credit Agreement or its Notes or any of
such extensions of credit or liabilities or commitments;



and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, converting into, continuing, or
maintaining any Eurodollar Loans or to reduce any sum received or receivable by
such Lender (or its Applicable Lending Office) under this Credit Agreement or
its Notes with respect to any Eurodollar Loans, then the Borrower shall pay to
such Lender on demand such amount or amounts as will compensate such Lender for
such increased cost or reduction. If any Lender requests compensation by the
Borrower under this Section 3.9, the Borrower may, by notice to such Lender
(with a copy to the Administrative Agent), suspend the obligation of such Lender
to make or continue Eurodollar Loans, or to convert Base Rate Loans into
Eurodollar Loans, until the event or condition giving rise to such request
ceases to be in effect (in which case the provisions of Section 3.10 shall be
applicable); PROVIDED that such suspension shall not affect the right of such
Lender to receive the compensation so requested. Each Lender shall promptly
notify the Borrower and the Administrative Agent of any event of which it has
knowledge, occurring after the date hereof, which will entitle such Lender to
compensation pursuant to this Section 3.9 and will designate a different
Applicable Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will



 


33









 






not, in the reasonable judgment of such Lender, be otherwise disadvantageous to
it. Any Lender claiming compensation under this Section 3.9 shall furnish to the
Borrower and the Administrative Agent a statement setting forth the additional
amount or amounts to be paid to it hereunder which shall be conclusive in the
absence of manifest error. In determining such amount, such Lender may use any
reasonable averaging and attribution methods.



3.10 TREATMENT OF AFFECTED LOANS.



If the obligation of any Lender to make any Eurodollar Loan or to
continue, or to convert Base Rate Loans into, Eurodollar Loans shall be
suspended pursuant to Section 3.8 or 3.9 hereof, such Lender’s Eurodollar Loans
shall be automatically converted into Base Rate Loans on the last day(s) of the
then current Interest Period(s) for such Eurodollar Loans (or, in the case of a
conversion required by Section 3.8 hereof, on such earlier date as such Lender
may specify to the Borrower with a copy to the Administrative Agent) and, unless
and until such Lender gives notice as provided below that the circumstances
specified in Section 3.8 or 3.9 hereof that gave rise to such conversion no
longer exist:




(a) to the extent that such Lender’s Eurodollar Loans have
been so converted, all payments and prepayments of principal that would
otherwise be applied to such Lender’s Eurodollar Loans shall be applied
instead to its Base Rate Loans; and




(b) all Loans that would otherwise be made or continued by
such Lender as Eurodollar Loans shall be made or continued instead as
Base Rate Loans, and all Base Rate Loans of such Lender that would
otherwise be converted into Eurodollar Loans shall remain as Base Rate
Loans.



If such Lender gives notice to the Borrower (with a copy to the Administrative
Agent) that the circumstances specified in Section 3.8 or 3.9 hereof that gave
rise to the conversion of such Lender’s Eurodollar Loans pursuant to this
Section 3.10 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Eurodollar Loans made by other
Lenders are outstanding, such Lender’s Base Rate Loans shall be automatically
converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Eurodollar Loans, to the extent necessary so that, after giving
effect thereto, all Loans held by the Lenders holding Eurodollar Loans and by
such Lender are held pro rata (as to principal amounts, interest rate basis, and
Interest Periods) in accordance with their respective Commitments.



3.11 TAXES.




(a) Any and all payments by any Credit Party to or for the
account of any Lender or the Administrative Agent hereunder or under any
other Credit Document shall be made free and clear of and without
deduction for any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, EXCLUDING, in the case of each Lender and the
Administrative Agent, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Lender
(or its Applicable Lending Office) or the Administrative Agent (as the
case may be) is organized or any political subdivision thereof (all such
non-excluded taxes, duties, levies, imposts, deductions, charges,
withholdings, and liabilities being hereinafter referred to as “TAXES”).
If any Credit Party shall be required by law to deduct any Taxes from or
in respect of any sum payable under this Credit Agreement or any other
Credit Document to any Lender or the Administrative Agent, (i) the sum
payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this Section 3.11) such Lender or the Administrative Agent
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Credit Party shall make such deductions,
(iii) such Credit Party shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law, and (iv) such Credit Party shall



 


34









 






furnish to the Administrative Agent, at its address referred to in
Section 11.1, the original or a certified copy of a receipt evidencing
payment thereof.




(b) In addition, the Borrower agrees to pay any and all
present or future stamp or documentary taxes and any other excise or
property taxes or charges or similar levies which arise from any payment
made under this Credit Agreement or any other Credit Document or from
the execution or delivery of, or otherwise with respect to, this Credit
Agreement or any other Credit Document (hereinafter referred to as
“OTHER TAXES”).




(c) The Borrower agrees to indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed or
asserted by any jurisdiction on amounts payable under this Section 3.11)
paid by such Lender or the Administrative Agent (as the case may be) and
any liability (including penalties, interest, and expenses) arising
therefrom or with respect thereto.




(d) Each Lender that is not a United States person under
Section 7701(a)(30) of the Code (a “FOREIGN LENDER”), on or prior to the
date of its execution and delivery of this Credit Agreement in the case
of each Lender listed on the signature pages hereof and on or prior to
the date on which it becomes a Lender in the case of each other Lender,
and from time to time thereafter if requested in writing by the Borrower
or the Administrative Agent (but only so long as such Lender remains
lawfully able to do so), shall provide the Borrower and the
Administrative Agent with (i) Internal Revenue Service Form 1001 or
4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits
under an income tax treaty to which the United States is a party which
reduces the rate of withholding tax on payments of interest or
certifying that the income receivable pursuant to this Credit Agreement
is effectively connected with the conduct of a trade or business in the
United States, (ii) Internal Revenue Service Form W-8 or W-9, as
appropriate, or any successor form prescribed by the Internal Revenue
Service, and (iii) any other form or certificate required by any taxing
authority (including any certificate required by Sections 871(h) and
881(c) of the Internal Revenue Code), certifying that such Lender is
entitled to an exemption from or a reduced rate of tax on payments
pursuant to this Credit Agreement or any of the other Credit Documents.




(e) For any period with respect to which a Lender has failed
to provide the Borrower and the Administrative Agent with the
appropriate form pursuant to Section 3.11(d) (unless such failure is due
to a change in treaty, law, or regulation occurring subsequent to the
date on which a form originally was required to be provided), such
Lender shall not be entitled to indemnification under Section 3.11(a) or
3.11(b) with respect to Taxes imposed by the United States; PROVIDED,
HOWEVER, that should a Lender, which is otherwise exempt from or subject
to a reduced rate of withholding tax, become subject to Taxes because of
its failure to deliver a form required hereunder, the Borrower shall
take such steps as such Lender shall reasonably request to assist such
Lender to recover such Taxes.




(f) If any Credit Party is required to pay additional
amounts to or for the account of any Lender pursuant to this Section
3.11, then such Lender will agree to use reasonable efforts to change
the jurisdiction of its Applicable Lending Office so as to eliminate or
reduce any such additional payment which may thereafter accrue if such
change, in the reasonable judgment of such Lender, is not otherwise
disadvantageous to such Lender.




(g) Within thirty (30) days after the date of any payment of
Taxes, the applicable Credit Party shall furnish to the Administrative
Agent the original or a certified copy of a receipt evidencing such
payment.


 


35









 






(h) Without prejudice to the survival of any other agreement
of the Credit Parties hereunder, the agreements and obligations of the
Credit Parties contained in this Section 3.11 shall survive the
repayment of the Loans, LOC Obligations and other obligations under the
Credit Documents and the termination of the Commitments hereunder.



3.12 COMPENSATION.



Upon the request of any Lender, the Borrower shall pay to such Lender
such amount or amounts as shall be sufficient (in the reasonable opinion of such
Lender) to compensate it for any loss, cost, or expense (including loss of
anticipated profits) incurred by it as a result of:




(a) any payment, prepayment, or conversion of a Eurodollar
Loan for any reason (including, without limitation, the acceleration of
the Loans pursuant to Section 9.2) on a date other than the last day of
the Interest Period for such Loan; or




(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any condition precedent specified in
Section 5 to be satisfied) to borrow, convert, continue, or prepay a
Eurodollar Loan on the date for such borrowing, conversion,
continuation, or prepayment specified in the relevant notice of
borrowing, prepayment, continuation, or conversion under this Credit
Agreement.



With respect to Eurodollar Loans, such indemnification may include an amount
equal to the excess, if any, of (a) the amount of interest which would have
accrued on the amount so prepaid, or not so borrowed, converted or continued,
for the period from the date of such prepayment or of such failure to borrow,
convert or continue to the last day of the applicable Interest Period (or, in
the case of a failure to borrow, convert or continue, the Interest Period that
would have commenced on the date of such failure) in each case at the applicable
rate of interest for such Eurodollar Loans provided for herein (excluding,
however, the Applicable Percentage included therein, if any) over (b) the amount
of interest (as reasonably determined by such Lender) which would have accrued
to such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank Eurodollar market. The covenants of
the Borrower set forth in this Section 3.12 shall survive the repayment of the
Loans, LOC Obligations and other obligations under the Credit Documents and the
termination of the Commitments hereunder.



3.13 PRO RATA TREATMENT.



Except to the extent otherwise provided herein:




(a) LOANS. Each Loan, each payment or (subject to the terms
of Section 3.3) prepayment of principal of any Loan or reimbursement
obligations arising from drawings under Letters of Credit, each payment
of interest on the Loans or reimbursement obligations arising from
drawings under Letters of Credit, each payment of Unused Fees, each
payment of the Standby Letter of Credit Fee, each payment of the Trade
Letter of Credit Fee, each reduction in Commitments and each conversion
or extension of any Loan, shall be allocated pro rata among the Lenders
in accordance with the respective principal amounts of their outstanding
Revolving Loans and Participation Interests.




(b) ADVANCES. The obligations of the Lenders hereunder to
make Loans and to fund Participation Interests in Letters of Credit and
Swingline Loans or to make any payment under Section 11.5(c) are several
and not joint. The failure of any Lender to make any Loan or to fund any
such Participation Interests or to make any payment under Section
11.5(c) on any date required



 


36









 






hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for
the failure of any other Lender to so make its Loan, purchase its
Participation Interests or to make any payment under Section 11.5(c).




(c) (i) FUNDING BY LENDERS; PRESUMPTION BY ADMINISTRATIVE
AGENT. Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any borrowing of Eurodollar Loans
(or, in the case of any borrowing of Base Rate Loans, prior to 12:00
noon on the date of such borrowing) that such Lender will not make
available to the Administrative Agent such Lender’s share of such
borrowing, the Administrative Agent may assume that such Lender has made
such share available on such date in accordance with Section 2.1 (or, in
the case of a borrowing of Base Rate Loans, that such Lender has made
such share available in accordance with and at the time required by
Section 2.1) and may, in reliance upon such assumption, make available
to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower
severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount in immediately available funds with interest
thereon, for each day from and including the date such amount is made
available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (A) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Rate and a rate determined by
the Administrative Agent in accordance with banking industry rules on
interbank compensation, plus any administrative, processing or similar
fees customarily charged by the Administrative Agent in connection with
the foregoing, and (B) in the case of a payment to be made by the
Borrower, the interest rate applicable to Base Rate Loans; the
Administrative Agent shall not request that the Borrower make such
payment unless such Lender has not made such payment to the
Administrative Agent within two Business Days following demand. If the
Borrower and such Lender shall pay such interest to the Administrative
Agent for the same or an overlapping period, the Administrative Agent
shall promptly remit to the Borrower the amount of such interest paid by
the Borrower for such period. If such Lender pays its share of the
applicable borrowing to the Administrative Agent, then the amount so
paid shall constitute such Lender’s Loan included in such borrowing. Any
payment by the Borrower shall be without prejudice to any claim the
Borrower may have against a Lender that shall have failed to make such
payment to the Administrative Agent.




(ii) PAYMENTS BY BORROWER; PRESUMPTIONS BY
ADMINISTRATIVE AGENT. Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which any payment
is due to the Administrative Agent for the account of the Lenders or the
Issuing Lender hereunder that the Borrower will not make such payment,
the Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders or the Issuing Lender, as the
case may be, the amount due. In such event, if the Borrower has not in
fact made such payment, then each of the Lenders or the Issuing Lender,
as the case may be, severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender or
the Issuing Lender, in immediately available funds with interest
thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.



A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (c) shall be conclusive,
absent manifest error.



3.14 SHARING OF PAYMENTS.


 


37









 





The Lenders agree among themselves that, in the event that any Lender
shall obtain payment in respect of any Loan, LOC Obligations or any other
obligation owing to such Lender under this Credit Agreement through the exercise
of a right of setoff, banker’s lien or counterclaim, or pursuant to a secured
claim under Section 506 of Title 11 of the United States Code or other security
or interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, in excess of its pro rata share of such
payment as provided for in this Credit Agreement, such Lender shall promptly
purchase from the other Lenders a Participation Interest in such Loans, LOC
Obligations and other obligations in such amounts, and make such other
adjustments from time to time, as shall be equitable to the end that all Lenders
share such payment in accordance with their respective ratable shares as
provided for in this Credit Agreement. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a right of setoff, banker’s lien, counterclaim or other event as
aforesaid shall be rescinded or must otherwise be restored, each Lender which
shall have shared the benefit of such payment shall, by repurchase of a
Participation Interest theretofore sold, return its share of that benefit
(together with its share of any accrued interest payable with respect thereto)
to each Lender whose payment shall have been rescinded or otherwise restored.
The Borrower agrees that any Lender so purchasing such a Participation Interest
may, to the fullest extent permitted by law, exercise all rights of payment,
including setoff, banker’s lien or counterclaim, with respect to such
Participation Interest as fully as if such Lender were a holder of such Loan,
LOC Obligations or other obligation in the amount of such Participation
Interest. Except as otherwise expressly provided in this Credit Agreement, if
any Lender or the Administrative Agent shall fail to remit to the Administrative
Agent or any other Lender an amount payable by such Lender or the Administrative
Agent to the Administrative Agent or such other Lender pursuant to this Credit
Agreement on the date when such amount is due, such payments shall be made
together with interest thereon for each date from the date such amount is due
until the date such amount is paid to the Administrative Agent or such other
Lender at a rate per annum equal to the Federal Funds Rate. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section 3.14 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders under this
Section 3.14 to share in the benefits of any recovery on such secured claim.



3.15 PAYMENTS, COMPUTATIONS; RETROACTIVE ADJUSTMENTS OF APPLICABLE
RATE.



(a) All payments hereunder shall be made to the
Administrative Agent in Dollars in immediately available funds, without
recoupment, setoff, deduction, counterclaim or withholding of any kind, and,
except as otherwise specifically provided herein, at the Administrative Agent’s
office specified in SCHEDULE 2.1(A) not later than 2:00 p.m. (Charlotte, North
Carolina time) on the date when due. Payments received after such time shall be
deemed to have been received on the next succeeding Business Day. The
Administrative Agent may (but shall not be obligated to) debit the amount of any
such payment which is not made by such time to any ordinary deposit account of
the Borrower or any other Credit Party maintained with the Administrative Agent
(with notice to the Borrower or such other Credit Party). The Borrower shall, at
the time it makes any payment under this Credit Agreement, specify to the
Administrative Agent the Loans, LOC Obligations, Fees, interest or other amounts
payable by the Borrower hereunder to which such payment is to be applied (and in
the event that it fails so to specify, or if such application would be
inconsistent with the terms hereof, the Administrative Agent shall distribute
such payment to the Lenders in such manner as the Administrative Agent may
determine to be appropriate in respect of obligations owing by the Borrower
hereunder, subject to the terms of Section 3.13(a)). The Administrative Agent
will distribute such payments to such Lenders, if any such payment is received
prior to 2:00 p.m. (Charlotte, North Carolina time) on a Business Day in like
funds as received prior to the end of such



 


38









 






Business Day and otherwise the Administrative Agent will distribute such
payment to such Lenders on the next succeeding Business Day. Whenever
any payment hereunder shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next
succeeding Business Day (subject to accrual of interest and Fees for the
period of such extension), except that in the case of Eurodollar Loans,
if the extension would cause the payment to be made in the next
following calendar month, then such payment shall instead be made on the
next preceding Business Day. Except as expressly provided otherwise
herein, all computations of interest and fees shall be made on the basis
of actual number of days elapsed over a year of 360 days. Interest shall
accrue from and include the date of borrowing, but exclude the date of
payment.




If, as a result of any restatement of or other adjustment to the
financial statements of the Borrower or for any other reason, the
Borrower or the Lenders determine that (i) the Leverage Ratio as
calculated by the Borrower as of any applicable date was inaccurate and
(ii) a proper calculation of the Leverage Ratio would have resulted in
higher pricing for such period, the Borrower shall immediately and
retroactively be obligated to pay to the Administrative Agent for the
account of the applicable Lenders, promptly on demand by the
Administrative Agent (or, after the occurrence of an actual or deemed
entry of an order for relief with respect to the Borrower under the
Bankruptcy Code, automatically and without further action by the
Administrative Agent, any Lender or the Issuing Lender), an amount equal
to the excess of the amount of interest and fees that should have been
paid for such period over the amount of interest and fees actually paid
for such period. This paragraph shall not limit the rights of the
Administrative Agent, any Lender or the Issuing Lender, as the case may
be, under Section 2.2(c)(iii) or 3.5(b) or under Section 9.




(b) ALLOCATION OF PAYMENTS AFTER ACCELERATION.
Notwithstanding any other provisions of this Credit Agreement to the
contrary, after the acceleration of the Credit Party Obligations
pursuant to Section 9.2, all amounts collected or received by the
Administrative Agent or any Lender on account of the Credit Party
Obligations or any other amounts outstanding under any of the Credit
Documents or in respect of the Collateral shall be paid over or
delivered as follows:




FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation reasonable attorneys’ fees) of
the Administrative Agent in connection with enforcing the rights of the
Lenders under the Credit Documents;




SECOND, to payment of any fees owed to the Administrative Agent;




THIRD, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation, reasonable attorneys’ fees) of
each of the Lenders in connection with enforcing its rights under the
Credit Documents or otherwise with respect to the Credit Party
Obligations owing to such Lender;




FOURTH, to the payment of all of the Credit Party Obligations
consisting of accrued fees and interest;




FIFTH, to the payment of the outstanding principal amount of the
Credit Party Obligations (including the payment or cash
collateralization of the outstanding LOC Obligations);




SIXTH, to all other Credit Party Obligations and other
obligations which shall have become due and payable under the Credit
Documents or otherwise and not repaid pursuant to clauses “FIRST”
through “FIFTH” above; and


 


39









 






SEVENTH, to the payment of the surplus, if any, to whoever may
be lawfully entitled to receive such surplus.




In carrying out the foregoing, (i) amounts received shall be applied in
the numerical order provided until exhausted prior to application to the
next succeeding category; (ii) each of the Lenders shall receive an
amount equal to its pro rata share (based on the proportion that the
then outstanding Loans and LOC Obligations held by such Lender bears to
the aggregate then outstanding Loans and LOC Obligations) of amounts
available to be applied pursuant to clauses “THIRD”, “FOURTH”, “FIFTH”
and “SIXTH” above; and (iii) to the extent that any amounts available
for distribution pursuant to clause “FIFTH” above are attributable to
the issued but undrawn amount of outstanding Letters of Credit, such
amounts shall be held by the Administrative Agent in a cash collateral
account and applied (A) first, to reimburse the Issuing Lender from time
to time for any drawings under such Letters of Credit and (B) then,
following the expiration of all Letters of Credit, to all other
obligations of the types described in clauses “FIFTH” and “SIXTH” above
in the manner provided in this Section 3.15(b).




