364-DAY REVOLVING CREDIT

Exhibit 10(x)

Nucor Corporation

2004 Form 10-K

 

Published CUSIP Nos. 67034VAA8

67034VAB6

 

364-DAY REVOLVING CREDIT AGREEMENT

 

Dated as of October 1, 2004

 

among

 

NUCOR CORPORATION,

as Borrower,

 

THE LENDERS NAMED HEREIN

 

AND

 

BANK OF AMERICA, N.A.,

as Administrative Agent

 

Arranged By:

 

BANC OF AMERICA SECURITIES LLC,

as Sole Lead Arranger and Sole Book-Manager

 

TABLE OF CONTENTS

 

 

i

 

ii

 

iii

 

iv

 

SCHEDULES

 

 

v

364-DAY REVOLVING CREDIT AGREEMENT

 

THIS 364-DAY REVOLVING CREDIT AGREEMENT dated as of October 1, 2004 (the “ Credit Agreement ”), is by and among NUCOR CORPORATION, a Delaware corporation (the “ Borrower ”), the lenders named herein and such other lenders as may become a party hereto (the “ Lenders ”), and BANK OF AMERICA, N.A., as Administrative Agent (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 $125 million revolving 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 are hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I

 

DEFINITIONS

 

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

 

“ Account Designation Letter ” means the Notice of Account Designation Letter dated the date hereof from the Borrower to the Administrative Agent in substantially the form attached hereto as Schedule 1.1(a) .

 

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

 

“ Administrative Agent’s Fees ” shall have the meaning assigned to such term in Section 3.5(c) .

 

“ Affected Lender ” means such term as defined in Section 3.9(a) .

 

“ Affiliate ” means as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, a Person shall be deemed to be “controlled by” a Person if such Person possesses, directly or indirectly, power either (a) to vote 10% or more of the securities having ordinary voting power for the election of directors of such Person or (b) to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

 

“ Aggregate Revolving Committed Amount ” means the aggregate amount of Revolving Commitments in effect from time to time, being initially ONE HUNDRED AND TWENTY-FIVE MILLION DOLLARS ($125,000,000).

 

“ Applicable Rate ” means for any day, the rate per annum set forth below opposite the applicable rating for the Borrower’s senior unsecured (non-credit enhanced) long term debt then in effect, it being understood that the Applicable Rate for (i) Base Rate Loans shall be the percentage set forth under the column “Base Rate Margin”, (ii) LIBOR Loans shall be the percentage set forth under the column “LIBOR Margin”, (iii) the Facility Fee shall be the percentage set forth under the column “Facility Fee”; and (iv) the Utilization Fee shall be the percentage set forth under the column “Utilization Fee”:

 

 

The numerical classification set forth under the column “Pricing Level” shall be established based on the better of ratings by S&P and Moody’s for the Borrower’s senior unsecured (non-credit enhanced) long term debt (the “ Debt Rating ”), provided that such ratings are not more than one Pricing Level apart; and at the Pricing Level immediately above the lower of the ratings by S&P and Moody’s in the event the ratings are more than one Pricing Level apart. Initially, the Applicable Rate shall be determined based upon the Debt Rating specified in the certificate delivered pursuant to Section 4.1(j) . Thereafter, the Applicable Rate shall be determined and adjusted quarterly on the date five (5) Business Days after the end of each calendar quarter (each a “ Rate Determination Date ”) based on the Debt Rating in effect on the last day of the preceding calendar quarter and shall be effective until the next Rate Determination Date. Adjustments in the Applicable Rate shall be effective as to all Loans, existing and prospective, from the date of adjustment. The Administrative Agent shall promptly notify the Lenders of changes in the Applicable Rate.

 

“ Attributed Principal Amount ” means (i) in the case of Capital Leases, the amount of capital lease obligations determined in accordance with GAAP, (ii) in the case of Synthetic Leases, an amount determined by capitalization of the remaining lease payments thereunder as if it were a Capital Lease determined in accordance with GAAP, and (iii) in the case of Securitization Transactions, the outstanding principal amount of such financing, after taking into account and making appropriate adjustments, determined by the Administrative Agent in its reasonable judgment.