3.16 EVIDENCE OF DEBT.




(a) Each Lender shall maintain an account or accounts
evidencing each Loan made by such Lender to the Borrower from time to
time, including the amounts of principal and interest payable and paid
to such Lender from time to time under this Credit Agreement. Each
Lender will make reasonable efforts to maintain the accuracy of its
account or accounts and to promptly update its account or accounts from
time to time, as necessary.




(b) The Administrative Agent shall maintain the Register
pursuant to Section 11.3(c), and a subaccount for each Lender, in which
Register and subaccounts (taken together) shall be recorded (i) the
amount, type and Interest Period of each such Loan hereunder, (ii) the
amount of any principal or interest due and payable or to become due and
payable to each Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder from or for the account
of any Credit Party and each Lender’s share thereof. The Administrative
Agent will make reasonable efforts to maintain the accuracy of the
subaccounts referred to in the preceding sentence and to promptly update
such subaccounts from time to time, as necessary.




(c) The entries made in the accounts, Register and
subaccounts maintained pursuant to subsection (b) of this Section 3.16
(and, if consistent with the entries of the Administrative Agent,
subsection (a)) shall be prima facie evidence of the existence and
amounts of the obligations of the Credit Parties therein recorded;
PROVIDED, HOWEVER, that the failure of any Lender or the Administrative
Agent to maintain any such account, such Register or such subaccount, as
applicable, or any error therein, shall not in any manner affect the
obligation of the Credit Parties to repay the Credit Party obligations
owing to such Lender.



SECTION 4




GUARANTY




4.1 THE GUARANTY.



Each of the Guarantors hereby jointly and severally guarantees to each
Lender, each Affiliate of a Lender that enters into a Hedging Agreement, and the
Administrative Agent as hereinafter provided, as primary obligor and not as
surety, the prompt payment of the Credit Party Obligations in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash



 


40









 






collateralization or otherwise) strictly in accordance with the terms thereof.
The Guarantors hereby further agree that if any of the Credit Party Obligations
are not paid in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or
otherwise), the Guarantors will, jointly and severally, promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the Credit Party Obligations, the same
will be promptly paid in full when due (whether at extended maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) in accordance with the terms of such extension or renewal.



Notwithstanding any provision to the contrary contained herein or in any
other of the Credit Documents or Hedging Agreements, the obligations of each
Guarantor hereunder shall be limited to an aggregate amount equal to the largest
amount that would not render its obligations hereunder subject to avoidance
under Section 548 of the Bankruptcy Code or any comparable provisions of any
applicable state law.



4.2 OBLIGATIONS UNCONDITIONAL.



The obligations of the Guarantors under Section 4.1 are joint and
several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Credit Documents or Hedging
Agreements, or any other agreement or instrument referred to therein, or any
substitution, release, impairment or exchange of any other guarantee of or
security for any of the Credit Party Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor, it being the intent of this Section 4.2 that the
obligations of the Guarantors hereunder shall be absolute and unconditional
under any and all circumstances. Each Guarantor agrees that such Guarantor shall
have no right of subrogation, indemnity, reimbursement or contribution against
the Borrower or any other Guarantor for amounts paid under this Section 4 until
such time as the Lenders (and any Affiliates of Lenders entering into Hedging
Agreements) have been paid in full, all Commitments under this Credit Agreement
have been terminated and no Person or Governmental Authority shall have any
right to request any return or reimbursement of funds from the Lenders in
connection with monies received under the Credit Documents or Hedging
Agreements. Without limiting the generality of the foregoing, it is agreed that,
to the fullest extent permitted by law, the occurrence of any one or more of the
following shall not alter or impair the liability of any Guarantor hereunder
which shall remain absolute and unconditional as described above:




(a) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with any of the
Credit Party Obligations shall be extended, or such performance or
compliance shall be waived;




(b) any of the acts mentioned in any of the provisions of
any of the Credit Documents, any Hedging Agreement or any other
agreement or instrument referred to in the Credit Documents or Hedging
Agreements shall be done or omitted;




(c) the maturity of any of the Credit Party Obligations
shall be accelerated, or any of the Credit Party Obligations shall be
modified, supplemented or amended in any respect, or any right under any
of the Credit Documents, any Hedging Agreement or any other agreement or
instrument referred to in the Credit Documents or Hedging Agreements
shall be waived or any other guarantee of any of the Credit Party
Obligations or any security therefor shall be released, impaired or
exchanged in whole or in part or otherwise dealt with;




(d) any Lien granted to, or in favor of, the Administrative
Agent or any Lender or Lenders as security for any of the Credit Party
Obligations shall fail to attach or be perfected; or



 


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(e) any of the Credit Party Obligations shall be determined
to be void or voidable (including, without limitation, for the benefit
of any creditor of any Guarantor) or shall be subordinated to the claims
of any Person (including, without limitation, any creditor of any
Guarantor).



With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Administrative Agent or any Lender
exhaust any right, power or remedy or proceed against any Person under any of
the Credit Documents, any Hedging Agreement or any other agreement or instrument
referred to in the Credit Documents or Hedging Agreements, or against any other
Person under any other guarantee of, or security for, any of the Credit Party
Obligations.



4.3 REINSTATEMENT.



The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Credit Party Obligations is
rescinded or must be otherwise restored by any holder of any of the Credit Party
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, fees and expenses of counsel) incurred
by the Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.



4.4 CERTAIN ADDITIONAL WAIVERS.



Each Guarantor further agrees that such Guarantor shall have no right of
recourse to security for the Credit Party Obligations, except through the
exercise of rights of subrogation pursuant to Section 4.2 and through the
exercise of rights of contribution pursuant to Section 4.6.



4.5 REMEDIES.



The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, the Credit Party Obligations may be declared to be
forthwith due and payable as provided in Section 9.2 (and shall be deemed to
have become automatically due and payable in the circumstances provided in said
Section 9.2) for purposes of Section 4.1 notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing the Credit Party
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or the Credit Party
Obligations being deemed to have become automatically due and payable), the
Credit Party Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Guarantors for purposes of Section
4.1.



4.6 RIGHTS OF CONTRIBUTION.



The Guarantors hereby agree as among themselves that, if any Guarantor
shall make an Excess Payment (as defined below), such Guarantor shall have a
right of contribution from each other Guarantor in an amount equal to such other
Guarantor’s Contribution Share (as defined below) of such Excess Payment. The
payment obligations of any Guarantor under this Section 4.6 shall be subordinate
and subject in right of payment to the prior payment in full to the
Administrative Agent and the Lenders of the Guaranteed Obligations, and none of
the Guarantors shall exercise any right or remedy under this Section 4.6 against
any



 


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other Guarantor until payment and satisfaction in full of all of such Guaranteed
Obligations. For purposes of this Section 4.6, (a) “GUARANTEED OBLIGATIONS”
shall mean any obligations arising under the other provisions of this Section 4;
(b) “EXCESS PAYMENT” shall mean the amount paid by any Guarantor in excess of
its Pro Rata Share of any Guaranteed Obligations; (c) “PRO RATA SHARE” shall
mean, for any Guarantor in respect of any payment of Guaranteed Obligations, the
ratio (expressed as a percentage) as of the date of such payment of Guaranteed
Obligations of (i) the amount by which the aggregate present fair salable value
of all of its assets and properties exceeds the amount of all debts and
liabilities of such Guarantor (including contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of such Guarantor
hereunder) to (ii) the amount by which the aggregate present fair salable value
of all assets and other properties of all of the Credit Parties exceeds the
amount of all of the debts and liabilities (including contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the obligations of the
Credit Parties hereunder) of the Credit Parties; PROVIDED, HOWEVER, that, for
purposes of calculating the Pro Rata Shares of the Guarantors in respect of any
payment of Guaranteed Obligations, any Guarantor that became a Guarantor
subsequent to the date of any such payment shall be deemed to have been a
Guarantor on the date of such payment and the financial information for such
Guarantor as of the date such Guarantor became a Guarantor shall be utilized for
such Guarantor in connection with such payment; and (D) “CONTRIBUTION SHARE”
shall mean, for any Guarantor in respect of any Excess Payment made by any other
Guarantor, the ratio (expressed as a percentage) as of the date of such Excess
Payment of (i) the amount by which the aggregate present fair salable value of
all of its assets and properties exceeds the amount of all debts and liabilities
of such Guarantor (including contingent, subordinated, unmatured, and
unliquidated liabilities, but excluding the obligations of such Guarantor
hereunder) to (ii) the amount by which the aggregate present fair salable value
of all assets and other properties of the Credit Parties other than the maker of
such Excess Payment exceeds the amount of all of the debts and liabilities
(including contingent, subordinated, unmatured, and unliquidated liabilities,
but excluding the obligations of the Credit Parties) of the Credit Parties other
than the maker of such Excess Payment; PROVIDED, HOWEVER, that, for purposes of
calculating the Contribution Shares of the Guarantors in respect of any Excess
Payment, any Guarantor that became a Guarantor subsequent to the date of any
such Excess Payment shall be deemed to have been a Guarantor on the date of such
Excess Payment and the financial information for such Guarantor as of the date
such Guarantor became a Guarantor shall be utilized for such Guarantor in
connection with such Excess Payment. This Section 4.6 shall not be deemed to
affect any right of subrogation, indemnity, reimbursement or contribution that
any Guarantor may have under applicable law against the Borrower in respect of
any payment of Guaranteed Obligations.



4.7 GUARANTEE OF PAYMENT; CONTINUING GUARANTEE.



The guarantee in this Section 4 is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Credit Party
Obligations whenever arising.



SECTION 5




CONDITIONS




5.1 CLOSING CONDITIONS.



The obligation of the Lenders to enter into this Credit Agreement and to
make the initial Loans or the Issuing Lender to issue the initial Letter of
Credit, whichever shall occur first, shall be subject to satisfaction of the
following conditions (in form and substance acceptable to the Lenders):




(a) EXECUTED CREDIT DOCUMENTS. Receipt by the Administrative
Agent of duly executed copies of: (i) this Credit Agreement, (ii) the
Notes and (iii) all other Credit Documents, each in form and substance
acceptable to the Administrative Agent in its sole discretion.



 


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(b) CORPORATE DOCUMENTS. Receipt by the Administrative Agent
of the following:




(i) CHARTER DOCUMENTS. Copies of the articles or
certificates of incorporation or other charter documents of each
Credit Party certified to be true and complete as of a recent
date by the appropriate Governmental Authority of the state or
other jurisdiction of its incorporation and certified by a
secretary or assistant secretary of such Credit Party to be true
and correct as of the Closing Date.




(ii) BYLAWS. A copy of the bylaws of each Credit
Party certified by a secretary or assistant secretary of such
Credit Party to be true and correct as of the Closing Date.




(iii) RESOLUTIONS. Copies of resolutions of the Board
of Directors of each Credit Party approving and adopting the
Credit Documents to which it is a party, the transactions
contemplated therein and authorizing execution and delivery
thereof, certified by a secretary or assistant secretary of such
Credit Party to be true and correct and in force and effect as
of the Closing Date.




(iv) GOOD STANDING. Copies of certificates of good
standing, existence or its equivalent with respect to each
Credit Party certified as of a recent date by the appropriate
Governmental Authorities of the state or other jurisdiction of
incorporation and Tennessee and each other jurisdiction in which
the failure to so qualify and be in good standing could have a
Material Adverse Effect.




(v) INCUMBENCY. An incumbency certificate of each
Credit Party certified by a secretary or assistant secretary to
be true and correct as of the Closing Date.




(c) FINANCIAL STATEMENTS. Receipt by the Administrative
Agent of the consolidated and consolidating financial statements of the
Borrower and its Subsidiaries, including balance sheets and income and
cash flow statements for the fiscal year ended December 31, 2005 and
audited by nationally recognized independent public accountants and
containing an unqualified opinion of such firm that such statements
present fairly the consolidated and consolidating financial position of
the Borrower and its Subsidiaries and are prepared in conformity with
GAAP.




(d) OPINIONS OF COUNSEL. The Administrative Agent shall have
received a legal opinion in form and substance reasonably satisfactory
to the Administrative Agent dated as of the Closing Date from counsel to
the Credit Parties.




(e) MATERIAL ADVERSE EFFECT. No material adverse change
shall have occurred since December 31, 2005 in the condition (financial
or otherwise), business, assets, liabilities, operations, management or
prospects of the Consolidated Parties taken as a whole.




(f) LITIGATION. There shall not exist any pending or
threatened action, suit, investigation or proceeding against a
Consolidated Party that could have a Material Adverse Effect.




(g) OFFICER’S CERTIFICATES. The Administrative Agent shall
have received a certificate or certificates executed by the chief
financial officer of the Borrower as of the Closing Date stating that
(A) each Credit Party is in compliance with all existing financial
obligations, (B) all governmental, shareholder and third party consents
and approvals, if any, with respect to the Credit Documents and the
transactions contemplated thereby have been obtained, (C) no action,
suit, investigation or proceeding is pending or threatened in any court
or before any arbitrator or governmental



 


44









 






instrumentality that purports to affect any Credit Party or any
transaction contemplated by the Credit Documents, if such action, suit,
investigation or proceeding could have a Material Adverse Effect, and
(D) immediately after giving effect to this Credit Agreement, the other
Credit Documents and all the transactions contemplated therein to occur
on such date, (1) each of the Credit Parties is Solvent, (2) no Default
or Event of Default exists, (3) all representations and warranties
contained herein and in the other Credit Documents are true and correct
in all material respects, and (4) the Credit Parties are in compliance
with each of the financial covenants set forth in Section 7.11.




(h) FEES AND EXPENSES. Payment by the Credit Parties of all
fees and expenses owed by them to the Lenders and the Administrative
Agent, including, without limitation, payment to the Administrative
Agent of the fees set forth in the Fee Letter.



Without limiting the generality of the last paragraph of Section 10.4,
for purposes of determining compliance with the conditions specified in this
Section 5.1, each Lender that has signed this Credit Agreement shall be deemed
to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.



5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.



The obligations of each Lender to make, convert or extend any Loan and
of the Issuing Lender to issue or extend any Letter of Credit (including the
initial Loans and the initial Letter of Credit) are subject to satisfaction of
the following conditions in addition to satisfaction on the Closing Date of the
conditions set forth in Section 5.1:




(a) The Borrower shall have delivered (i) in the case of any
Revolving Loan, an appropriate Notice of Borrowing or Notice of
Extension/Conversion or (ii) in the case of any Letter of Credit, the
Issuing Lender shall have received an appropriate request for issuance
in accordance with the provisions of Section 2.2(b);




(b) The representations and warranties set forth in Section
6 (other than Sections 6.2 and 6.8) shall, subject to the limitations
set forth therein, be true and correct in all material respects as of
such date (except for those which expressly relate to an earlier date);




(c) No Default or Event of Default shall exist and be
continuing either prior to or after giving effect thereto; and




(d) Immediately after giving effect to the making of such
Loan (and the application of the proceeds thereof) or to the issuance of
such Letter of Credit, as the case may be, (i) the sum of the aggregate
principal amount of outstanding Revolving Loans PLUS LOC Obligations
outstanding PLUS outstanding Swingline Loans shall not exceed the
Revolving Committed Amount and (ii) the LOC Obligations shall not exceed
the LOC Committed Amount.



The delivery of each Notice of Borrowing, each Notice of Extension/Conversion
and each request for a Letter of Credit pursuant to Section 2.2(b) shall
constitute a representation and warranty by the Credit Parties of the
correctness of the matters specified in subsections (b), (c) and (d) above.


 


45









 





SECTION 6




REPRESENTATIONS AND WARRANTIES




The Credit Parties hereby represent to the Administrative Agent and each
Lender that:



6.1 FINANCIAL CONDITION.



The financial statements delivered to the Lenders pursuant to Section
5.1(c) and Section 7.1(a) and (b), (i) have been prepared in accordance with
GAAP and (ii) present fairly (on the basis disclosed in the footnotes to such
financial statements) in all material respects the consolidated and
consolidating financial condition, results of operations and cash flows of the
Consolidated Parties as of such date and for such periods.



6.2 NO MATERIAL CHANGE.



Since December 31, 2005, (a) there has been no development or event
relating to or affecting a Consolidated Party which has had or could reasonably
be expected to have a Material Adverse Effect and (b) except as otherwise
permitted under this Credit Agreement, no dividends or other distributions have
been declared, paid or made upon the Capital Stock in a Consolidated Party nor
has any of the Capital Stock in a Consolidated Party been redeemed, retired,
purchased or otherwise acquired for value.



6.3 ORGANIZATION AND GOOD STANDING; COMPLIANCE WITH LAW.



Each of the Consolidated Parties (a) is duly organized, validly existing
and is in good standing under the laws of the jurisdiction of its incorporation
or organization, (b) has the requisite power and authority to own and operate
all its property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged and (c) is duly qualified to conduct
business and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification except to the extent that the failure to so qualify
or be in good standing could not reasonably be expected to have a Material
Adverse Effect.



6.4 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.



Each of the Credit Parties has the corporate or other necessary power
and authority, to make, deliver and perform the Credit Documents to which it is
a party, and in the case of the Borrower, to obtain extensions of credit
hereunder, and has taken all necessary corporate action to authorize the
borrowings and other extensions of credit on the terms and conditions of this
Credit Agreement and to authorize the execution, delivery and performance of the
Credit Documents to which it is a party. No consent or authorization of, filing
with, notice to or other similar act by or in respect of, any Governmental
Authority or any other Person is required to be obtained or made by or on behalf
of any Credit Party in connection with the borrowings or other extensions of
credit hereunder or with the execution, delivery, performance, validity or
enforceability of the Credit Documents to which such Credit Party is a party.
This Credit Agreement has been, and each other Credit Document to which any
Credit Party is a party will be, duly executed and delivered on behalf of the
Credit Parties. This Credit Agreement constitutes, and each other Credit
Document to which any Credit Party is a party when executed and delivered will
constitute, a legal, valid and binding obligation of such Credit Party
enforceable against such party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).



 


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6.5 NO CONFLICTS.



Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated therein, nor performance of and
compliance with the terms and provisions thereof by such Credit Party will (a)
violate or conflict with any provision of its articles or certificate of
incorporation or bylaws or other organizational or governing documents of such
Person, (b) violate, contravene or materially conflict with any material
Requirement of Law or any other material law, regulation (including, without
limitation, Regulation U or Regulation X), order, writ, judgment, injunction,
decree or permit applicable to it, (c) violate, contravene or conflict with
contractual provisions of, or cause an event of default under, any indenture,
loan agreement, mortgage, deed of trust, contract or other agreement or
instrument to which it is a party or by which it may be bound, the violation of
which could reasonably be expected to have a Material Adverse Effect, or (d)
result in or require the creation of any Lien upon or with respect to its
properties. No Default or Event of Default has occurred and is continuing.



6.6 OWNERSHIP.



Each Consolidated Party is the owner of, and has good and marketable
title to, all of its respective assets that are necessary for the operation of
their respective businesses and none of such assets is subject to any Lien other
than Permitted Liens.



6.7 [Intentionally Omitted.]



6.8 LITIGATION.



There are no actions, suits or legal, equitable, arbitration or
administrative proceedings, pending or, to the knowledge of any Credit Party,
threatened against any Consolidated Party which could reasonably be expected to
have a Material Adverse Effect.



6.9 TAXES.



Each Consolidated Party has filed, or caused to be filed, all material
income tax returns and all other material tax returns (federal, state, local and
foreign) required to be filed and paid (a) all amounts of taxes shown thereon to
be due (including interest and penalties) and (b) all other material taxes,
fees, assessments and other governmental charges (including mortgage recording
taxes, documentary stamp taxes and intangibles taxes) owing by it, except for
such taxes (i) which are not yet delinquent or (ii) that are being contested in
good faith and by proper proceedings, and against which adequate reserves are
being maintained in accordance with GAAP. No Credit Party is aware as of the
Closing Date of any proposed tax assessments against it or any Consolidated
Party.



6.10 COMPLIANCE WITH LAW.



Each Consolidated Party is in compliance with all Requirements of Law
and all other laws, rules, regulations, orders and decrees (including without
limitation Environmental Laws) applicable to it, or to its properties, unless
such failure to comply could not reasonably be expected to have a Material
Adverse Effect.



6.11 ERISA.




(a) Except as could not reasonably be expected to have a
Material Adverse Effect, during the five-year period prior to the date
on which this representation is made or deemed made: (i) no ERISA Event
has occurred, and, to the best knowledge of the Credit Parties, no event
or condition has occurred or exists as a result of which any ERISA Event
could reasonably be expected



 


47









 






to occur, with respect to any Plan; (ii) no “accumulated funding
deficiency,” as such term is defined in Section 302 of ERISA and Section
412 of the Code, whether or not waived, has occurred with respect to any
Plan; (iii) each Plan has been maintained, operated, and funded in
compliance with its own terms and in material compliance with the
provisions of ERISA, the Code, and any other applicable federal or state
laws; and (iv) no lien in favor of the PBGC or a Plan has arisen or is
reasonably likely to arise on account of any Plan.




(b) The actuarial present value of all “benefit liabilities”
(as defined in Section 4001(a)(16) of ERISA), whether or not vested,
under each Single Employer Plan, as of the last annual valuation date
prior to the date on which this representation is made or deemed made
(determined, in each case, in accordance with Financial Accounting
Standards Board Statement 87, utilizing the actuarial assumptions used
in such Plan’s most recent actuarial valuation report), did not exceed
as of such valuation date the fair market value of the assets of such
Plan.




(c) Neither any Consolidated Party nor any ERISA Affiliate
has incurred, or, to the best knowledge of the Credit Parties, could be
reasonably expected to incur, any withdrawal liability under ERISA to
any Multiemployer Plan or Multiple Employer Plan. Neither any
Consolidated Party nor any ERISA Affiliate would become subject to any
withdrawal liability under ERISA if any Consolidated Party or any ERISA
Affiliate were to withdraw completely from all Multiemployer Plans and
Multiple Employer Plans as of the valuation date most closely preceding
the date on which this representation is made or deemed made. Neither
any Consolidated Party nor any ERISA Affiliate has received any
notification that any Multiemployer Plan is in reorganization (within
the meaning of Section 4241 of ERISA), is insolvent (within the meaning
of Section 4245 of ERISA), or has been terminated (within the meaning of
Title IV of ERISA), and no Multiemployer Plan is, to the best knowledge
of the Credit Parties, reasonably expected to be in reorganization,
insolvent, or terminated.




(d) No prohibited transaction (within the meaning of Section
406 of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility has occurred with respect to a Plan which has subjected
or may subject any Consolidated Party or any ERISA Affiliate to any
liability under Sections 406, 409, 502(i), or 502(l) of ERISA or Section
4975 of the Code, or under any agreement or other instrument pursuant to
which any Consolidated Party or any ERISA Affiliate has agreed or is
required to indemnify any Person against any such liability.




(e) Neither any Consolidated Party nor any ERISA Affiliates
has any material liability with respect to “expected post-retirement
benefit obligations” within the meaning of the Financial Accounting
Standards Board Statement 106. Each Plan which is a welfare plan (as
defined in Section 3(1) of ERISA) to which Sections 601-609 of ERISA and
Section 4980B of the Code apply has been administered in compliance in
all material respects of such sections.




(f) Neither the execution and delivery of this Credit
Agreement nor the consummation of the financing transactions
contemplated thereunder will involve any transaction which is subject to
the prohibitions of Sections 404, 406 or 407 of ERISA or in connection
with which a tax could be imposed pursuant to Section 4975 of the Code.
The representation by the Credit Parties in the preceding sentence is
made in reliance upon and subject to the accuracy of the Lenders’
representation in Section 11.15 with respect to their source of funds
and is subject, in the event that the source of the funds used by the
Lenders in connection with this transaction is an insurance company’s
general asset account, to the application of Prohibited Transaction
Class Exemption 95-60, 60 Fed. Reg. 35,925 (1995), compliance with the
regulations issued under Section 401(c)(1)(A) of ERISA, or the issuance
of any other prohibited transaction exemption or similar relief, to the
effect that assets in an insurance company’s general asset account do
not



 


48









 






constitute assets of an “employee benefit plan” within the meaning of
Section 3(3) of ERISA of a “plan” within the meaning of Section
4975(e)(1) of the Code.



6.12 SUBSIDIARIES.



Set forth on SCHEDULE 6.12 is a complete and accurate list of all
Subsidiaries of each Consolidated Party. Information on SCHEDULE 6.12 includes
jurisdiction of incorporation and the percentage of outstanding shares of each
class owned (directly or indirectly) by such Credit Party. The outstanding
Capital Stock of all such Subsidiaries is validly issued, fully paid and
non-assessable and is owned by each such Consolidated Party, directly or
indirectly, free and clear of all Liens.



6.13 GOVERNMENTAL REGULATIONS, ETC.




(a) No part of the Letters of Credit or proceeds of the
Loans will be used, directly or indirectly, in a manner that would
constitute a violation of Regulation T, Regulation U or Regulation X.
“Margin stock” within the meaning of Regulation U does not constitute
more than 25% of the value of the consolidated assets of the
Consolidated Parties. None of the transactions contemplated by this
Credit Agreement (including, without limitation, the direct or indirect
use of the proceeds of the Loans) will violate or result in a violation
of the Securities Act of 1933, as amended, or the Securities Exchange
Act of 1934, as amended, or regulations issued pursuant thereto, or
Regulation T, U or X. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each
Lender a statement to the effect of the foregoing sentences in
conformity with the requirements of FR Form U-1 referred to in
Regulation U.




(b) No Consolidated Party is subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power Act or the
Investment Company Act of 1940, each as amended. In addition, no
Consolidated Party is an “investment company” registered or required to
be registered under the Investment Company Act of 1940, as amended, and
is not controlled by such a company.




(c) No director, executive officer or principal shareholder
of any Consolidated Party is a director, executive officer or principal
shareholder of any Lender. For the purposes hereof the terms “director”,
“executive officer” and “principal shareholder” (when used with
reference to any Lender) have the respective meanings assigned thereto
in Regulation O issued by the Board of Governors of the Federal Reserve
System.




(d) Each Consolidated Party has obtained and holds in full
force and effect, all franchises, licenses, permits, certificates,
authorizations, qualifications, accreditations, easements, rights of way
and other rights, consents and approvals which are necessary for the
ownership of its respective Property and to the conduct of its
respective businesses as presently conducted except where failure to do
so could not reasonably be expected to have a Material Adverse Effect.




(e) No Consolidated Party is in violation of any applicable
statute, regulation or ordinance of the United States of America, or of
any state, city, town, municipality, county or any other jurisdiction,
or of any agency thereof (including without limitation, environmental
laws and regulations), which violation could reasonably be expected to
have a Material Adverse Effect.




(f) Each Consolidated Party is current with all reports and
documents, if any, required to be filed with any state or federal
securities commission or similar securities agency and is in full
compliance in all respects with all applicable rules and regulations of
such commissions except where failure to do so would not reasonably be
expected to have a Material Adverse Effect.



 


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6.14 PURPOSE OF LOANS AND LETTERS OF CREDIT.



The proceeds of the Loans hereunder shall be used solely by the Borrower
(i) for working capital, (ii) for general corporate purposes (including, without
limitation, the repurchase by the Borrower of Capital Stock of the Borrower and
the payment of cash dividends), (iii) to make capital expenditures and (iv) to
refinance existing Indebtedness of the Borrower. The Letters of Credit shall be
used only for or in connection with appeal bonds, reimbursement obligations
arising in connection with surety and reclamation bonds, reinsurance, domestic
or international trade transactions and obligations not otherwise aforementioned
relating to transactions entered into by the applicable account party in the
ordinary course of business.



6.15 ENVIRONMENTAL MATTERS.



Except as would not reasonably be expected to have a Material Adverse
Effect:




(a) Each of the facilities and properties owned, leased or
operated by the Consolidated Parties (the “PROPERTIES”) and all
operations at the Properties are in compliance with all applicable
Environmental Laws, and there is no violation of any Environmental Law
with respect to the Properties or the businesses operated by the
Consolidated Parties (the “BUSINESSES”), and there are no conditions
relating to the Businesses or Properties that could give rise to
liability under any applicable Environmental Laws.




(b) None of the Properties contains, or has previously
contained, any Materials of Environmental Concern at, on or under the
Properties in amounts or concentrations that constitute or constituted a
violation of, or could give rise to liability under, Environmental Laws.




(c) No Consolidated Party has received any written or verbal
notice of, or inquiry from any Governmental Authority regarding, any
violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the
Businesses, nor does any Consolidated Party have knowledge or reason to
believe that any such notice will be received or is being threatened.




(d) Materials of Environmental Concern have not been
transported or disposed of from the Properties, or generated, treated,
stored or disposed of at, on or under any of the Properties or any other
location, in each case by or on behalf of any Consolidated Party in
violation of, or in a manner that could give rise to liability under,
any applicable Environmental Law.




(e) No judicial proceeding or governmental or administrative
action is pending or, to the best knowledge of any Credit Party,
threatened, under any Environmental Law to which any Consolidated Party
is or will be named as a party, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders, or
other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Consolidated Parties, the
Properties or the Businesses.




(f) There has been no release, or threat of release, of
Materials of Environmental Concern at or from the Properties, or arising
from or related to the operations (including, without limitation,
disposal) of any Consolidated Party in connection with the Properties or
otherwise in connection with the Businesses, in violation of or in
amounts or in a manner that could give rise to liability under
Environmental Laws.


 


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6.16 INTELLECTUAL PROPERTY.



Each Consolidated Party owns, or has the legal right to use, all
trademarks, tradenames, copyrights, technology, know-how and processes (the
“INTELLECTUAL PROPERTY”) necessary for each of them to conduct its business as
currently conducted except for those the failure to own or have such legal right
to use could not reasonably be expected to have a Material Adverse Effect. No
claim has been asserted and is pending by any Person challenging or questioning
the use of any such Intellectual Property or the validity or effectiveness of
any such Intellectual Property, nor does any Credit Party know of any such
claim, and to the Credit Parties’ knowledge the use of such Intellectual
Property by any Consolidated Party does not infringe on the rights of any
Person, except for such claims and infringements that, in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.



6.17 SOLVENCY.



Each Consolidated Party is and, after consummation of the transactions
contemplated by this Credit Agreement, will be Solvent.



6.18 INVESTMENTS.



All Investments of each Consolidated Party are Permitted Investments.



6.19 DISCLOSURE.



Neither this Credit Agreement nor any financial statements delivered to
the Lenders nor any other document, certificate or statement furnished to the
Lenders by or on behalf of any Consolidated Party in connection with the
transactions contemplated hereby contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
contained therein or herein not misleading.



6.20 NO BURDENSOME RESTRICTIONS.



No Consolidated Party is a party to any agreement or instrument or
subject to any other obligation or any charter or corporate restriction or any
provision of any applicable law, rule or regulation which, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect.



6.21 BROKERS’ FEES.



None of the Borrower or any of its Subsidiaries has any obligation to
any Person in respect of any finder’s, broker’s, investment banking or other
similar fee in connection with any of the transactions contemplated under the
Credit Documents.



6.22 LABOR MATTERS.



(a) Except as set forth on SCHEDULE 6.22, there are no collective
bargaining agreements or Multiemployer Plans covering the employees of a
Consolidated Party, and (b) none of the Consolidated Parties (i) has suffered
any strikes, walkouts, work stoppages or other material labor difficulty that
could reasonably be expected to have a Material Adverse Effect within the last
five years, or (ii) has knowledge of any potential or pending strike, walkout or
work stoppage that could reasonably be expected to have a Material Adverse
Effect.


 


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SECTION 7




AFFIRMATIVE COVENANTS




Each Credit Party hereby covenants and agrees that, so long as this
Credit Agreement is in effect or any amounts payable hereunder or under any
other Credit Document shall remain outstanding, and until all of the Commitments
hereunder shall have terminated:



7.1 FINANCIAL STATEMENTS.



The Credit Parties will furnish, or cause to be furnished, to the
Administrative Agent and each of the Lenders:




(a) ANNUAL FINANCIAL STATEMENTS. As soon as available, and
in any event within 90 days after the close of each fiscal year of the
Consolidated Parties, the consolidated and consolidating balance sheet
and income statement of the Consolidated Parties, as of the end of such
fiscal year, together with related consolidated and consolidating
statements of operations and retained earnings and of cash flows for
such fiscal year, setting forth in comparative form consolidated and
consolidating figures for the preceding fiscal year, all such financial
information described above to be in reasonable form and detail and
audited by independent certified public accountants of recognized
national standing reasonably acceptable to the Administrative Agent and
whose opinion shall be to the effect that such financial statements have
been prepared in accordance with GAAP (except for changes with which
such accountants concur) and shall not be limited as to the scope of the
audit or qualified in any manner.




(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available,
and in any event within 45 days after the close of each fiscal quarter
of the Consolidated Parties (other than the fourth fiscal quarter, in
which case 90 days after the end thereof) a consolidated and
consolidating balance sheet and income statement of the Consolidated
Parties, as of the end of such fiscal quarter, together with related
consolidated and consolidating statements of operations and retained
earnings and of cash flows for such fiscal quarter, in each case setting
forth in comparative form consolidated and consolidating figures for the
corresponding period of the preceding fiscal year, all such financial
information described above to be in reasonable form and detail and
reasonably acceptable to the Administrative Agent, and accompanied by a
certificate of the chief financial officer of the Borrower to the effect
that such quarterly financial statements fairly present in all material
respects the financial condition of the Consolidated Parties and have
been prepared in accordance with GAAP, subject to changes resulting from
audit and normal year-end audit adjustments.




(c) OFFICER’S CERTIFICATE. At the time of delivery of the
financial statements provided for in Sections 7.1(a) and 7.1(b) above, a
certificate of the chief financial officer of the Borrower substantially
in the form of EXHIBIT 7.1(C), (i) demonstrating compliance with the
financial covenants contained in Section 7.11 by calculation thereof as
of the end of each such fiscal period and (ii) stating that no Default
or Event of Default exists, or if any Default or Event of Default does
exist, specifying the nature and extent thereof and what action the
Credit Parties propose to take with respect thereto.




(d) ACCOUNTANT’S CERTIFICATE. Within the period for delivery
of the annual financial statements provided in Section 7.1(a), a
certificate of the accountants conducting the annual audit stating that
they have reviewed this Credit Agreement and stating further whether, in
the course of their audit, they have become aware of any Default or
Event of Default and, if any such Default or Event of Default exists,
specifying the nature and extent thereof.



 


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(e) AUDITOR’S REPORTS. Promptly upon receipt thereof, a copy
of any other report or “management letter” submitted by independent
accountants to any Consolidated Party in connection with any annual,
interim or special audit of the books of such Person.




(f) REPORTS. Promptly upon transmission or receipt thereof,
(i) copies of any filings and registrations with, and reports to or
from, the Securities and Exchange Commission, or any successor agency,
and copies of all financial statements, proxy statements, notices and
reports as any Consolidated Party shall send to its shareholders or to a
holder of any Indebtedness owed by any Consolidated Party in its
capacity as such a holder and (ii) upon the request of the
Administrative Agent, all reports and written information to and from
the United States Environmental Protection Agency, or any state or local
agency responsible for environmental matters, the United States
Occupational Health and Safety Administration, or any state or local
agency responsible for health and safety matters, or any successor
agencies or authorities concerning environmental, health or safety
matters.




(g) NOTICES. Upon obtaining knowledge thereof, the Credit
Parties will give written notice to the Administrative Agent immediately
of (i) the occurrence of an event or condition consisting of a Default
or Event of Default, specifying the nature and existence thereof and
what action the Credit Parties propose to take with respect thereto, and
(ii) the occurrence of any of the following with respect to any
Consolidated Party (A) the pendency or commencement of any litigation,
arbitral or governmental proceeding against such Person which if
adversely determined is likely to have a Material Adverse Effect, (B)
the institution of any proceedings against such Person with respect to,
or the receipt of notice by such Person of potential liability or
responsibility for violation, or alleged violation of any federal, state
or local law, rule or regulation, including but not limited to,
Environmental Laws, the violation of which could reasonably be expected
to have a Material Adverse Effect, or (C) any notice or determination
concerning the imposition of any withdrawal liability by a Multiemployer
Plan against such Person or any ERISA Affiliate, the determination that
a Multiemployer Plan is, or is expected to be, in reorganization within
the meaning of Title IV of ERISA or the termination of any Plan.




(h) ERISA. Upon obtaining knowledge thereof, the Credit
Parties will give written notice to the Administrative Agent promptly
(and in any event within five business days) of: (i) of any event or
condition, including, but not limited to, any Reportable Event, that
constitutes, or might reasonably lead to, an ERISA Event; (ii) with
respect to any Multiemployer Plan, the receipt of notice as prescribed
in ERISA or otherwise of any withdrawal liability assessed against the
Credit Parties or any ERISA Affiliates, or of a determination that any
Multiemployer Plan is in reorganization or insolvent (both within the
meaning of Title IV of ERISA); (iii) the failure to make full payment on
or before the due date (including extensions) thereof of all amounts
which any Consolidated Party or any ERISA Affiliate is required to
contribute to each Plan pursuant to its terms and as required to meet
the minimum funding standard set forth in ERISA and the Code with
respect thereto; or (iv) any change in the funding status of any Plan
that could have a Material Adverse Effect, together with a description
of any such event or condition or a copy of any such notice and a
statement by the chief financial officer of the Borrower briefly setting
forth the details regarding such event, condition, or notice, and the
action, if any, which has been or is being taken or is proposed to be
taken by the Credit Parties with respect thereto. Promptly upon request,
the Credit Parties shall furnish the Administrative Agent and the
Lenders with such additional information concerning any Plan as may be
reasonably requested, including, but not limited to, copies of each
annual report/return (Form 5500 series), as well as all schedules and
attachments thereto required to be filed with the Department of Labor
and/or the Internal Revenue Service pursuant to ERISA and the Code,
respectively, for each “plan year” (within the meaning of Section 3(39)
of ERISA).




 


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(i) OTHER INFORMATION. With reasonable promptness upon any
such request, such other information regarding the business, properties
or financial condition of any Consolidated Party as the Administrative
Agent or the Required Lenders may reasonably request.