 

“ Available Foreign Currency ” means (i) Euros, Canadian Dollars, British Pounds Sterling, Swiss Francs and Japanese Yen and (ii) any other freely available currency which is freely transferable and freely convertible into Dollars and in which dealings in deposits are carried on in the London interbank market, which shall be requested by the Borrower and approved by each Lender.

 

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“ Average Outstanding Loans ” means, for any Utilization Period, the sum of the aggregate principal amount of Loans outstanding under this Credit Agreement as of the end of each day during such Utilization Period, divided by the number of days in such Utilization Period.

 

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

 

“ Bank Secrecy Act ” means 31 U.S.C. §§ 5311 et seq ., as amended from time to time, and any successor statute, and all rules and regulations from time to time promulgated thereunder.

 

“ Base Rate ” means, for any day, the rate per annum (rounded upwards, if necessary, to the nearest whole multiple of 1/100 of 1%) equal to the greater of (a) the Federal Funds Rate in effect on such day plus  ¹ / 2 of 1% or (b) the Prime Rate in effect on such day. If for any reason the Administrative Agent shall have reasonably determined (which determination shall be conclusive absent manifest error) that it is unable after due inquiry to ascertain the Federal Funds Rate for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms hereof, the Base Rate shall be determined without regard to clause (a) of the first sentence of this definition until the circumstances giving rise to such inability no longer exist. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Rate shall be effective on the effective date of such change in the Prime Rate or the Federal Funds Rate, respectively.

 

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

 

“ Borrower ” means Nucor Corporation, a Delaware corporation, as referenced in the opening paragraph, its successors and permitted assigns.

 

“ Business Day ” means any day other than a Saturday, Sunday or legal holiday on which commercial banks are open for business in Charlotte, North Carolina and New York, New York; except that when used in connection with a LIBOR Loan, such day shall also be a day on which dealings between banks are carried on in London, England in deposits of Dollars or Available Foreign Currencies, as applicable. “Business Day” shall also exclude any day on which banks are closed for dealings when used in connection with Foreign Currency Loans. “Business Day” shall also exclude any day on which banks are not open for foreign exchange dealings between banks in the exchange of the home country of such foreign currency.

 

“ 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.

 

“ 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 Period ” means the period from and including the Effective Date to but not including the earlier of (i) the Termination Date, and (ii) the date on which the Revolving Commitments terminate in accordance with the provisions of this Credit Agreement.

 

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“ Competitive Bid ” means an offer by a Lender to make a Competitive Loan pursuant to the terms of Section 2.2 .

 

“ Competitive Bid Rate ” means, as to any Competitive Bid made by a Lender in accordance with the provisions of Section 2.2 . the fixed rate of interest offered by the Lender making the Competitive Bid.

 

“ Competitive Bid Request ” means a request by the Borrower for Competitive Bids in accordance with the provisions of Section 2.2(b) .

 

“ Competitive Bid Request Fee ” means such fee, if any, agreed upon by the Borrower and the Administrative Agent payable in connection with each Competitive Bid Request.

 

“ Competitive Loan ” means a loan made by a Lender in its discretion pursuant to the provisions of Section 2.2 .

 

“ Competitive Loan Lenders ” means, at any time, those Lenders which have Competitive Loans outstanding.

 

“ Competitive Loan Maximum Amount ” shall have the meaning assigned to such term in Section 2.2(a) .

 

“ Consolidated Funded Debt ” means Funded Debt of the Borrower and its subsidiaries on a consolidated basis in accordance with GAAP.

 

“ Consolidated Funded Debt to Total Capitalization Ratio ” means the ratio of Consolidated Funded Debt to Consolidated Total Capitalization.

 

“ Consolidated Group ” means the Borrower and its consolidated subsidiaries as determined in accordance with GAAP.

 

“ Consolidated Net Worth ” means shareholders’ equity or net worth of the Borrower and its subsidiaries on a consolidated basis determined in accordance with GAAP.

 

“ Consolidated Total Capitalization ” means the sum of Consolidated Funded Debt plus Consolidated Net Worth.

 

“ Credit Documents ” means a collective reference to this Credit Agreement, the Notes, the Fee Letter and all other related agreements and documents issued or delivered hereunder or thereunder or pursuant hereto or thereto.

 

“ Debt Rating ” shall have the meaning assigned to such term in the definition of “Applicable Rate”.

 

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

 

“ Default Rate ” means when used with respect to Loans, an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per

 

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annum; provided , however , that with respect to a LIBOR Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in each case to the fullest extent permitted by applicable laws.

 

“ Defaulting Lender ” means, at any time, any Lender that, at such time, (i) has failed to make a Loan or fund a participation interest required pursuant to the terms of this Credit Agreement, (ii) has failed to pay to the Administrative Agent or any Lender an amount owed by such Lender pursuant to the terms of the Credit Agreement or any other of the Credit Documents, or (iii) has been deemed insolvent or has become subject to a bankruptcy or insolvency proceeding or to a receiver, trustee or similar proceeding.

 

“ Determination Date ” means with respect to any Extension of Credit:

 

(a) in connection with the origination of any new Extension of Credit, the Business Day which is the earliest of the date such credit is extended, the date the rate is set or the date the bid is accepted, as applicable;

 

(b) in connection with any extension or conversion or continuation of an existing Loan, the last Business Day of each month or the Business Day which is the earlier of the date such advance is extended, converted or continued, and the date the rate is set, as applicable, in connection with any extension, conversion or continuation; or

 

(c) the date of any reduction of the Revolving Committed Amount pursuant to the terms of Section 3.4 ; and

 

in addition to the foregoing, an additional date each month to be determined by the Administrative Agent. For purposes of determining availability hereunder, the rate of exchange for Available Foreign Currency shall be the Spot Rate.

 

“ Dollar Amount ” means (a) with respect to Dollars or an amount denominated in Dollars, such amount and (b) with respect to an amount of any Foreign Currency or an amount denominated in such Foreign Currency, the Dollar Equivalent of such amount on the applicable date contemplated in this Credit Agreement.

 

“ Dollar Equivalent ” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Foreign Currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date and inclusive of all reasonable related costs of conversion, if any, that are actually incurred) for the purchase of Dollars with such Foreign Currency.

 

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

 

“ Effective Date ” means the date hereof.

 

“ EMU ” means Economic and Monetary Union as contemplated in the Treaty on European Union.

 

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“ EMU Legislation ” means legislative measures of the European Council (including without limitation European Council regulations) for the introduction of, changeover to or operation of a single or unified European currency (whether known as the Euro or otherwise), being in part the implementation of the third stage of EMU.

 

“ Environmental Laws ” means any and all applicable foreign, federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements or any Governmental Authority or other Requirement of Law regulating, relating to or imposing liability or standards of conduct concerning protection of human health or the environment, as now or may at any time be in effect during the term of this Credit Agreement.

 

“ 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, whether or not incorporated, which is under common control with the Borrower within the meaning of Section 4001(a)(14) of ERISA, or is a member of a group which includes the Borrower 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 Single Employer Plan or Multiple Employer Plan, the occurrence of a Reportable Event; (ii) the withdrawal by the Borrower, any Subsidiary of the Borrower 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 could reasonably be expected to 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 the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate from a Multiemployer Plan or the receipt by the Borrower, any Subsidiary or any ERISA Affiliate that a Multiemployer Plan is in reorganization; (vii) the conditions for imposition of a lien under Section 302(f) of ERISA exist with respect to any Plan; or (vii) the adoption of an amendment to any Plan requiring the provision of security to such Plan pursuant to Section 307 of ERISA.

 

“ Euro ” means the single currency of Participating Member States of the European Union.

 

“ Euro Unit ” means the currency unit of the Euro.

 

“ Event of Default ” means such term as defined in Section 8.1 .

 

“ Extension of Credit ” means, as to any Lender, the making of a Loan by such Lender.

 

“ Facility Fee ” shall have the meaning assigned to such term in Section 3.5 .

 

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“ Fee Letter ” means that certain letter agreement, dated as of September 22, 2004, between the Administrative Agent, Banc of America Securities LLC and the Borrower, as amended, modified, supplemented or replaced from time to time.