The Borrower hereby acknowledges that (a) the Administrative Agent and/or the
Arranger will make available to the Lenders and the Issuing Lender materials
and/or information provided by or on behalf of the Borrower hereunder
(collectively, “BORROWER MATERIALS”) by posting the Borrower Materials on
IntraLinks or another similar electronic system (the “PLATFORM”) and (b) certain
of the Lenders (each, a “Public Lender”) may have personnel who do not wish to
receive material non-public information with respect to the Borrower or its
Affiliates, or the respective securities of any of the foregoing, and who may be
engaged in investment and other market-related activities with respect to such
Persons’ securities. The Borrower hereby agrees that (w) all Borrower Materials
that are to be made available to Public Lenders shall be clearly and
conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word
“PUBLIC” shall appear prominently on the first page thereof; (x) by marking
Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the
Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat
such Borrower Materials as not containing any material non-public information
with respect to the Borrower or its securities for purposes of United States
Federal and state securities laws (PROVIDED, HOWEVER, that to the extent such
Borrower Materials contain confidential information, they shall be treated as
set forth in Section 11.14); (y) all Borrower Materials marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated
“Public Investor;” and (z) the Administrative Agent and the Arranger shall be
entitled to treat any Borrower Materials that are not marked “PUBLIC” as being
suitable only for posting on a portion of the Platform not designated “Public
Investor.”




7.2 PRESERVATION OF EXISTENCE AND FRANCHISES.



Each Credit Party will, and will cause each of its Subsidiaries to, do
all things necessary to preserve and keep in full force and effect its
existence, rights, franchises and authority except where failure to do so could
not reasonably be expected to have a Material Adverse Effect.




7.3 BOOKS AND RECORDS.



Each Credit Party will, and will cause each of its Subsidiaries to, keep
complete and accurate books and records of its transactions in accordance with
good accounting practices on the basis of GAAP (including the establishment and
maintenance of appropriate reserves).




7.4 COMPLIANCE WITH LAW.



Each Credit Party will, and will cause each of its Subsidiaries to,
comply with all laws, rules, regulations and orders, and all applicable
restrictions imposed by all Governmental Authorities, applicable to it and its
Property if noncompliance with any such law, rule, regulation, order or
restriction could reasonably be expected to have a Material Adverse Effect.




7.5 PAYMENT OF TAXES AND OTHER INDEBTEDNESS.



Each Credit Party will, and will cause each of its Subsidiaries to, pay
and discharge (a) all taxes, assessments and governmental charges or levies
imposed upon it, or upon its income or profits, or upon any of its properties,
before they shall become delinquent, (b) all lawful claims (including claims for
labor, materials and supplies) which, if unpaid, might give rise to a Lien upon
any of its properties, and (c) except as prohibited hereunder, all of its other
Indebtedness as it shall become due; PROVIDED, HOWEVER, that no


 


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Consolidated Party shall be required to pay any such tax, assessment, charge,
levy, claim or Indebtedness which is being contested in good faith by
appropriate proceedings and as to which adequate reserves therefor have been
established in accordance with GAAP, unless the failure to make any such payment
(i) could reasonably be expected to give rise to an immediate right to foreclose
on a Lien securing such amounts or (ii) could reasonably be expected to have a
Material Adverse Effect.




7.6 INSURANCE.



Each Credit Party will, and will cause each of its Subsidiaries to, at
all times maintain in full force and effect insurance (including worker’s
compensation insurance, liability insurance, casualty insurance and business
interruption insurance) in such amounts, covering such risks and liabilities and
with such deductibles or self-insurance retentions as are in accordance with
normal industry practice.




7.7 MAINTENANCE OF PROPERTY.



Each Credit Party will, and will cause each of its Subsidiaries to,
maintain and preserve its properties and equipment material to the conduct of
its business in good repair, working order and condition, normal wear and tear
and casualty and condemnation excepted, and will make, or cause to be made, in
such properties and equipment from time to time all repairs, renewals,
replacements, extensions, additions, betterments and improvements thereto as may
be needed or proper, to the extent and in the manner customary for companies in
similar businesses except where failure to do so could not reasonably be
expected to have a Material Adverse Effect.




7.8 PERFORMANCE OF OBLIGATIONS.



Each Credit Party will, and will cause each of its Subsidiaries to,
perform in all material respects all of its obligations under the terms of all
material agreements, indentures, mortgages, security agreements or other debt
instruments to which it is a party or by which it is bound.




7.9 USE OF PROCEEDS.



The Borrower will use the proceeds of the Loans and will use the Letters
of Credit solely for the purposes set forth in Section 6.14.




7.10 AUDITS/INSPECTIONS.



Upon reasonable notice and during normal business hours, each Credit
Party will, and will cause each of its Subsidiaries to, permit representatives
appointed by the Administrative Agent, including, without limitation,
independent accountants, agents, attorneys, and appraisers to visit and inspect
its property, including its books and records, its accounts receivable and
inventory, its facilities and its other business assets, and to make photocopies
or photographs thereof and to write down and record any information such
representative obtains and shall permit the Administrative Agent or its
representatives to investigate and verify the accuracy of information provided
to the Lenders and to discuss all such matters with the officers, employees and
representatives of such Person.




7.11 FINANCIAL COVENANTS.




(a) FIXED CHARGE COVERAGE RATIO. The Fixed Charge Coverage
Ratio, as of the last day of each fiscal quarter of the Borrower, shall
be greater than or equal to 2.00 to 1.0.


 


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(b) LEVERAGE RATIO. The Leverage Ratio, as of the last day
of each fiscal quarter of the Borrower, shall be less than or equal to
4.00 to 1.0.




7.12 ADDITIONAL CREDIT PARTIES.



As soon as practicable and in any event within 30 days after any Person
becomes a Subsidiary of any Credit Party, the Borrower shall provide the
Administrative Agent with written notice thereof setting forth information in
reasonable detail describing all of the assets of such Person and shall if such
Person is a Domestic Subsidiary of a Credit Party, cause such Person to execute
a Joinder Agreement in substantially the same form as EXHIBIT 7.12 and cause
such Person to deliver such other documentation as the Administrative Agent may
reasonably request in connection with the foregoing, including, without
limitation, certified resolutions and other organizational and authorizing
documents of such Person, and favorable opinions of counsel to such Person all
in form, content and scope reasonably satisfactory to the Administrative Agent.




7.13 ENVIRONMENTAL LAWS.




(a) The Consolidated Parties shall comply in all material
respects with, and take reasonable actions to ensure compliance in all
material respects by all tenants and subtenants, if any, with, all
applicable Environmental Laws and obtain and comply in all material
respects with and maintain, and take reasonable actions to ensure that
all tenants and subtenants obtain and comply in all material respects
with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws
except to the extent that failure to do so would not reasonably be
expected to have a Material Adverse Effect;




(b) The Consolidated Parties shall conduct and complete all
investigations, studies, sampling and testing, and all remedial, removal
and other actions required under Environmental Laws and promptly comply
in all material respects with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws except to the
extent that the same are being contested in good faith by appropriate
proceedings and the failure to do or the pendency of such proceedings
would not reasonably be expected to have a Material Adverse Effect; and




(c) The Consolidated Parties shall defend, indemnify and
hold harmless the Administrative Agent and the Lenders, and their
respective employees, agents, officers and directors, from and against
any and all claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature known or unknown,
contingent or otherwise, arising out of, or in any way relating to the
violation of, noncompliance with or liability under, any Environmental
Law applicable to the operations of the Borrower or any of its
Subsidiaries or the Properties, or any orders, requirements or demands
of Governmental Authorities related thereto, including, without
limitation, reasonable attorney’s and consultant’s fees, investigation
and laboratory fees, response costs, court costs and litigation
expenses, except to the extent that any of the foregoing arise out of
the gross negligence or willful misconduct of the party seeking
indemnification therefor. The agreements in this paragraph shall survive
repayment of the Loans and all other amounts payable hereunder, and
termination of the Commitments.


 


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SECTION 8




NEGATIVE COVENANTS




Each Credit Party hereby covenants and agrees that, so long as this
Credit Agreement is in effect or any amounts payable hereunder or under any
other Credit Document shall remain outstanding, and until all of the Commitments
hereunder shall have terminated:




8.1 INDEBTEDNESS.



The Credit Parties will not permit any of their Subsidiaries to
contract, create, incur, assume or permit to exist any Indebtedness, except:




(a) Indebtedness arising under this Credit Agreement and the
other Credit Documents;




(b) purchase money Indebtedness (including obligations in
respect of Capital Leases) hereafter incurred to finance the purchase of
fixed assets PROVIDED that (i) the total of all such Indebtedness,
together with all such Indebtedness of the Borrower secured by Liens
permitted by clause (vi) of the definition of “Permitted Liens”, shall
not exceed an aggregate principal amount of $20,000,000 at any one time
outstanding; (ii) such Indebtedness when incurred shall not exceed the
purchase price of the asset(s) financed; and (iii) no such Indebtedness
shall be refinanced for a principal amount in excess of the principal
balance outstanding thereon at the time of such refinancing;




(c) Indebtedness set forth in SCHEDULE 8.1 and any renewals,
refinancings or extensions thereof (without increasing the amount
thereof);




(d) obligations in respect of Hedging Agreements entered
into in order to manage existing or anticipated interest rate or
exchange rate risks and not for speculative purposes;




(e) intercompany Indebtedness arising out of loans, advances
and Guaranty Obligations permitted under Section 8.6;




(f) other Indebtedness, PROVIDED that the aggregate
outstanding principal amount of such Indebtedness shall not exceed the
difference between (i) 10% of Consolidated Tangible Assets MINUS (ii)
the aggregate outstanding principal amount of Indebtedness of the
Borrower secured by Liens permitted by clause (xiii) of the definition
of Permitted Liens; and




(g) Indebtedness in respect of Sale and Leaseback
Transactions permitted by Section 8.13.




8.2 LIENS.



The Credit Parties will not permit any Consolidated Party to contract,
create, incur, assume or permit to exist any Lien with respect to any of its
Property, whether now owned or after acquired, except for Permitted Liens.




8.3 NATURE OF BUSINESS.



The Credit Parties will not permit the Consolidated Parties taken as a
whole to substantively alter the character or conduct of the business conducted
by such Person as of the Closing Date.


 


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8.4 CONSOLIDATION, MERGER, DISSOLUTION, ETC.



The Credit Parties will not permit any Consolidated Party to enter into
any transaction of merger or consolidation or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution); PROVIDED that,
notwithstanding the foregoing provisions of this Section 8.4, (a) the Borrower
may merge or consolidate with any of its Subsidiaries PROVIDED that (i) the
Borrower shall be the continuing or surviving corporation and (ii) after giving
effect to such transaction, no Default or Event of Default exists, (b) any
Credit Party other than the Borrower may merge or consolidate with any other
Credit Party other than the Borrower PROVIDED that after giving effect to such
transaction, no Default or Event of Default exists, (c) any Consolidated Party
which is not a Credit Party may be merged or consolidated with or into any
Credit Party PROVIDED that (i) such Credit Party shall be the continuing or
surviving corporation and (ii) after giving effect to such transaction, no
Default or Event of Default exists, and (d) any Consolidated Party which is not
a Credit Party may be merged or consolidated with or into any other Consolidated
Party which is not a Credit Party PROVIDED that, after giving effect to such
transaction, no Default or Event of Default exists.




8.5 ASSET DISPOSITIONS.



The Credit Parties will not permit any Consolidated Party to sell,
lease, transfer or otherwise dispose of any Property other than (a) the sale of
inventory in the ordinary course of business for fair consideration, (b) the
sale or disposition of machinery and equipment no longer used or useful in the
conduct of such Person’s business, (c) the sale, lease, transfer or other
disposition of Property to any Credit Party in the ordinary course of business
and (d) other sales of assets of the Consolidated Parties (including pursuant to
Sale and Leaseback Transactions) having a net book value not to exceed
$100,000,000 in the aggregate during the term of this Credit Agreement.




8.6 INVESTMENTS.



The Credit Parties will not permit any Consolidated Party to make
Investments in or to any Person, except for Permitted Investments.




8.7 RESTRICTED PAYMENTS.



The Credit Parties will not permit any Consolidated Party to, directly
or indirectly, declare, order, make or set apart any sum for or pay any
Restricted Payment, except (a) to make dividends payable solely in the same
class of Capital Stock of such Person, (b) to make dividends or other
distributions payable to the Borrower (directly or indirectly through
Subsidiaries) and (c) repurchases of the Borrower’s Capital Stock, so long as
(i) the Leverage Ratio is less than 3.5 to 1.0 as of the fiscal quarter end
immediately preceding any such repurchase and (ii) no Default or Event of
Default shall exist immediately prior to or after giving effect to such
repurchase.




8.8 PREPAYMENTS OF INDEBTEDNESS, ETC.



If any Default or Event of Default exists, the Credit Parties will not
permit any Consolidated Party to (a) after the issuance thereof, amend or modify
(or permit the amendment or modification of) any of the terms of any
Indebtedness if such amendment or modification would add or change any terms in
a manner adverse to the issuer of such Indebtedness, or shorten the final
maturity or average life to maturity or require any payment to be made sooner
than originally scheduled or increase the interest rate applicable thereto or
change any subordination provision thereof, or (b) make (or give any notice with
respect thereto) any voluntary or optional payment or prepayment or redemption
or acquisition for value of (including without limitation, by


 


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way of depositing money or securities with the trustee with respect thereto
before due for the purpose of paying when due), refund, refinance or exchange of
any other Indebtedness.




8.9 TRANSACTIONS WITH AFFILIATES.



Except as set forth on SCHEDULE 8.9, the Credit Parties will not permit
any Consolidated Party to enter into or permit to exist any transaction or
series of transactions with any officer, director, shareholder, Subsidiary or
Affiliate of such Person other than (a) normal compensation and reimbursement of
expenses of officers and directors and (b) except as otherwise specifically
limited in this Credit Agreement, other transactions which are entered into in
the ordinary course of such Person’s business on terms and conditions
substantially as favorable to such Person as would be obtainable by it in a
comparable arms-length transaction with a Person other than an officer,
director, shareholder, Subsidiary or Affiliate.




8.10 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS.



The Credit Parties will not permit any Consolidated Party to (a) change
its fiscal year or (b) amend, modify or change its articles of incorporation (or
corporate charter or other similar organizational document) or bylaws (or other
similar document) in a manner that would adversely affect the rights of the
Lenders.




8.11 LIMITATION ON RESTRICTED ACTIONS.



The Credit Parties will not permit any Consolidated Party to, directly
or indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any such Person to (a) pay
dividends or make any other distributions to any Credit Party on its Capital
Stock or with respect to any other interest or participation in, or measured by,
its profits, (b) pay any Indebtedness or other obligation owed to any Credit
Party, (c) make loans or advances to any Credit Party, (d) sell, lease or
transfer any of its properties or assets to any Credit Party, or (e) act as a
Guarantor and pledge its assets pursuant to the Credit Documents or any
renewals, refinancings, exchanges, refundings or extension thereof, except (in
respect of any of the matters referred to in clauses (a)-(d) above) for such
encumbrances or restrictions existing under or by reason of (i) this Credit
Agreement and the other Credit Documents, (ii) applicable law or (iii) any
document or instrument governing purchase money Indebtedness (including Capital
Leases) permitted by this Credit Agreement, PROVIDED that any such restriction
contained therein relates only to the asset or assets constructed or acquired in
connection therewith.




8.12 OWNERSHIP OF SUBSIDIARIES.



Notwithstanding any other provisions of this Credit Agreement to the
contrary, the Credit Parties will not permit any Consolidated Party to (i)
permit any Person (other than the Borrower or any Wholly-Owned Subsidiary of the
Borrower) to own any Capital Stock of any Subsidiary of the Borrower, (ii)
permit any Subsidiary of the Borrower to issue Capital Stock (except to the
Borrower or to a Wholly-Owned Subsidiary of the Borrower), (iii) permit, create,
incur, assume or suffer to exist any Lien thereon, in each case except (A) to
qualify directors where required by applicable law or to satisfy other
requirements of applicable law with respect to the ownership of Capital Stock of
Foreign Subsidiaries or (B) for Permitted Liens and (iv) notwithstanding
anything to the contrary contained in clause (ii) above, permit any Subsidiary
of the Borrower to issue any shares of preferred Capital Stock.




8.13 SALE LEASEBACKS.



The Credit Parties will not permit any Consolidated Party to enter into
any Sale and Leaseback Transactions except as permitted by Section 8.5(d).


 


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8.14 NO FURTHER NEGATIVE PLEDGES.



The Credit Parties will not permit any Consolidated Party to enter into,
assume or become subject to any agreement prohibiting or otherwise restricting
the creation or assumption of any Lien upon its properties or assets, whether
now owned or hereafter acquired, or requiring the grant of any security for such
obligation if security is given for some other obligation, except (a) pursuant
to this Credit Agreement and the other Credit Documents or (b) pursuant to any
document or instrument governing purchase money Indebtedness (including Capital
Leases) permitted by this Credit Agreement, PROVIDED that any such restriction
contained therein relates only to the asset or assets constructed or acquired in
connection therewith.



SECTION 9




EVENTS OF DEFAULT





9.1 EVENTS OF DEFAULT.



An Event of Default shall exist upon the occurrence of any of the
following specified events (each an “EVENT OF DEFAULT”):




(a) PAYMENT. Any Credit Party shall




(i) default in the payment when due of any principal
of any of the Loans or of any reimbursement obligations arising
from drawings under Letters of Credit, or




(ii) default, and such default shall continue for
three (3) or more Business Days, in the payment when due of any
interest on the Loans or on any reimbursement obligations
arising from drawings under Letters of Credit, or of any Fees or
other amounts owing hereunder, under any of the other Credit
Documents or in connection herewith or therewith; or




(b) REPRESENTATIONS. Any representation, warranty or
statement made or deemed to be made by any Credit Party herein, in any
of the other Credit Documents, or in any statement or certificate
delivered or required to be delivered pursuant hereto or thereto shall
prove untrue in any material respect on the date as of which it was
deemed to have been made; or




(c) COVENANTS. Any Credit Party shall




(i) default in the due performance or observance of
any term, covenant or agreement contained in Sections 7.2, 7.4,
7.9, 7.11, 7.12 or Section 8;




(ii) default in the due performance or observance of
any term, covenant or agreement contained in Sections 7.1(a),
(b), (c) or (d) and such default shall continue unremedied for a
period of at least 5 days after the earlier of a responsible
officer of a Credit Party becoming aware of such default or
notice thereof by the Administrative Agent; or




(iii) default in the due performance or observance by
it of any term, covenant or agreement (other than those referred
to in subsections (a), (b), (c)(i) or (c)(ii) of this Section
9.1) contained in this Credit Agreement and such default shall
continue unremedied for a period of at least 30 days after the
earlier of a responsible officer of a Credit Party becoming
aware of such default or notice thereof by the Administrative
Agent; or


 


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(d) OTHER CREDIT DOCUMENTS. (i) Any Credit Party shall
default in the due performance or observance of any term, covenant or
agreement in any of the other Credit Documents (subject to applicable
grace or cure periods, if any), or (ii) except as a result of or in
connection with a merger of a Subsidiary permitted under Section 8.4,
any Credit Document shall fail to be in full force and effect or to give
the Administrative Agent and/or the Lenders the rights, powers and
privileges purported to be created thereby, or any Credit Party shall so
state in writing; or




(e) GUARANTIES. Except as the result of or in connection
with a merger of a Subsidiary permitted under Section 8.4, the guaranty
given by any Guarantor hereunder (including any Additional Credit Party)
or any provision thereof shall cease to be in full force and effect, or
any Guarantor (including any Additional Credit Party) hereunder or any
Person acting by or on behalf of such Guarantor shall deny or disaffirm
such Guarantor’s obligations under such guaranty, or any Guarantor shall
default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to any
guaranty; or




(f) BANKRUPTCY, ETC. Any Bankruptcy Event shall occur with
respect to any Consolidated Party; or




(g) DEFAULTS UNDER OTHER AGREEMENTS.




(i) Any Consolidated Party shall default in the
performance or observance (beyond the applicable grace period
with respect thereto, if any) of any material obligation or
condition of any contract or lease material to the Consolidated
Parties, taken as a whole; or




(ii) With respect to any Indebtedness (other than
Indebtedness outstanding under this Credit Agreement) in excess
of $5,000,000 in the aggregate for the Consolidated Parties
taken as a whole, (A) any Consolidated Party shall (1) default
in any payment (beyond the applicable grace period with respect
thereto, if any) with respect to any such Indebtedness, or (2)
the occurrence and continuance of a default in the observance or
performance relating to such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating
thereto, or any other event or condition shall occur or
condition exist, the effect of which default or other event or
condition is to cause, or permit, the holder or holders of such
Indebtedness (or trustee or agent on behalf of such holders) to
cause (determined without regard to whether any notice or lapse
of time is required), any such Indebtedness to become due prior
to its stated maturity; or (B) any such Indebtedness shall be
declared due and payable, or required to be prepaid other than
by a regularly scheduled required prepayment, prior to the
stated maturity thereof; or




(h) JUDGMENTS. One or more judgments or decrees shall be
entered against one or more of the Consolidated Parties involving a
liability of $5,000,000 or more in the aggregate (to the extent not paid
or fully covered by insurance provided by a carrier who has acknowledged
coverage and has the ability to perform) and any such judgments or
decrees shall not have been vacated, discharged or stayed or bonded
pending appeal within 30 days from the entry thereof; or




(i) ERISA. Any of the following events or conditions, if
such event or condition could have a Material Adverse Effect: (i) any
“accumulated funding deficiency,” as such term is defined in Section 302
of ERISA and Section 412 of the Code, whether or not waived, shall exist
with respect to any Plan, or any lien shall arise on the assets of any
Consolidated Party or any ERISA Affiliate in favor of the PBGC or a
Plan; (ii) an ERISA Event shall occur with respect to a Single Employer
Plan, which is, in the reasonable opinion of the Administrative Agent,
likely to result in the


 


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termination of such Plan for purposes of Title IV of ERISA; (iii) an
ERISA Event shall occur with respect to a Multiemployer Plan or Multiple
Employer Plan, which is, in the reasonable opinion of the Administrative
Agent, likely to result in (A) the termination of such Plan for purposes
of Title IV of ERISA, or (B) any Consolidated Party or any ERISA
Affiliate incurring any liability in connection with a withdrawal from,
reorganization of (within the meaning of Section 4241 of ERISA), or
insolvency or (within the meaning of Section 4245 of ERISA) such Plan;
or (iv) any prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility
shall occur which may subject any Consolidated Party or any ERISA
Affiliate to any liability under Sections 406, 409, 502(i), or 502(l) of
ERISA or Section 4975 of the Code, or under any agreement or other
instrument pursuant to which any Consolidated Party or any ERISA
Affiliate has agreed or is required to indemnify any person against any
such liability; or




(j) INVALIDITY OF CREDIT DOCUMENTS. Any provision of any
Credit Document, at any time after its execution and delivery and for
any reason other than as expressly permitted hereunder or thereunder or
satisfaction in full of all the Obligations, ceases to be in full force
and effect; or any Credit Party or any other Person contests in any
manner the validity or enforceability of any provision of any Credit
Document; or any Credit Party denies that it has any or further
liability or obligation under any Credit Document, or purports to
revoke, terminate, or rescind any provision of any Credit Document; or




(k) OWNERSHIP. There shall occur a Change of Control.




9.2 ACCELERATION; REMEDIES.



Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived by the requisite Lenders
(pursuant to the voting requirements of Section 11.6) or cured to the
satisfaction of the requisite Lenders (pursuant to the voting procedures in
Section 11.6), the Administrative Agent shall, upon the request and direction of
the Required Lenders, by written notice to the Credit Parties, take any of the
following actions:




(a) TERMINATION OF COMMITMENTS. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.




(b) ACCELERATION. Declare the unpaid principal of and any
accrued interest in respect of all Loans, any reimbursement obligations
arising from drawings under Letters of Credit and any and all other
indebtedness or obligations of any and every kind owing by the Credit
Parties to the Administrative Agent and/or any of the Lenders hereunder
to be due whereupon the same shall be immediately due and payable
without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Credit Parties.




(c) CASH COLLATERAL. Direct the Credit Parties to pay (and
the Credit Parties agree that upon receipt of such notice, or upon the
occurrence of an Event of Default under Section 9.1(f), they will
immediately pay) to the Administrative Agent additional cash, to be held
by the Administrative Agent, for the benefit of the Lenders, in a cash
collateral account as additional security for the LOC Obligations in
respect of subsequent drawings under all then outstanding Letters of
Credit in an amount equal to the maximum aggregate amount which may be
drawn under all Letters of Credits then outstanding.


 


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(d) ENFORCEMENT OF RIGHTS. Enforce any and all rights and
interests created and existing under the Credit Documents including,
without limitation, all rights and remedies against a Guarantor and all
rights of set-off.



Notwithstanding the foregoing, if an Event of Default specified in
Section 9.1(f) shall occur with respect to the Borrower, then the Commitments
shall automatically terminate and all Loans, all reimbursement obligations
arising from drawings under Letters of Credit, all accrued interest in respect
thereof, all accrued and unpaid Fees and other indebtedness or obligations owing
to the Administrative Agent and/or any of the Lenders hereunder automatically
shall immediately become due and payable without the giving of any notice or
other action by the Administrative Agent or the Lenders.



SECTION 10




AGENCY PROVISIONS





10.1 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.



(a) Each Lender hereby irrevocably appoints Bank of America to act
on its behalf as the Administrative Agent hereunder and under the other Credit
Documents and authorizes the Administrative Agent to take such action on its
behalf under the provisions of this Credit Agreement and each other Credit
Document and to exercise such powers and perform such duties as are delegated to
it by the terms hereof or thereof, together with such actions and powers as are
reasonably incidental thereto. The provisions of this Section 10 are solely for
the benefit of the Administrative Agent, the Issuing Lender and the Lenders, and
neither the Borrower nor any other Credit Party shall have rights as a third
party beneficiary of any of such provisions.




10.2 RIGHTS AS A LENDER.



The Person serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term
“Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the
context otherwise requires, include the Person serving as the Administrative
Agent hereunder in its individual capacity. Such Person and its Affiliates may
accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if such Person were
not the Administrative Agent hereunder and without any duty to account therefor
to the Lenders.




10.3 DELEGATION OF DUTIES.



The Administrative Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under any other Credit Document by
or through any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers by or through their respective Related
Parties. The exculpatory provisions of this Article shall apply to any such
sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.


 


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10.4 EXCULPATORY PROVISIONS.



The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein and in the other Credit Documents. Without
limiting the generality of the foregoing, the Administrative Agent:



(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default or Event of Default has occurred and is
continuing;



(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Credit Documents that the
Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be
expressly provided for herein or in the other Credit Documents), provided that
the Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Credit Document or applicable law; and



(c) shall not, except as expressly set forth herein and in the other
Credit Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its
Affiliates that is communicated to or obtained by the Person serving as the
Administrative Agent or any of its Affiliates in any capacity.



The Administrative Agent shall not be liable for any action taken or not
taken by it (i) with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 11.6 and 9.2) or (ii) in the absence of
its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default or Event of Default unless and
until notice describing such Default or Event of Default is given to the
Administrative Agent by the Borrower, a Lender or the Issuing Lender.



The Administrative Agent shall not be responsible for or have any duty
to ascertain or inquire into (i) any statement, warranty or representation made
in or in connection with this Credit Agreement or any other Credit Document,
(ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein or therein or the occurrence of any Default or Event
of Default, (iv) the validity, enforceability, effectiveness or genuineness of
this Credit Agreement, any other Credit Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Section 5 or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.




10.5 RELIANCE BY ADMINISTRATIVE AGENT.



The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by
it to be genuine and to have been signed, sent or otherwise authenticated by the
proper Person. The Administrative Agent also may rely upon any statement made to
it orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance
of a Letter of Credit, that by its terms must be fulfilled to the satisfaction
of a Lender or the Issuing Lender, the


 


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Administrative Agent may presume that such condition is satisfactory to such
Lender or the Issuing Lender unless the Administrative Agent shall have received
notice to the contrary from such Lender or the Issuing Lender prior to the
making of such Loan, or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.




10.6 RESIGNATION OF ADMINISTRATIVE AGENT.



The Administrative Agent may at any time give notice of its resignation
to the Lenders, the Issuing Lender and the Borrower. Upon receipt of any such
notice of resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor, which shall be a bank
with an office in the United States, or an Affiliate of any such bank with an
office in the United States. If no such successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may on behalf of the Lenders, appoint a
successor Administrative Agent meeting the qualifications set forth above;
PROVIDED that if the Administrative Agent shall notify the Borrower and the
Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice
and (a) the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Credit Documents and (b) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender
directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance
of a successor’s appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations
hereunder or under the other Credit Documents (if not already discharged
therefrom as provided above in this Section). The fees payable by the Borrower
to a successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.
After the retiring Administrative Agent’s resignation hereunder and under the
other Credit Documents, the provisions of this Section and Section 11.5 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.



Any resignation by Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation as Issuing Lender and
Swingline Lender. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, (i) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring
Issuing Lender and Swingline Lender, (ii) the retiring Issuing Lender and
Swingline Lender shall be discharged from all of their respective duties and
obligations hereunder or under the other Credit Documents, and (iii) the
successor Issuing Lender shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make
other arrangements satisfactory to the retiring Issuing Lender to effectively
assume the obligations of the retiring Issuing Lender with respect to such
Letters of Credit.




10.7 NON-RELIANCE BY ADMINISTRATIVE AGENT AND OTHER LENDERS.



Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related
Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Credit
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon


 


65









 





the Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Credit Agreement, any other Credit Document or any
related agreement or any document furnished hereunder or thereunder.




10.8 NO OTHER DUTIES, ETC.



Anything herein to the contrary notwithstanding, none of the
bookrunners, arrangers, syndication agents, documentation agents or co-agents
shall have any powers, duties or responsibilities under this Credit Agreement or
any of the other Credit Documents, except in its capacity, as applicable, as the
Administrative Agent, a Lender or the Issuing Lender hereunder.




10.9 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM.



In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or any other
judicial proceeding relative to any Credit Party, the Administrative Agent
(irrespective of whether the principal of any Loan or LOC Obligation shall then
be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on
the Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise:



(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans, LOC Obligations and all
other Credit Party Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of the
Lenders and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders and the
Administrative Agent and their respective agents and counsel and all other
amounts due the Lenders and the Administrative Agent under Sections 3.5 and 11.5
allowed in such judicial proceeding; and



(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such
payments to the Administrative Agent and in the event that the Administrative
Agent shall consent to the making of such payments directly to the Lenders, to
pay to the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its agents
and counsel, and any other amounts due the Administrative Agent under Sections
3.5 and 11.5.



Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Credit Party Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.



10.10 GUARANTY MATTERS.



The Lenders irrevocably authorize the Administrative Agent, at its
option and in its discretion, to release any Guarantor from its obligations
hereunder if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder. Upon request by the Administrative Agent at any time, the
Required Lenders will confirm in writing the Administrative Agent’s authority to
release any Guarantor from its obligations hereunder pursuant to this Section
10.10.


 


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SECTION 11




MISCELLANEOUS





11.1 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATIONS.




(a) NOTICES GENERALLY. Except in the case of notices and
other communications expressly permitted to be given by telephone (and
except as provided in subsection (b) below), all notices and other
communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier as follows, and all notices and
other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:




(i) if to the Borrower, the Administrative Agent,
the Issuing Lender or the Swingline Lender, to the address,
telecopier number, electronic mail address or telephone number
specified for such Person on SCHEDULE 11.1; and




(ii) if to any other Lender, to the address,
telecopier number, electronic mail address or telephone number
specified in its Administrative Questionnaire.




Notices sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when
received; notices sent by telecopier shall be deemed to have been given
when sent (except that, if not given during normal business hours for
the recipient, shall be deemed to have been given at the opening of
business on the next business day for the recipient). Notices delivered
through electronic communications to the extent provided in subsection
(b) below, shall be effective as provided in such subsection (b).




(b) ELECTRONIC COMMUNICATIONS. Notices and other
communications to the Lenders and the Issuing Lender hereunder may be
delivered or furnished by electronic communication (including e mail and
Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent, PROVIDED that the foregoing shall not apply to
notices to any Lender or the Issuing Lender pursuant to Section 2,
Section 3.3 and Section 3.13 if such Lender or Issuing Lender has
notified the Administrative Agent that it is incapable of receiving
notices under such Sections by electronic communication. The
Administrative Agent or the Borrower (on behalf of itself and the other
Credit Parties) may, in its discretion, agree to accept notices and
other communications to it hereunder by electronic communications
pursuant to procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications.




Unless the Administrative Agent otherwise prescribes, (i)
notices and other communications sent to an e-mail address shall be
deemed received upon the sender’s receipt of an acknowledgement from the
intended recipient (such as by the “return receipt requested” function,
as available, return e-mail or other written acknowledgement), PROVIDED
that if such notice or other communication is not sent during the normal
business hours of the recipient, such notice or communication shall be
deemed to have been sent at the opening of business on the next business
day for the recipient, and (ii) notices or communications posted to an
Internet or intranet website shall be deemed received upon the deemed
receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or
communication is available and identifying the website address therefor.


 


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(c) EFFECTIVENESS OF FACSIMILE DOCUMENTS AND SIGNATURES.
Credit Documents may be transmitted and/or signed by facsimile. The
effectiveness of any such documents and signatures shall, subject to
applicable law, have the same force and effect as manually-signed
originals and shall be binding on all Credit Parties, the Administrative
Agent and the Lenders. The Administrative Agent may also require that
any such documents and signatures be confirmed by a manually-signed
original thereof; PROVIDED, HOWEVER, that the failure to request or
deliver the same shall not limit the effectiveness of any facsimile
document or signature.




(d) RELIANCE BY ADMINISTRATIVE AGENT, ISSUING LENDER AND
LENDERS. The Administrative Agent, the Issuing Lender and the Lenders
shall be entitled to rely and act upon any notices (including telephonic
Notices of Borrowing and Swingline Loan Requests) purportedly given by
or on behalf of the Borrower even if (i) such notices were not made in a
manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrower shall indemnify the Administrative Agent, the
Issuing Lender, each Lender and the Related Parties of each of them from
all losses, costs, expenses and liabilities resulting from the reliance
by such Person on each notice purportedly given by or on behalf of the
Borrower. All telephonic notices to and other telephonic communications
with the Administrative Agent may be recorded by the Administrative
Agent, and each of the parties hereto hereby consents to such recording.




(e) THE PLATFORM. THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE
ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF
THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR
OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY
IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event
shall the Administrative Agent or any of its Related Parties
(collectively, the “AGENT PARTIES”) have any liability to the Borrower,
any Lender, the Issuing Lender or any other Person for losses, claims,
damages, liabilities or expenses of any kind (whether in tort, contract
or otherwise) arising out of the Borrower’s or the Administrative
Agent’s transmission of Borrower Materials through the Internet, except
to the extent that such losses, claims, damages, liabilities or expenses
are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Agent Party; PROVIDED, HOWEVER, that in no
event shall any Agent Party have any liability to the Borrower, any
Lender, the Issuing Lender or any other Person for indirect, special,
incidental, consequential or punitive damages (as opposed to direct or
actual damages).




(f) CHANGE OF ADDRESS, ETC. Each of the Borrower, the
Administrative Agent, the Issuing Lender and the Swingline Lender may
change its address, telecopier or telephone number for notices and other
communications hereunder by notice to the other parties hereto. Each
other Lender may change its address, telecopier or telephone number for
notices and other communications hereunder by notice to the Borrower,
the Administrative Agent, the Issuing Lender and the Swingline Lender.
In addition, each Lender agrees to notify the Administrative Agent from
time to time to ensure that the Administrative Agent has on record (i)
an effective address, contact name, telephone number, telecopier number
and electronic mail address to which notices and other communications
may be sent and (ii) accurate wire instructions for such Lender.


 


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Furthermore, each Public Lender agrees to cause at least one individual
at or on behalf of such Public Lender to at all times have selected the
“Private Side Information” or similar designation on the content
declaration screen of the Platform in order to enable such Public Lender
or its delegate, in accordance with such Public Lender’s compliance
procedures and applicable law, including United States Federal and state
securities Laws, to make reference to Borrower Materials that are not
made available through the “Public Side Information” portion of the
Platform and that may contain material non-public information with
respect to the Borrower or its securities for purposes of United States
Federal or state securities laws.




11.2 RIGHT OF SET-OFF.



Upon the occurrence and during the continuance of any Event of Default,
each Lender (and each of its Affiliates) is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender (or any
of its Affiliates) to or for the credit or the account of any Credit Party
against any and all of the obligations of such Person now or hereafter existing
under this Credit Agreement, under the Notes, under any other Credit Document or
otherwise, irrespective of whether such Lender shall have made any demand under
hereunder or thereunder and although such obligations may be unmatured. Each
Lender agrees promptly to notify any affected Credit Party after any such
set-off and application made by such Lender; PROVIDED, HOWEVER, that the failure
to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section 11.2 are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Lender may have.




11.3 SUCCESSORS AND ASSIGNS.




(a) SUCCESSORS AND ASSIGNS GENERALLY. The provisions of this
Credit Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted
hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written
consent of the Administrative Agent and each Lender, and no Lender may
assign or otherwise transfer any of its rights or obligations hereunder
except (i) to an Eligible Assignee in accordance with the provisions of
Section 11.3(b), (ii) by way of participation in accordance with the
provisions of Section 11.3(d), or (iii) by way of pledge or assignment
of a security interest subject to the restrictions of Section 11.3(f)
(and any other attempted assignment or transfer by any party hereto
shall be null and void). Nothing in this Credit Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted
hereby, Participants to the extent provided in subsection (d) of this
Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Issuing Lender and the
Lenders) any legal or equitable right, remedy or claim under or by
reason of this Credit Agreement.




(b) ASSIGNMENTS BY LENDERS. Any Lender may at any time
assign to one or more Eligible Assignees all or a portion of its rights
and obligations under this Credit Agreement (including all or a portion
of its Commitment(s) and the Loans (including for purposes of this
subsection (b), participations in LOC Obligations and in Swingline
Loans) at the time owing to it); PROVIDED that any such assignment shall
be subject to the following conditions:




(i) MINIMUM AMOUNTS.