 

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

 

“ Federal Funds Rate ” means, for any day, the rate of interest per annum (rounded upwards, if necessary, to the nearest whole multiple of 1/100 of 1%) 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 of New York 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 and (B) if no such rate is so published on such next preceding Business Day, the Federal Funds Rate for such day shall be the average rate quoted to the Administrative Agent on such day on such transactions as reasonably determined by the Administrative Agent.

 

“ Foreign Currency ” means Available Foreign Currency.

 

“ Foreign Currencies Committed Amount ” shall have the meaning assigned to such term in Section 2.1(a) .

 

“ Foreign Currency Equivalent ” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Available Foreign Currency as determined by the Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Available Foreign Currency with Dollars.

 

“ Foreign Currency Loan ” means any Loan denominated in an Available Foreign Currency.

 

“ Funded Debt ” means, with respect to any Person, without duplication, (i) all indebtedness for borrowed money, (ii) all obligations evidenced by bonds, debentures, notes or similar instruments, or upon which interest payments are customarily made, (iii) all obligations to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business, (iv) the Attributed Principal Amount of Capital Leases, Securitization Transactions and Synthetic Leases, (v) all Funded Debt of any partnership or joint venture, but only to the extent (A) of recourse to such Person for payment thereof or (B) that, for purposes of Section 6.7 hereof, such Funded Debt of such partnership or joint venture is consolidated, in accordance with GAAP, in the financial statements of the Consolidated Group, (vi) the maximum amount of standby letters of credit issued or bankers’ acceptance facilities created for the account of such Person, and (vii) Support Obligations in respect of Funded Debt of another Person in connection with, related to or supporting Funded Debt or issued as performance-based letters of credit (other than trade letters of credit).

 

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

 

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“ Government Acts ” has the meaning set forth in Section 3.20 .

 

“ Governmental Authority ” means any Federal, state, local or foreign court or governmental agency, authority, commission, instrumentality or regulatory body.

 

“ Interest Payment Date ” means (a) as to any Base Rate Loan, the last day of each March, June, September and December, the date of repayment of principal of such Loan and the later of (i) the Termination Date and (ii) if applicable, the extended repayment date set forth in Section 2.1(g) and (b) as to any LIBOR Loan or Competitive Loan, the last day of each Interest Period for such Loan, the date of repayment of principal of such Loan and on the later of (i) the Termination Date and (ii) if applicable, the extended repayment date set forth in Section 2.1(g) , and in addition where the applicable Interest Period is more than three months, then also on the date three months from the beginning of the Interest Period, and each three months thereafter. If an Interest Payment Date falls on a date which is not a Business Day, such Interest Payment Date shall be deemed to be the next succeeding Business Day, except that in the case of LIBOR Loans where the next succeeding Business Day falls in the next succeeding calendar month, then on the next preceding Business Day.

 

“ Interest Period ” means, (a) as to any LIBOR Loan, a period of one, two, three or six month’s duration, as the Borrower may elect, commencing in each case, on the date of the borrowing (including conversions, extensions and renewals) and (b) as to any Competitive Loan, a period of not less than seven nor more than 180 days’ duration, as the Borrower may request and the Competitive Lender may agree in accordance with the provisions of Section 2.2 ; provided , however , (i) 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 in the case of LIBOR Loans where the next succeeding Business Day falls in the next succeeding calendar month, then on the next preceding Business Day), (ii) no Interest Period shall extend beyond the later of (x) the Termination Date and (y) if applicable, the extended repayment date set forth in Section 2. 1(g) , and (iii) in the case of LIBOR Loans, 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 day of such calendar month.

 

“ Investment ” means all investments, in cash or by delivery of property made, directly or indirectly in, to or from any Person, whether by acquisition of shares of capital stock or other equity interest, property, assets, indebtedness or other obligations or securities or by loan advance, capital contribution or otherwise.

 

“ Joint Ventures ” means (i) those entities listed on Schedule 1.1(b) and (ii) any other non-public Subsidiaries in which the Borrower, directly or indirectly, owns and controls less than 80% of the capital stock or other equity interest having ordinary voting power to elect directors or other managers of such Subsidiary and where the remaining ownership and control of such Subsidiary is held by an independent entity with whom the Borrower, or one of its Subsidiaries, is engaged in a business venture.