 


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(A) in the case of an assignment of the
entire remaining amount of the assigning Lender’s
Commitment and the related Loans at the time owing to it
or in the case of an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund, no minimum
amount need be assigned; and




(B) in any case not described in subsection
(b)(i)(A) of this Section, the aggregate amount of the
Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not
then in effect, the principal outstanding balance of the
Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered
to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the
Trade Date, shall not be less than $5,000,000, unless
each of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the
Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed); provided, however,
that concurrent assignments to members of an Assignee
Group and concurrent assignments from members of an
Assignee Group to a single Eligible Assignee (or to an
Eligible Assignee and members of its Assignee Group)
will be treated as a single assignment for purposes of
determining whether such minimum amount has been met;




(C) the consent of the Issuing Lender (such
consent not to be unreasonably withheld or delayed)
shall be required for any assignment that increases the
obligation of the Eligible Assignee to participate in
exposure under one or more Letters of Credit (whether or
not then outstanding); and




(D) the consent of the Swingline Lender
(such consent not to be unreasonably withheld or
delayed) shall be required for any assignment in respect
of the Revolving Commitments.




(ii) PROPORTIONATE AMOUNTS. Each partial assignment
shall be made as an assignment of a proportionate part of all
the assigning Lender’s rights and obligations under this Credit
Agreement with respect to the Loans or the Commitment assigned,
except that this clause (ii) shall not apply to rights in
respect of Swingline Loans;




(iii) REQUIRED CONSENTS. No consent shall be required
for any assignment except to the extent required by subsection
(b)(i)(B) of this Section and, in addition:




(A) the consent of the Borrower (such
consent not to be unreasonably withheld or delayed)
shall be required unless (1) an Event of Default has
occurred and is continuing at the time of such
assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund; and




(B) the consent of the Administrative Agent
(such consent not to be unreasonably withheld or
delayed) shall be required for assignments in respect of
any Commitment if such assignment is to a Person that is
not a Lender with a Commitment, an Affiliate of such
Lender or an Approved Fund with respect to such Lender.




(iv) ASSIGNMENT AND ASSUMPTION. The parties to each
assignment shall execute and deliver to the Administrative Agent
an Assignment and Assumption, together


 


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with a processing and recordation fee of $3,500; PROVIDED,
HOWEVER, that the Administrative Agent may, in its sole
discretion, elect to waive such processing and recordation fee
in the case of any assignment. The assignee, if it shall not be
a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.




(v) NO ASSIGNMENT TO BORROWER. No such assignment
shall be made to the Borrower or any of the Borrower’s
Affiliates or Subsidiaries.




(vi) NO ASSIGNMENT TO NATURAL PERSONS. No such
assignment shall be made to a natural person.




Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective
date specified in each Assignment and Assumption, the Eligible Assignee
thereunder shall be a party to this Credit Agreement and, to the extent
of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under this Credit Agreement, and the
assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its
obligations under this Credit Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender’s rights
and obligations under this Credit Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of
Sections 3.6, 3.11, 3.12 and 11.5 with respect to facts and
circumstances occurring prior to the effective date of such assignment).
Upon request, the Borrower (at its expense) shall execute and deliver a
Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Credit Agreement that does not comply
with this subsection shall be treated for purposes of this Credit
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with Section 11.3(d).




(c) REGISTER. The Administrative Agent, acting solely for
this purpose as an agent of the Borrower, shall maintain at the
Administrative Agent’s office a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amounts
of the Loans and LOC Obligations owing to, each Lender pursuant to the
terms hereof from time to time (the “REGISTER”). The entries in the
Register shall be conclusive, and the Borrower, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Credit Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower
and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.




(d) PARTICIPATIONS. Any Lender may at any time, without the
consent of, or notice to, the Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or the
Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“PARTICIPANT”) in all or a portion of such Lender’s rights and/or
obligations under this Credit Agreement (including all or a portion of
its Commitment and/or the Loans (including such Lender’s participations
in LOC Obligations and/or Swingline Loans) owing to it); PROVIDED that
(i) such Lender’s obligations under this Credit Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative Agent, the Issuing Lender and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Credit
Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the
sole right to enforce this Credit Agreement and to approve any
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provision of this Credit Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of
the Participant, agree to any amendment, waiver or other modification
described in the first proviso to Section 11.6 that directly affects
such Participant. Subject to subsection (e) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits
of Sections 3.6, 3.11 and 3.12 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to Section 11.3(b).
To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section 11.2 as though it were a Lender, provided
such Participant agrees to be subject to Section 3.14 as though it were
a Lender.




(e) LIMITATIONS UPON PARTICIPANT RIGHTS. A Participant shall
not be entitled to receive any greater payment under Section 3.6 or 3.11
than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale
of the participation to such Participant is made with the Borrower’s
prior written consent. A Participant that would be a Foreign Lender if
it were a Lender shall not be entitled to the benefits of Section 3.11
unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 3.11(d) as though it were a Lender.




(f) CERTAIN PLEDGES. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under
this Credit Agreement (including under its Note, if any) to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; PROVIDED that no such pledge or
assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.




(g) ELECTRONIC EXECUTION OF ASSIGNMENTS. The words
“execution,” “signed,” “signature,” and words of like import in any
Assignment and Assumption shall be deemed to include electronic
signatures or the keeping of records in electronic form, each of which
shall be of the same legal effect, validity or enforceability as a
manually executed signature or the use of a paper-based recordkeeping
system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global
and National Commerce Act, or any other similar state laws based on the
Uniform Electronic Transactions Act.




(h) RESIGNATION AS ISSUING LENDER OR SWINGLINE LENDER AFTER
ASSIGNMENT. Notwithstanding anything to the contrary contained herein,
if at any time Bank of America assigns all of its Revolving Commitments
and Revolving Loans pursuant to Section 11.3(b), Bank of America may,
(i) upon 30 days’ notice to the Borrower and the Lenders, resign as
Issuing Lender and/or (ii) upon 30 days’ notice to the Borrower, resign
as Swingline Lender. In the event of any such resignation as Issuing
Lender or Swingline Lender, the Borrower shall be entitled to appoint
from among the Lenders a successor Issuing Lender or Swingline Lender
hereunder; PROVIDED, HOWEVER, that no failure by the Borrower to appoint
any such successor shall affect the resignation of Bank of America as
Issuing Lender or Swingline Lender, as the case may be. If Bank of
America resigns as Issuing Lender, it shall retain all the rights,
powers, privileges and duties of the Issuing Lender hereunder with
respect to all Letters of Credit outstanding as of the effective date of
its resignation as Issuing Lender and all LOC Obligations with respect
thereto (including the right to require the Lenders to make Base Rate
Loans or fund risk participations in Unreimbursed Amounts pursuant to
Section 2.2(c)). If Bank of America resigns as Swingline Lender, it
shall retain all the rights of the Swingline Lender provided for
hereunder with respect to Swingline Loans made by it and outstanding as
of the effective date of such resignation, including the right to
require the Lenders to make Base Rate Loans or fund risk participations
in


 


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outstanding Swingline Loans pursuant to Section 2.3. Upon the
appointment of a successor Issuing Lender and/or Swingline Lender, (a)
such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring Issuing Lender or
Swingline Lender, as the case may be, and (b) the successor Issuing
Lender shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other
arrangements satisfactory to Bank of America to effectively assume the
obligations of Bank of America with respect to such Letters of Credit.




11.4 NO WAIVER; REMEDIES CUMULATIVE.



No failure or delay on the part of the Administrative Agent or any
Lender in exercising any right, power or privilege hereunder or under any other
Credit Document and no course of dealing between the Administrative Agent or any
Lender and any of the Credit Parties shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder
or under any other Credit Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder or
thereunder. The rights and remedies provided herein are cumulative and not
exclusive of any rights or remedies which the Administrative Agent or any Lender
would otherwise have. No notice to or demand on any Credit Party in any case
shall entitle the Credit Parties to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
Administrative Agent or the Lenders to any other or further action in any
circumstances without notice or demand.




11.5 EXPENSES; INDEMNITY; DAMAGE WAIVER.



(a) The Credit Parties jointly and severally agree to pay on demand
all costs and expenses of the Administrative Agent, the Issuing Lender and their
Affiliates in connection with the syndication, preparation, execution, delivery,
administration, modification, and amendment of this Credit Agreement, the other
Credit Documents, and the other documents to be delivered hereunder, including,
without limitation, the reasonable fees and expenses of counsel with respect
thereto and with respect to advising the Administrative Agent as to its rights
and responsibilities under the Credit Documents. The Credit Parties further
jointly and severally agree to pay on demand all costs and expenses of the
Administrative Agent, the Issuing Lender and the Lenders, if any (including,
without limitation, reasonable attorneys’ fees and expenses), in connection with
the enforcement (whether through negotiations, legal proceedings, or otherwise)
of the Credit Documents and the other documents to be delivered hereunder.



(b) The Credit Parties jointly and severally agree to indemnify and
hold harmless the Administrative Agent, the Issuing Lender and each Lender and
each of their Affiliates and their respective officers, directors, employees,
agents, and advisors (each, an “INDEMNIFIED PARTY”) from and against any and all
claims, damages, losses, liabilities, costs, and expenses (including, without
limitation, reasonable attorneys’ fees) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation, or proceeding or preparation of defense in
connection therewith) the Credit Documents, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Loans (including any
of the foregoing arising from the negligence of the Indemnified Party), except
to the extent such claim, damage, loss, liability, cost, or expense is found in
a final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party’s gross negligence or willful misconduct.
In the case of an investigation, litigation or other proceeding to which the
indemnity in this Section 11.5 applies, such indemnity shall be effective
whether or not such investigation, litigation or proceeding is brought by any of
the Credit Parties, their respective directors, shareholders or creditors or an
Indemnified Party or any other Person or any Indemnified Party is otherwise a
party thereto and whether or not the transactions contemplated hereby are
consummated. The Credit Parties agree not to assert any claim against the
Administrative Agent, any Lender, any of their


 


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Affiliates, or any of their respective directors, officers, employees,
attorneys, agents, and advisers, on any theory of liability, for special,
indirect, consequential, or punitive damages arising out of or otherwise
relating to the Credit Documents, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Loans. No Indemnified Party
shall be liable for any damages arising from the use by unintended recipients of
any information or other materials distributed to such unintended recipients by
such Indemnified Party through telecommunications, electronic or other
information transmission systems in connection with this Credit Agreement or the
other Credit Documents or the transactions contemplated hereby or thereby other
than for direct or actual damages resulting from the gross negligence or willful
misconduct of such Indemnified Party as determined by a final and nonappealable
judgment of a court of competent jurisdiction.



(c) REIMBURSEMENT BY LENDERS. To the extent that the Borrower for
any reason fails to indefeasibly pay any amount required under subsection (a) or
(b) of this Section to be paid by it to the Administrative Agent (or any
sub-agent thereof), the Issuing Lender or any Related Party of any of the
foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent), the Issuing Lender or such Related Party, as the case may
be, such Lender’s pro rata share (based on its Revolving Commitment Percentage)
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount, PROVIDED that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent (or any
such sub-agent) or the Issuing Lender in its capacity as such, or against any
Related Party of any of the foregoing acting for the Administrative Agent (or
any such sub-agent) or Issuing Lender in connection with such capacity. The
obligations of the Lenders under this subsection (c) are subject to the
provisions of Section 3.13(b).



(d) PAYMENTS. All amounts due under this Section shall be payable
not later than ten Business Days after demand therefor.



(e) Without prejudice to the survival of any other agreement of the
Credit Parties hereunder, the agreements and obligations of the Credit Parties
contained in this Section 11.5 shall survive the repayment of the Loans, LOC
Obligations and other obligations under the Credit Documents and the termination
of the Commitments hereunder.




11.6 AMENDMENTS, WAIVERS AND CONSENTS.



Neither this Credit Agreement nor any other Credit Document nor any of
the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing entered into by, or approved in writing by, the Required Lenders and the
Borrower, PROVIDED, HOWEVER, that:




(a) without the consent of each Lender affected thereby,
neither this Credit Agreement nor any other Credit Document may be
amended to




(i) extend the final maturity of any Loan or of any
reimbursement obligation, or any portion thereof, arising from
drawings under Letters of Credit,




(ii) reduce the rate or extend the time of payment of
interest (other than as a result of waiving the applicability of
any post-default increase in interest rates) thereon or Fees
hereunder,




(iii) reduce or waive the principal amount of any Loan
or of any reimbursement obligation, or any portion thereof,
arising from drawings under Letters of Credit,


 


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(iv) increase the Commitment of a Lender over the
amount thereof in effect (it being understood and agreed that a
waiver of any Default or Event of Default or mandatory reduction
in the Commitments shall not constitute a change in the terms of
any Commitment of any Lender),




(v) release the Borrower or, except in a transaction
permitted under Section 8.4 or Section 8.5, substantially all of
the other Credit Parties from its or their obligations under the
Credit Documents,




(vi) amend, modify or waive any provision of this
Section 11.6 or Section 3.14,




(vii) reduce any percentage specified in, or otherwise
modify, the definition of Required Lenders, or




(viii) consent to the assignment or transfer by the
Borrower or all or substantially all of the other Credit Parties
of any of its or their rights and obligations under (or in
respect of) the Credit Documents except as permitted thereby;




(b) without the consent of the Administrative Agent, no
provision of Section 10 may be amended; and




(c) without the consent of the Issuing Lender, no provision
of Section 2.2 may be amended, and without the consent of the Swingline
Lender, no provision of Section 2.3 may be amended.




Notwithstanding the fact that the consent of all the Lenders is required
in certain circumstances as set forth above, (x) each Lender is entitled
to vote as such Lender sees fit on any bankruptcy reorganization plan
that affects the Loans, and each Lender acknowledges that the provisions
of Section 1126(c) of the Bankruptcy Code supersedes the unanimous
consent provisions set forth herein and (y) the Required Lenders may
consent to allow a Credit Party to use cash collateral in the context of
a bankruptcy or insolvency proceeding.




11.7 COUNTERPARTS.



This Credit Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. It shall not be necessary in
making proof of this Credit Agreement to produce or account for more than one
such counterpart for each of the parties hereto. Delivery by facsimile by any of
the parties hereto of an executed counterpart of this Credit Agreement shall be
as effective as an original executed counterpart hereof.




11.8 HEADINGS.



The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.




11.9 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.



All indemnities set forth herein and all representations and warranties
made hereunder and in any other Credit Document or other document delivered
pursuant hereto or thereto or in connection herewith


 


75









 





or therewith shall survive the execution and delivery of this Credit Agreement,
the making of the Loans, the issuance of the Letters of Credit, the repayment of
the Loans, LOC Obligations and other obligations and the termination of the
Commitments hereunder. Such representations and warranties have been or will be
relied upon by the Administrative Agent and each Lender, regardless of any
investigation made by the Administrative Agent or any Lender or on their behalf
and notwithstanding that the Administrative Agent or any Lender may have had
notice or knowledge of any Default or Event of Default at the time of any
extension of credit hereunder, and shall continue in full force and effect as
long as any Loan or any other Credit Party Obligation hereunder shall remain
unpaid or unsatisfied or any Letter of Credit shall remain outstanding.




11.10 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE.




(a) THIS CREDIT AGREEMENT AND, UNLESS OTHERWISE EXPRESSLY
PROVIDED THEREIN, THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK. Any legal action or proceeding with respect to this Credit
Agreement or any other Credit Document may be brought in the courts of
the State of New York, or of the United States located in the State of
New York, and, by execution and delivery of this Credit Agreement, each
of the Credit Parties hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the nonexclusive
jurisdiction of such courts. Each of the Credit Parties further
irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to it
at the address set out for notices pursuant to Section 11.1, such
service to become effective three (3) days after such mailing. Nothing
herein shall affect the right of the Administrative Agent or any Lender
to serve process in any other manner permitted by law or to commence
legal proceedings or to otherwise proceed against any Credit Party in
any other jurisdiction.




(b) Each of the Credit Parties hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue of
any of the aforesaid actions or proceedings arising out of or in
connection with this Credit Agreement or any other Credit Document
brought in the courts referred to in subsection (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has
been brought in an inconvenient forum.




(c) EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY
RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
ARISING UNDER ANY CREDIT DOCUMENT OR IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF
THEM WITH RESPECT TO ANY CREDIT DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY
AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY
PARTY TO THIS CREDIT AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.


 


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11.11 SEVERABILITY.



If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.




11.12 ENTIRETY.



This Credit Agreement together with the other Credit Documents represent
the entire agreement of the parties hereto and thereto, and supersede all prior
agreements and understandings, oral or written, if any, including any commitment
letters or correspondence relating to the Credit Documents or the transactions
contemplated herein and therein.




11.13 BINDING EFFECT; TERMINATION.




(a) This Credit Agreement shall become effective at such
time when all of the conditions set forth in Section 5.1 have been
satisfied or waived by the Lenders and it shall have been executed by
each Credit Party and the Administrative Agent, and the Administrative
Agent shall have received copies hereof (telefaxed or otherwise) which,
when taken together, bear the signatures of each Lender, and thereafter
this Credit Agreement shall be binding upon and inure to the benefit of
each Credit Party, the Administrative Agent and each Lender and their
respective successors and assigns.




(b) The term of this Credit Agreement shall be until no
Loans, LOC Obligations or any other amounts payable hereunder or under
any of the other Credit Documents shall remain outstanding, no Letters
of Credit shall be outstanding, all of the Credit Party Obligations have
been irrevocably satisfied in full and all of the Commitments hereunder
shall have expired or been terminated.




11.14 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY.



Each of the Administrative Agent, the Lenders and the Issuing Lender
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its Affiliates and to its and
its Affiliates’ respective partners, directors, officers, employees, agents,
advisors and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Credit Document or any action or proceeding
relating to this Credit Agreement or any other Credit Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Credit Agreement or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations, (g) with the consent
of the Borrower or (h) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Section or (y) becomes
available to the Administrative Agent, any Lender, the Issuing Lender or any of
their respective Affiliates on a nonconfidential basis from a source other than
the Borrower.


 


77









 





For purposes of this Section, “INFORMATION” means all information
received from the Borrower or any Subsidiary relating to the Borrower or any
Subsidiary or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or the
Issuing Lender on a nonconfidential basis prior to disclosure by the Borrower or
any Subsidiary, PROVIDED that, in the case of information received from the
Borrower or any Subsidiary after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.




11.15 USE OF SOURCES.



Each of the Lenders hereby represents and warrants to the Borrower that
at least one of the following statements is an accurate representation as to the
course of funds to be used by such lender in connection with the financing
hereunder:




(a) no part of such funds constitutes assets allocated to
any separate account maintained by such lender in which any employee
benefit plan (or its related trust) has any interest;




(b) to the extent that any part of such funds constitutes
assets allocated to any separate account maintained by such lender, such
Lender has disclosed to the Borrower the name of each employee benefit
plan whose assets in such account exceed 10% of the total assets of such
account as of the date of such purchase (and, for purposes of this
subsection (b), all employee benefit plans maintained by the same
employer or employee organization are deemed to be a single plan;




(c) to the extent that any part of such funds constitutes
assets of an insurance company’s general account, such insurance company
has complied with all of the requirements of the regulations issued
under Section 401(e)(a)(A) of ERISA; or




(d) such funds constitute assets of one or more specific
benefit plans which such Lender has identified in writing to the
Borrower.



As used in this Section 11.15, the terms “employee benefit plan” and
“separate account” shall have the respective meanings assigned to such terms in
Section 3 of ERISA.