 

“ Lenders ” means each of the Persons identified as a “Lender” on the signature pages hereto, and their successors and assigns.

 

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“ LIBOR Loan ” means any Loan bearing interest at a rate determined by reference to the LIBOR Rate.

 

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

 

 

Where,

 

“ LIBOR Base Rate ” means, for any Interest Period with respect to a LIBOR Loan, 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 “LIBOR 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 LIBOR 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.

 

“ LIBOR Reserve Percentage ” means for any day, that percentage (expressed as a decimal) which is in effect from time to time under Regulation D of the Board of Governors of the Federal Reserve System (or other applicable authority or any successor thereof), as such regulation may be amended from time to time or any successor regulation, as the maximum reserve requirement (including, without limitation, any basic, supplemental, emergency, special, or marginal reserves) applicable with respect to eurocurrency liabilities as that term is defined in Regulation D (or against any other category of liabilities that includes deposits by reference to which the interest rate of LIBOR Loans is determined), whether or not Lender has any eurocurrency liabilities subject to such reserve requirement at that time. LIBOR Loans shall be deemed to constitute eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credits for proration, exceptions or offsets that may be available from time to time to a Lender. The LIBOR Rate shall be adjusted automatically on and as of the effective date of any change in the LIBOR Reserve Percentage.

 

“ 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 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).

 

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“ Loan ” or “ Loans ” means the Revolving Loans and/or Competitive Loans, as well as any term loan arising under Section 2.1(g) .

 

“ Material Adverse Effect ” means a material adverse effect on the business, operations, property or financial condition of the Borrower and its Subsidiaries taken as a whole.

 

“ Materials of Environmental Concern ” shall mean any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products or any hazardous or toxic substances, materials, or wastes, defined or regulated as such in or under any Environmental Law, including, without limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.

 

“ Moody’s ” 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 the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate and at least one employer other than the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate are contributing sponsors.

 

“ Multi-Year Credit Agreement ” means that Multi-Year Revolving Credit Agreement dated as of October 4, 2002, as amended and modified, among the Borrower, the Lenders identified therein and Wachovia Bank, National Association, as Administrative Agent.

 

“ National Currency Unit ” means a fraction or multiple of one Euro Unit expressed in units of the former national currency of a Participating Member State.

 

“ Non-Excluded Taxes ” means such term as is defined in Section 3.13 .

 

“ Note ” or “ Notes ” means any Revolving Note.

 

“ Notice of Borrowing ” means a written notice of borrowing in substantially the form of Schedule 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 Schedule 3.2 , as required by Section 3.2 .

 

“ Participating Member State ” means each country so described in any EMU Legislation.

 

“ Participation Interest ” means the purchase by a Lender of a participation in Loans as provided in Section 3.16 .

 

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

 

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

 

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“ Plan ” means any employee benefit plan (as defined in Section 3(3) of ERISA) which is covered by ERISA and with respect to which the Borrower, any Subsidiary of the Borrower 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.

 

“ Prime Rate ” means the rate of interest per annum publicly announced from time to time by Bank of America as its prime rate in effect at its principal office in Charlotte, North Carolina, with each change in the Prime Rate being effective on the date such change is publicly announced as effective (it being understood and agreed that the Prime Rate is a reference rate used by Bank of America in determining interest rates on certain loans and is not intended to be the lowest rate of interest charged on any extension of credit by Bank of America to any debtor).

 

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

 

“ Proposed Lender ” means such term as defined in Section 3.12 .

 

“ Register ” shall have the meaning given such term in Section 10.3(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.

 

“ 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.

 

“ Requesting Lender ” shall have the meaning assigned to such term in Section 3.12 .