11.16 CONFLICT.



To the extent that there is a conflict or inconsistency between any
provision hereof, on the one hand, and any provision of any Credit Document, on
the other hand, this Credit Agreement shall control.




11.17 US PATRIOT ACT NOTICE.



Each Lender and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrower that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the Act.


 


78









 






11.18 NO ADVISORY OR FIDUCIARY RESPONSIBILITY.



In connection with all aspects of each transaction contemplated hereby
(including in connection with any amendment, waiver or other modification hereof
or of any other Credit Document), the Borrower and each other Credit Party
acknowledges and agrees, and acknowledges its Affiliates’ understanding, that:
(i) (A) the arranging and other services regarding this Credit Agreement
provided by the Administrative Agent and the Arranger are arm’s-length
commercial transactions between the Borrower, each other Credit Party and their
respective Affiliates, on the one hand, and the Administrative Agent and the
Arranger, on the other hand, (B) each of the Borrower and the other Credit
Parties has consulted its own legal, accounting, regulatory and tax advisors to
the extent it has deemed appropriate, and (C) the Borrower and each other Credit
Party is capable of evaluating, and understands and accepts, the terms, risks
and conditions of the transactions contemplated hereby and by the other Credit
Documents; (ii) (A) the Administrative Agent and the Arranger each is and has
been acting solely as a principal and, except as expressly agreed in writing by
the relevant parties, has not been, is not, and will not be acting as an
advisor, agent or fiduciary for the Borrower, any other Credit Party or any of
their respective Affiliates, or any other Person and (B) neither the
Administrative Agent nor the Arranger has any obligation to the Borrower, any
other Credit Party or any of their respective Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth
herein and in the other Credit Documents; and (iii) the Administrative Agent and
the Arranger and their respective Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Borrower, the
other Credit Parties and their respective Affiliates, and neither the
Administrative Agent nor the Arranger has any obligation to disclose any of such
interests to the Borrower, any other Credit Party or any of their respective
Affiliates. To the fullest extent permitted by law, each of the Borrower and the
other Credit Parties hereby waives and releases any claims that it may have
against the Administrative Agent and the Arranger with respect to any breach or
alleged breach of agency or fiduciary duty in connection with any aspect of any
transaction contemplated hereby.




11.19 REPLACEMENT OF LENDERS.



If (i) any Lender requests compensation under Sections 3.6 and 3.9, (ii)
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.11,
(iii) a Lender (a “NON-CONSENTING LENDER”) does not consent to a proposed
change, waiver, discharge or termination with respect to any Credit Document
that has been approved by the Required Lenders as provided in Section 11.6 but
requires unanimous consent of all Lenders or all Lenders directly affected
thereby (as applicable) and, or (iv) any Lender or the Issuing Lender is a
Defaulting Lender, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender or
Issuing Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in, and consents required by, Section
11.3), all of its interests, rights and obligations under this Credit Agreement
and the related Credit Documents to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment), PROVIDED that:




(a) the Borrower shall have paid to the Administrative Agent
the assignment fee specified in Section 11.3(b);




(b) such Lender shall have received payment of an amount
equal to the outstanding principal of its Loans and L/C Advances,
accrued interest thereon, accrued fees and all other amounts payable to
it hereunder and under the other Credit Documents (including any amounts
under Section 3.12) from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of
all other amounts);


 


79









 






(c) in the case of any such assignment resulting from a
claim for compensation under Sections 3.6 and 3.9 or payments required
to be made pursuant to Section 3.11, such assignment will result in a
reduction in such compensation or payments thereafter;




(d) such assignment does not conflict with applicable
Requirements of Law; and




(e) in the case of any such assignment resulting from a
Non-Consenting Lender’s failure to consent to a proposed change, waiver,
discharge or termination with respect to any Credit Document, the
applicable replacement bank, financial institution or Fund consents to
the proposed change, waiver, discharge or termination; PROVIDED that the
failure by such Non-Consenting Lender to execute and deliver an
Assignment and Assumption shall not impair the validity of the removal
of such Non-Consenting Lender and the mandatory assignment of such
Non-Consenting Lender’s Commitments and outstanding Loans and
participations in LOC Obligations and Swingline Loans pursuant to this
Section 11.19 shall nevertheless be effective without the execution by
such Non-Consenting Lender of an Assignment and Assumption.



A Lender shall not be required to make any such assignment or delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.



If the Issuing Lender is a Defaulting Lender, then the Borrower may, at
its sole expense and effort, upon notice to the Issuing Lender and the
Administrative Agent, require the Issuing Lender to resign as Issuing Lender,
PROVIDED THAT (i) such resigning Issuing Lender shall retain all the rights,
powers, privileges and duties of the Issuing Lender hereunder with respect to
all Letters of Credit outstanding as of the effective date of its resignation as
Issuing Lender and all LOC Obligations with respect thereto (including the right
to require the Lenders to make Base Rate Loans or fund risk participations in
Unreimbursed Amounts pursuant to Section 2.2(c)) and (ii) a successor Issuing
Lender shall have been appointed and such successor Issuing Lender shall have
issued letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such resignation or make other arrangements
satisfactory to the resigning Issuing Lender to effectively assume the
obligations of such resigning Issuing Lender with respect to such Letters of
Credit. The Issuing Lender shall not be required to resign if, prior thereto,
the circumstances entitling the Borrower to require such resignation cease to
apply.



[Signature Page to Follow]




 


80









 








IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Credit Agreement to be duly executed and delivered as of the date first
above written.



	 	 	 	 	 
	BORROWER:	TRACTOR SUPPLY COMPANY,


a Delaware corporation

 	 
	 	By:  	/s/ James F. Wright
 	 
	 	 	Name:  	James F. Wright 	 
	 	 	Title:  	President and Chief Executive Officer 	 
	 	 	 
	 	By:  	                                /s/ Anthony F. Crudele
 	 
	 	 	Name:  	Anthony F. Crudele 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	GUARANTORS:	TRACTOR SUPPLY CO. OF MICHIGAN, LLC,


a Michigan limited liability company

 	 
	 	By:  	/s/ James F. Wright
 	 
	 	 	Name:  	James F. Wright 	 
	 	 	Title:  	President and Chief Executive Officer 	 
	 	 	 
	 	By:  	                                /s/ Anthony F. Crudele
 	 
	 	 	Name:  	Anthony F. Crudele 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	TRACTOR SUPPLY CO. OF TEXAS, LP,

a Texas limited partnership

 	 
	 	By:  	/s/ James F. Wright
 	 
	 	 	Name:  	James F. Wright 	 
	 	 	Title:  	President and Chief Executive Officer 	 
	 	 	 
	 	By:  	                                /s/ Anthony F. Crudele
 	 
	 	 	Name:  	Anthony F. Crudele 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	DEL’S, LLC


a Delaware limited liability company

 	 
	 	By:  	/s/ Alex Stanton
 	 
	 	 	Name:  	Alex Stanton 	 
	 	 	Title:  	Treasurer 	 



[Signatures continue.]






 


 









 







	 	 	 	 	 
	ADMINISTRATIVE AGENT:	BANK OF AMERICA, N.A.

 	 
	 	By:  	/s/ Michael Brashler
 	 
	 	 	Name:  	Michael Brashler 	 
	 	 	Title:  	Vice President 	 
	 
	LENDERS:	BANK OF AMERICA, N.A.

 	 
	 	By:  	/s/ Lisa Barksdale
 	 
	 	 	Name:  	Lisa Barksdale 	 
	 	 	Title:  	Vice President 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ John Chapman
 	 
	 	 	Name:  	John Chapman 	 
	 	 	Title:  	Vice Presidnet 	 
	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Bradford Vieira
 	 
	 	 	Name:  	Bradford Vieira 	 
	 	 	Title:  	Vice President 	 
	 
	 	SUNTRUST BANK

 	 
	 	By:  	/s/ Kay M. Yarbrough
 	 
	 	 	Name:  	Kay M. Yarbrough 	 
	 	 	Title:  	Vice President 	 
	 
	 	JPMORGAN CHASE BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Robert L. Mendoza
 	 
	 	 	Name:  	Robert L. Mendoza 	 
	 	 	Title:  	Vice President 	 
	 
	 	BRANCH BANKING & TRUST COMPANY

 	 
	 	By:  	/s/ Natalie Ruggiero
 	 
	 	 	Name:  	Natalie Ruggiero 	 
	 	 	Title:  	Vice President 	 



 


 









 





	 	 	 	 	 
	 	NATIONAL CITY BANK

 	 
	 	By:  	/s/ Michael Durbin
 	 
	 	 	Name:  	Michael Durbin 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	REGIONS BANK

 	 
	 	By:  	/s/ Monty R. Trimble
 	 
	 	 	Name:  	Monty R. Trimble 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	FIFTH THIRD BANK

 	 
	 	By:  	/s/ John Perez
 	 
	 	 	Name:  	John Perez 	 
	 	 	Title:  	Vice President 	 




 


 











 




Schedule 1.1(a)




EXISTING LETTERS OF CREDIT



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Outstanding	 
	L/C #	 	Beneficiary	 	Expiry Date	 	 	Amount	 
	3042745	 	Royal Indemnity Company
	 	 	4/30/07	 	 	 	1,051,000	 
	3042746	 	Hartford Fire Insurance Company
	 	 	5/1/07	 	 	 	3,590,000	 
	3042747	 	Hartford Fire Insurance Company
	 	 	5/1/07	 	 	 	3,300,000	 
	3046998	 	Florida Power & Light Company
	 	 	3/15/07	 	 	 	5,870	 
	3046999	 	New York State Electric & Gas
	 	 	3/15/2007	 	 	 	30,650	 
	3035687	 	Lumbermens Mutual Casualty Company
	 	 	3/16/07	 	 	 	384,000	 
	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	$	8,361,520	 
	 	 	 	 	 	 	 	 	 






 


 








 





Schedule 1.1(b)




LIENS




None.



 


 









 




Schedule 2.1(a)


LENDERS



	 	 	 	 	 	 	 	 	 
	Lender	 	Commitment	 	 	Applicable Percentage	 
	 
	Bank of America, N.A.
	 	$	45,000,000	 	 	 	18.000000000	%
	JPMorgan Chase Bank, National Association
	 	$	35,000,000	 	 	 	14.000000000	%
	U.S. Bank National Association
	 	$	35,000,000	 	 	 	14.000000000	%
	Regions Bank
	 	$	35,000,000	 	 	 	14.000000000	%
	Wachovia Bank, National Association
	 	$	35,000,000	 	 	 	14.000000000	%
	Fifth Third Bank
	 	$	20,000,000	 	 	 	8.000000000	%
	Suntrust Bank
	 	$	15,000,000	 	 	 	6.000000000	%
	National City Bank
	 	$	15,000,000	 	 	 	6.000000000	%
	Branch Banking & Trust Company
	 	$	15,000,000	 	 	 	6.000000000	%
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Total
	 	$	250,000,000.00	 	 	 	100.000000000	%
	 	 	 	 	 	 






 


 









 




Schedule 6.12



SUBSIDIARIES


Tractor Supply Co. of Texas, LP


EIN: 62-1859500

Jurisdiction of Formation: Texas

Registered Agent Address:



c/o CT Corporation System

350 North St. Paul Street

Dallas, Texas 75201



Number of shares outstanding: N/A

Ownership:



Tractor Supply Company – 1% General Partners

Tractor Supply Co. of Michigan, LLC – 99% Limited Partner



Outstanding Options, warrants and similar rights: N/A




Tractor Supply Co. of Michigan, LLC



EIN: 62-1859502

Jurisdiction of Formation: Michigan

Registered Agent Address:



c/o Corporation Service Company

601 Abbott Road

East Lansing, Michigan 48823



Number of shares outstanding: N/A

Ownership: Tractor Supply Company – 100%

Outstanding Options, warrants and similar rights: N/A




Del’s Farm Supply, LLC



EIN: 20-8218886

Jurisdiction of Formation: Delaware

Registered Agent Address:



c/o Corporation Trust Company

Corporation Trust Center

1209 Orange Street

Wilmington, Delaware 19801



Number of shares outstanding: N/A

Ownership: Tractor Supply Company – 100%

Outstanding Options, warrants and similar rights: N/A




 


 









 







Schedule 6.22




LABOR MATTERS




None.



 


 









 




Schedule 8.1


INDEBTEDNESS


Capital Lease Obligations

As of 12/30/2006



	 	 	 	 	 
	Description	 	Obligation	 
	Store #455 - Terrell, TX
	 	$	3,457,000	 
	Various Information Technology Leases
	 	$	2,753,000	 
	 
	 	 	 
	Total
	 	$	6,210,000	 
	 
	 	 	 





 


 








 





Schedule 8.9




TRANSACTIONS WITH AFFILIATES




None.



 


 









 





Schedule 11.1




NOTICES




Administrative Agent:



For operational notices (borrowings, payments, etc.)




Bernie Gunn

Telephone: 214-209-4748

Fax: 877-722-2207




Wire Instructions:




	 	 	 
	 
	 	 
	Bank of America, N.A.
	New York, NY
	Acct. #:

	 	936-933-7800
	ABA #:

	 	026-009-593
	Attn:

	 	Credit Services
	Ref:

	 	Tractor Supply






For Financials and other purposes:



Primary Contact




Antonikia (Toni) Thomas

Agency Officer

Bank of America

231 South LaSalle Street

Chicago, Illinois 60604

Mail Code: IL1-231-10-41

Telephone: (312) 828-8938

Fax:            (877) 206-8432

Email:        antonikia.l.thomas@bankofamerica.com




Bank of America, N.A., as Issuing Lender:




Trade Operations – Scranton, PA

Bank of America, N.A.

1 Fleet Way

Mail Code: PA6-580-02-30

Scranton, PA 18507

Attention:    Alfonso (Al) Malave

Assistant     Vice President and Operations Team Manager

Telephone: (570) 330-4212

Fax:              (570) 330-4186

Email:           alfonso.malave@bankofamerica.com



 


 









 





Loan Parties:




Tractor Supply Company

200 Powell Place

Brentwood, TN 37027




Primary Contact:



Attention: Chief Financial Officer

Telephone: 615.366.4600

Facsimile: 615.366.4855

Electronic Mail: acrudele@tractorsupply.com




With a copy to:



General Counsel

Telephone: 615.336.4813

Facsimile: 615.277.4813

Electronic Mail: jcherry@tractorsupply.com



Website Address: www.myTSCstore.com




 


 









 




Exhibit 2.1(b)(i)


FORM OF

NOTICE OF BORROWING



	 	 	 
	TO:

	 	BANK OF AMERICA, N.A., as Administrative Agent
	 

	 	IL1-231-10-41
	 

	 	231 South LaSalle Street
	 

	 	Chicago, Illinois 60604
	 
	 	 
	RE:
	 	Credit Agreement dated as of February _____, 2007 among Tractor Supply
Company (the “Borrower”), the Subsidiary Guarantors, the Lenders party thereto and Bank of America, N.A., as
Administrative Agent (as the same may be amended, modified, extended or restated from time to
time, the “Credit Agreement”)

	 
	 	 
	DATE:

	 	                                        ,                     






1. This Notice of Borrowing is made pursuant to the terms of the Credit Agreement. All
capitalized terms used herein and not otherwise defined shall have the meanings provided in the
Credit Agreement.



2. Please be advised that the Borrower is requesting Revolving Loans in the amount of
$                     to be funded on                     ,
 _____ at the interest rate option set forth in
paragraph 3 below. Subsequent to the funding of the requested Revolving Loan, the aggregate amount
of Revolving Obligations outstanding will be $                                         which is less than or equal to the
Revolving Committed Amount.



3. The interest rate option applicable to the requested Revolving Loans shall be:



(a)                      the Adjusted Base Rate



(b)                      the Adjusted Eurodollar Rate for an Interest Period of:



                     one month



                     two months



                     three months



                     six months



4. The representations and warranties made by the Borrower and each other Credit Party in any
Credit Document are true and correct in all material respects at and as if made on the date of the
requested Revolving Loans except to the extent they expressly relate to an earlier date.



5. No Default or Event of Default exists or shall be continuing either prior to or after
giving effect to the Revolving Loans made pursuant to this Notice of Borrowing.


 


 









 




6. The Borrower has complied in all respects with Section 2.1 of the Credit Agreement, in
requesting the Revolving Loan referenced in this Notice of Borrowing.



	 	 	 	 	 	 	 
	 	 	TRACTOR SUPPLY COMPANY, a Delaware corporation	 
	 
	 	 	 	 	 	 
	 
	 	By: 	 
	 	 
	 
	 	 	Name: 	 	 	 
	 
	 	 	Title:	 
	 	 
	 
	 	 	 	 
	 	 






 


2








 




Exhibit 2.1(e)


FORM OF

REVOLVING NOTE


                                        ,                     


FOR VALUE RECEIVED, TRACTOR SUPPLY COMPANY, a Delaware corporation (the “Borrower”),
hereby promises to pay to the order of                                          (the “Lender”), at the office
of Bank of America, N.A. (the “Administrative Agent”), as set forth in that certain Credit
Agreement (as it may be amended, modified, extended or restated from time to time, the “Credit
Agreement”), dated as of February _____, 2007, among the Borrower, the Subsidiary Guarantors, the
Lenders party thereto (including the Lender) and Bank of America, N.A., as Administrative Agent (or
at such other place or places as the holder of this Revolving Note may designate), the principal
sum of such Lender’s Revolving Commitment or, if less, the aggregate unpaid principal amount of all
Revolving Loans made by the Lender to the Borrower, together with interest thereon at the rates per
annum and on the dates provided in the Credit Agreement.


This Note is one of the Revolving Notes referred to in the Credit Agreement and evidences
Revolving Loans made by the Lender thereunder. All capitalized terms used in this Revolving Note
and not otherwise defined shall have the meanings provided in the Credit Agreement and the terms
and conditions of the Credit Agreement are expressly incorporated herein and made a part hereof.


The Credit Agreement provides for the acceleration of the maturity of the Revolving Loans
evidenced by this Revolving Note upon the occurrence of certain events (and for payment of
collection costs in connection therewith) and for prepayments of Revolving Loans upon the terms and
conditions specified therein. In the event this Revolving Note is not paid when due at any stated
or accelerated maturity, the Borrower agrees to pay, in addition to principal and interest, all
costs of collection, including reasonable attorney fees.


The date, amount, type, interest rate and duration of Interest Period (if applicable) of each
Revolving Loan made by the Lender to the Borrower, and each payment made on account of the
principal thereof, shall be recorded by the Lender on its books; provided that the failure of the
Lender to make any such recordation or endorsement shall not affect the obligations of the Borrower
to make a payment when due of any amount owing hereunder or under this Revolving Note in respect of
the Revolving Loans to be evidenced by this Revolving Note, and each such recordation or
endorsement shall be prima facie evidence of such information, absent manifest error.


Except as permitted by Section 11.3(b) of the Credit Agreement, this Revolving Note may not be
assigned by the Lender to any other Person.


THIS REVOLVING NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.


 


 








 




IN WITNESS WHEREOF, the Borrower has caused this Revolving Note to be executed as of the date
first above written.



	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	TRACTOR SUPPLY COMPANY, a Delaware corporation	 
	 
	 	 	 	 	 	 
	 

	 	By: 	 
	 	 
	 
	 	 	Name: 	 	 	 
	 
	 	 	Title: 	 
	 	 
	 

	 	 	 	 

	 	 





 


 








 




Exhibit 2.3(b)


FORM OF

SWINGLINE LOAN REQUEST



	 	 	 
	 
	 	 
	TO:

	 	BANK OF AMERICA, N.A., as Administrative Agent
	 

	 	IL1-231-10-41
	 

	 	231 South LaSalle Street
	 

	 	Chicago, Illinois 60604
	 
	 	 
	RE:

	 	Credit Agreement dated as of February _____, 2007 among Tractor Supply Company (the “Borrower”), the Subsidiary Guarantors, the Lenders
party thereto and Bank of America, N.A., as Administrative Agent (as the same may be amended, modified, extended or restated from time to time, the “Credit Agreement”)

	 
	 	 
	DATE:

	 	                                        ,                     





1. This Swingline Loan Request is made pursuant to the terms of the Credit Agreement. All
capitalized terms used herein unless otherwise defined shall have the meanings provided in the
Credit Agreement.


2. Please be advised that the Borrower is requesting a
Swingline Loan in the amount of
$                     to be funded
on                     , 200_____.


3. Subsequent to the funding of the requested Swingline Loan, (a) the aggregate amount of
Revolving Obligations outstanding will be $                    , which is less than or equal to the
Revolving Committed Amount and (b) the aggregate amount of Swingline Loans outstanding will be
$                    , which is less than or equal to the Swingline Committed Amount.


4. The representations and warranties made by the Borrower and each other Credit Party in any
Credit Document are true and correct in all material respects at and as if made on the date of the
requested Swingline Loan except to the extent they expressly relate to an earlier date.


5. No Default or Event of Default exists or shall be continuing either prior to or after
giving effect to the Revolving Loans made pursuant to this Swingline Loan Request.


6. The Borrower has complied in all respects with Section 2.3 of the Credit Agreement, in
requesting the Swingline Loan referenced in this Swingline Loan Request.



	 	 	 	 	 	 	 
	 	 	TRACTOR SUPPLY COMPANY, a Delaware corporation	 
	 
	 	 	 	 	 	 
	 

	 	By: 	 
	 	 
	 
	 	 	Name: 	 	 	 
	 
	 	 	Title: 	 
	 	 
	 

	 	 	 	 

	 	 





 


 








 




Exhibit 2.3(e)


FORM OF

SWINGLINE NOTE


                                        ,                     


FOR VALUE RECEIVED, TRACTOR SUPPLY COMPANY, a Delaware corporation (the “Borrower”), hereby
promises to pay to the order of Bank of America, N.A. (the “Swingline Lender”) and its registered
assigns, at the office of Bank of America, N.A. (the “Administrative Agent”) as set forth in that
certain Credit Agreement dated as of February _____, 2007 between the Borrower, the Subsidiary Guarantors, the Lenders party thereto (including the Swingline Lender) and Bank of America, N.A.,
as Administrative Agent (as modified and supplemented and in effect from time to time, the “Credit
Agreement”), the principal amount of the Swingline Committed Amount (or such lesser amount as shall
equal the aggregate unpaid principal amount of the Swingline Loans made by the Swingline Lender to
the Borrower under the Credit Agreement), in Dollars and in immediately available funds, on the
dates and in the principal amounts provided in the Credit Agreement, and to pay interest on the
unpaid principal amount of each such Swingline Loan, at such office, in like money and funds, for
the period commencing on the date of such Swingline Loan until such Swingline Loan shall be paid in
full, at the rates per annum and on the dates provided in the Credit Agreement.


This Note is the Swingline Note referred to in the Credit Agreement and evidences the
Swingline Loans made by the Swingline Lender thereunder. All capitalized terms used in this
Swingline Note and not otherwise defined shall have the meanings provided in the Credit Agreement
and the terms and conditions of the Credit Agreement are expressly incorporated herein and made a
part hereof.


The Credit Agreement provides for the acceleration of the maturity of the Swingline Loans
evidenced by this Swingline Note upon the occurrence of certain events (and for payment of
collection costs in connection therewith) and for prepayments of such Swingline Loans upon the
terms and conditions specified therein. In the event this Swingline Note is not paid when due at
any stated or accelerated maturity, the Borrower agrees to pay, in addition to the principal and
interest, all costs of collection, including reasonable attorney fees.


The date, amount, type and interest rate of the Swingline Loans made by the Swingline Lender
to the Borrower, and each payment made on account of the principal thereof, shall be recorded by
the Swingline Lender on its books; provided that the failure of the Swingline Lender to make any
such recordation or endorsement shall not affect the obligations of the Borrower to make a payment
when due of any amount owing hereunder or under this Swingline Note in respect of the Swingline
Loans to be evidenced by this Swingline Note, and each such recordation or endorsement shall be
conclusive and binding absent manifest error.


This Swingline Note and the Swingline Loans evidenced hereby may be transferred in whole or in
part only by registration of such transfer on the Register maintained for such purpose by or on
behalf of the Borrower as provided in Section 11.3(c) of the Credit Agreement.


THIS SWINGLINE NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.


 


 








 




IN WITNESS WHEREOF, the Borrower has caused this Swingline Note to be executed as of the date
first above written.



	 	 	 	 	 	 	 
	 	 	TRACTOR SUPPLY COMPANY, a Delaware corporation	 
	 
	 	 	 	 	 	 
	 

	 	By: 	 
	 	 
	 
	 	 	Name: 	 	 	 
	 
	 	 	Title:	 
	 	 
	 

	 	 	 	 

	 	 





 


 








 





Exhibit 3.2




FORM OF

NOTICE OF EXTENSION/CONVERSION




	 	 	 
	 
	 	 
	TO:

	 	BANK OF AMERICA, N.A., as Administrative Agent
	 

	 	IL1-231-10-41
	 

	 	231 South LaSalle Street
	 

	 	Chicago, Illinois 60604
	 
	 	 
	RE:

	 	Credit Agreement dated as of February
_____, 2007 among Tractor Supply Company (the “Borrower”), the Subsidiary Guarantors, the Lenders
party thereto and Bank of America, N.A., as Administrative Agent (as the same may be amended, modified, extended or restated from time to
time, the “Credit Agreement”)

	 
	 	 
	DATE:

	 	                                        ,                     





1. This Notice of Extension/Conversion is made pursuant to the terms of the Credit Agreement.
All capitalized terms used herein and not otherwise defined shall have the meanings provided in the
Credit Agreement.


2. Please be advised that the Borrower is requesting that a portion of the current outstanding
Revolving Loans in the amount of $                     currently accruing interest at                      be extended or
converted as of                      at the interest rate option set forth in paragraph 3 below.


3. The interest rate option applicable to the extension or conversion of all or part of the
existing Revolving Loans (as set forth above) shall be:


(a)                      the Adjusted Base Rate


(b)                      the Adjusted Eurodollar Rate for an Interest Period of:


                     one month


                     two months


                     three months


                     six months


4. The representations and warranties made by the Credit Parties in the Credit Documents are
true and correct in all material respects at and as if made on the date hereof except to the extent
they expressly relate to an earlier date.


5. No Default or Event of Default has occurred and is continuing or would be caused by this
Notice of Extension/Conversion.


6. All conditions set forth in Section 3.2 for conversions or extensions have been satisfied.



	 	 	 	 	 	 	 
	 	 	TRACTOR SUPPLY COMPANY, a Delaware corporation	 
	 
	 	 	 	 	 	 
	 
	 	By: 	 
	 	 
	 
	 	 	Name: 	 	 	 
	 

	 	 	Title:	 
	 	 
	 

	 	 	 	 

	 	 





 


 








 




Exhibit 7.1(c)




FORM OF

OFFICER’S COMPLIANCE CERTIFICATE




	 	 	 
	 
	 	 
	TO:

	 	BANK OF AMERICA, N.A., as Administrative Agent
	 

	 	IL1-231-10-41
	 

	 	231 South LaSalle Street
	 

	 	Chicago, Illinois 60604
	 
	 	 
	RE:

	 	Credit Agreement dated as of February
_____, 2007 among Tractor Supply Company (the “Borrower”), the Subsidiary Guarantors,
the Lenders party thereto and Bank of America, N.A., as
Administrative Agent (as the same may be amended, modified,
extended or restated from time to time, the “Credit
Agreement”; all capitalized terms used herein and not
otherwise defined shall have the meanings provided in the
Credit Agreement)

	 
	 	 
	DATE :

	 	                                        ,                     





Pursuant to the terms of the Credit Agreement, I,                                         , [Chief Financial
Officer] of Tractor Supply Company (the “Borrower”), hereby certify on behalf of the Borrower that
the statements below are accurate and complete in all respects:


(a) No Default or Event of Default exists under the Credit Agreement, except as
indicated on a separate page attached hereto, together with an explanation of the action
taken or proposed to be taken with respect thereto.


(b) The [quarterly/annual] financial statements for the fiscal [quarter/year] ended
                     which accompany this certificate fairly present in all material respects the
financial condition of the Consolidated Parties as of such date and have been prepared in
accordance with GAAP.


(c) Attached hereto as Schedule 1 are calculations (calculated as of the date
of the financial statements referred to in paragraph (b) above) demonstrating compliance by
the Credit Parties with the financial covenants contained in Section 7.11 of the Credit
Agreement.



	 	 	 	 	 	 	 
	 	 	TRACTOR SUPPLY COMPANY, a Delaware corporation	 
	 
	 	 	 	 	 	 
	 

	 	By: 	 
	 	 
	 
	 	 	Name:	 	 	 
	 

	 	 	Title:	 
	 	 
	 

	 	 	 	 

	 	 





 


 








 




SCHEDULE 1

TO OFFICER’S CERTIFICATE



	 	 	 	 	 
	1. Fixed Charge Coverage Ratio
	 	 	 	 
	 
	(a) Consolidated EBITDAR
	 	$	                    	 
	 
	(b) Consolidated Cash Taxes
	 	$	                    	 
	 
	(c) [(a) – (b)]
	 	$	                    	 
	 
	(d) cash Consolidated Interest Expense
	 	$	                    	 
	 
	(e) Scheduled Funded Debt Payments
	 	$	                    	 
	 
	(f) Consolidated Rental Expense
	 	$	                    	 
	 
	(g) cash dividends
	 	$	                    	 
	 
	(h) [(d) + (e) + (f) + (g)]
	 	$	                    	 
	 
	(i) Fixed Charge Coverage
Ratio [(c) / (h)]
	 	 	:1.0	 
	 
	 	
                                                            	 
	 
	 	 	 	 
	2. Leverage Ratio
	 	 	 	 
	 
	(a) Funded Indebtedness of the
Consolidated Parties
	 	$	                    	 
	 
	(b) Consolidated Rental Expense times six
	 	$	                    	 
	 
	(c) [(a) + (b)]
	 	$	                    	 
	 
	(d) Consolidated EBITDAR
	 	$	                    	 
	 
	(e) Leverage Ratio
[(c) / (d)]
	 	 	:1.0	 
	 
	 	
                                                            	 






 


 









 




Exhibit 7.12


FORM OF

JOINDER AGREEMENT


THIS JOINDER AGREEMENT (this “Agreement”), dated as of                                         , 200
_____, is entered into between
                                        , a                                         
(the “New Subsidiary”) and BANK OF AMERICA, N.A., in its capacity as Administrative Agent (the “Administrative Agent”) under that certain
Credit Agreement dated as of February _____, 2007 (as the same may be amended, modified, extended or
restated from time to time, the “Credit Agreement”) among Tractor Supply Company (the “Borrower”),
the Subsidiary Guarantors, the Lenders party thereto and Bank of America, N.A., as Administrative
Agent. All capitalized terms used herein and not otherwise defined shall have the meanings
provided in the Credit Agreement.


The New Subsidiary and the Administrative Agent, for the benefit of the Lenders, hereby agree
as follows:


1. The New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this
Agreement, the New Subsidiary will be deemed to be a Credit Party under the Credit Agreement and a
“Subsidiary Guarantor” for all purposes of the Credit Agreement and shall have all of the
obligations of a Subsidiary Guarantor thereunder as if it had executed the Credit Agreement. The
New Subsidiary hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms,
provisions and conditions contained in the Credit Agreement, including without limitation (a) all
of the representations and warranties of the Credit Parties set forth in Section 6 of the Credit
Agreement, (b) all of the affirmative and negative covenants set forth in Sections 7 and 8 of the
Credit Agreement and (c) all of the guaranty obligations set forth in Section 4 of the Credit
Agreement. Without limiting the generality of the foregoing terms of this paragraph 1, the New
Subsidiary hereby guarantees, jointly and severally with the other Subsidiary Guarantors, to the
Administrative Agent and the Lenders, as provided in Section 4 of the Credit Agreement, the prompt
payment of the Credit Party Obligations in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly
in accordance with the terms thereof and agrees that if any of the Credit Party Obligations are not
paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash collateralization or otherwise), the New Subsidiary will, jointly and severally
together with the other Subsidiary Guarantors, promptly pay the same, without any demand or notice
whatsoever, and that in the case of any extension of time of payment or renewal of any of the
Credit Party Obligations, the same will be promptly paid in full when due (whether at extended
maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) in accordance with the terms of such extension or renewal. The New Subsidiary hereby
represents and warrants to the Administrative Agent and the Lenders that set forth on Schedule
A attached hereto is a complete and accurate list of all Subsidiaries of the New Subsidiary.
Schedule 6.12 of the Credit Agreement is hereby deemed amended to include the information
on Schedule A attached hereto.


2. The New Subsidiary is, simultaneously with the execution of this Agreement, executing and
delivering such documents and instruments as requested by the Administrative Agent in accordance
with Section 7.12 of the Credit Agreement.


 


 








 




3. The address of the New Subsidiary for purposes of Section 11.1 of the Credit Agreement is
as follows:



	 	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 





4. The New Subsidiary hereby waives acceptance by the Administrative Agent and the Lenders of
the guaranty by the New Subsidiary under the Credit Agreement upon the execution of this Agreement
by the New Subsidiary.


5. This Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be an original, but all of which shall constitute one and the same
instrument.


6. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


IN WITNESS WHEREOF, the New Subsidiary has caused this Agreement to be duly executed by its
authorized officer, and the Administrative Agent, for the benefit of the Lenders, has caused the
same to be accepted by its authorized officer, as of the day and year first above written.



	 	 	 	 	 	 	 
	 	 	[NEW SUBSIDIARY]	 	 
	 
	 	 	 	 	 	 
	 
	 	By: 	 
	 	 
	 
	 	 	Name: 	 	 	 
	 
	 	 	Title:	 
	 	 
	 
	 	 	 	 
	 	 






	 	 	 	 	 
	Acknowledged and accepted:	 	 
	 
	 	 	 	 
	BANK OF AMERICA, N.A., 
as Administrative Agent	 	 
	 
	 	 	 	 
	By: 
	 
	 	 
	 	Name: 
	 	 	 
	 	Title: 
	 
	 	 
	 

	 	 

	 	 





 


2








 





Exhibit 11.3




FORM OF

ASSIGNMENT AND ACCEPTANCE




This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between the Assignor identified in item 1
below (the “Assignor”) and the Assignee identified in item 2 below (the
“Assignee”). Capitalized terms used but not defined herein shall have the meanings given
to them in the Credit Agreement identified below (the “Credit Agreement”), receipt of a
copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth
in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a
part of this Assignment and Assumption as if set forth herein in full.



For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and percentage interest
identified below of all of such outstanding rights and obligations of the Assignor under the
respective facilities identified below (including, without limitation, Letters of Credit and
Swingline Loans included in such facilities) and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of the Assignor (in its
capacity as a Lender) against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the
loan transactions governed thereby or in any way based on or related to any of the foregoing,
including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims
and all other claims at law or in equity related to the rights and obligations sold and assigned
pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to
clauses (i) and (ii) above being referred to herein collectively as, the “Assigned
Interest”). Such sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Assignment and Assumption, without representation or warranty by the
Assignor.




	1.	 	Assignor:                                         

	 
	2.	 	Assignee:                                          [and is an
Affiliate/Approved Fund of [identify Lender]]

	 
	3.	 	Borrower: Tractor Supply Company

	 
	4.	 	Administrative Agent: Bank of America, N.A.







			
	5. 	 	Credit Agreement: The Credit Agreement, dated as of
February __, 2007, among Tractor Supply
Company, the Subsidiary Guarantors
party thereto, the Lenders party
thereto, and Bank of America, N.A., as
Administrative Agent






 


 








 





	6.	 	Assigned Interest:







	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate Amount of	 	 	Amount of	 	 	Percentage	 
	 	 	Commitment/Loans	 	 	Commitment/Loans	 	 	Assigned of	 
	Facility Assigned	 	for all Lenders	 	 	Assigned	 	 	Commitment/Loans	 
	Revolving Commitment
	 	$	                                      	 	 	$	                                	 	 	 	                                 	%






	[7.	 	 Trade Date:                                         ]






Effective Date:                                         ,
20_____


 


 








 




The terms set forth in this Assignment and Assumption are hereby agreed to:



	 	 	 	 	 	 	 
	 	 	ASSIGNOR:	 	 
	 
	 	 	[NAME OF ASSIGNOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 
	 	 
	 
	 	 	Name: 	 	 	 
	 
	 	 	Title:	 
	 	 
	 
	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	ASSIGNEE:	 	 
	 	 	[NAME OF ASSIGNEE]	 	 
	 
	 	 	 	 	 	 
	 

	 	By: 	 
	 	 
	 
	 	 	Name:	 	 	 
	 
	 	 	Title:	 
	 	 
	 
	 	 	 	 
	 	 






	 	 	 	 	 
	Accepted:	 	 
	 
	 	 	 	 
	BANK OF AMERICA, N.A., as Administrative Agent	 	 
	 
	 	 	 	 
	By: 
	 
	 	 
	 	Name:
	 	 	 
	 	Title: 
	 
	 	 
	 
	 	 
	 	 
	Consented to (as applicable):	 	 
	 
	 	 	 	 
	TRACTOR SUPPLY COMPANY	 	 
	 
	 	 	 	 
	By: 
	 
	 	 
	 	Name:
	 	 	 
	 	Title:
	 
	 	 
	 
	 	 
	 	 
	BANK OF AMERICA, N.A., as
Issuing Lender and Swingline Lender	 	 
	 
	 	 	 	 
	By:
	 
	 	 
	 	Name:
	 	 	 
	 	Title:
	 
	 	 
	 

	 	 

	 	 





 


 








 




ANNEX 1 TO ASSIGNMENT AND ASSUMPTION


STANDARD TERMS AND CONDITIONS


1. Representations and Warranties.


1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Credit Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Credit Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Credit Document.


1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 11.3(b)(iii),
(v) and (vi) of the Credit Agreement (subject to such consents, if any, as may be required under
Section 11.3(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date, it shall be
bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the
Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with
respect to decisions to acquire assets of the type represented by the Assigned Interest and either
it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is
experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement,
and has received or has been accorded the opportunity to receive copies of the most recent
financial statements delivered pursuant to Section 7.1 thereof, as applicable, and such other
documents and information as it deems appropriate to make its own credit analysis and decision to
enter into this Assignment and Assumption and to purchase the Assigned Interest, (vi) it has,
independently and without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase the Assigned Interest, and
(vii) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by
it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and
(b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the
Assignor or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Credit Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Documents are required to be performed by it as a
Lender.


 


 








 




2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective
Date and to the Assignee for amounts which have accrued from and after the Effective Date.


3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and


Assumption may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in
accordance with, the law of the State of New York.