 

“ Required Lenders ” means, at any time, Lenders having more than fifty percent (50%) of the Revolving Commitment, or if the Revolving Commitments have been terminated, Lenders having more than fifty percent (50%) of the aggregate principal Dollar Amount (determined as of the most recent Determination Date) of Loans outstanding (taking into account in each case Participation Interests or obligation to participate therein); provided that the Revolving Commitment of, and outstanding principal Dollar Amount (determined as of the most recent Determination Date) of Loans (taking into account Participation Interests therein) owing to, a Defaulting Lender shall be excluded for purposes hereof in making a determination of Required Lenders.

 

“ 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 (whether statutory or common), treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or to which any of its property is subject.

 

“ Responsible Officer ” means the Chief Executive Officer, President, Chief Financial Officer, the Controller, any Vice President and the Treasurer of the Borrower.

 

“ Revaluation Date ” means each of the following: (a) each date of a making of a LIBOR Loan denominated in an Available Foreign Currency, (b) each date of a continuation of a LIBOR

 

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Loan denominated in an Available Foreign Currency; and (c) such additional dates as the Administrative Agent or the Required Lenders shall specify.

 

“ Revolving Commitment ” means, with respect to each Lender, the commitment of such Lender to make Revolving Loans in an aggregate principal Dollar Amount at any time outstanding of up to such Lender’s Revolving Committed Amount as specified in Schedule 2.1(a) , as such amount may be reduced from time to time in accordance with the provisions hereof.

 

“ Revolving Commitment Percentage ” means, for each Lender, a fraction (expressed as a decimal) the numerator of which is the Revolving Commitment of such Lender at such time and the denominator of which is the Aggregate Revolving Committed Amount at such time. The initial Revolving Commitment Percentages are set out on Schedule 2.1 (a) .

 

“ Revolving Committed Amount ” means, collectively, the aggregate amount of all of the Revolving Commitments and, individually, the amount of each Lender’s Revolving Commitment as specified in Schedule 2.1(a) .

 

“ 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 and Competitive Loans in substantially the form attached as Schedule 2.1 (e) , individually or collectively, as appropriate, as such promissory notes may be amended, modified, supplemented, extended, renewed or replaced from time to time.

 

“ S&P ” 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.

 

“ Securitization Transaction ” means any financing transaction or series of financing transactions pursuant to which a member of the Consolidated Group may sell, convey or otherwise transfer, or grant a security interest in, accounts, payment receivables, rights to future lease payments or residuals or similar rights to payment (the “ securitization receivables ”) to a special purpose subsidiary or affiliate (a “ securitization subsidiary ”) or any other Person.

 

“ 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.

 

“ Spot Rate ” means the rate quoted by Bank of America as the spot rate for the applicable currency for the purchase by Bank of America of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m., Charlotte, North Carolina time, on the date two Business Days prior to the date as of which the foreign exchange computation is made.

 

“ Subsidiary ” means, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power to elect a majority of the directors or other managers of such corporation, partnership, limited liability company or other entity (irrespective of whether or not at the time,

 

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any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) are at the time owned by such Person directly or indirectly through Subsidiaries. Unless otherwise identified, “Subsidiary” or “Subsidiaries” shall mean Subsidiaries of the Borrower.

 

“ Support 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, (i) to purchase any such indebtedness or any Property constituting security therefor, (ii) to advance or provide funds or other support for the payment or purchase of any such indebtedness or to maintain working capital, solvency or other balance sheet condition of such other Person (including without limitation keep well agreements, maintenance agreements, comfort letters or similar agreements or arrangements) for the benefit of any holder of indebtedness of such other Person, (iii) to lease or purchase Property, securities or services primarily for the purpose of assuring the holder of such indebtedness, or (iv) to otherwise assure or hold harmless the holder of such indebtedness against loss in respect thereof. The amount of any Support 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 Support Obligation is made.

 

“ Synthetic Lease ” means any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product where the transaction is considered borrowed money indebtedness for tax purposes, but is classified as a operating lease under GAAP.

 

“ TARGET ” means the Trans-European Automated Real-time Gross settlement Express Transfer system.

 

“ TARGET Business Day ” means a day when TARGET is scheduled to be open for business.

 

“ Termination Date ” means the date 364 days following the Effective Date.

 

“ Treaty on European Union ” means the Treaty of Rome of March 25, 1957, as amended by the Single European Act 1986 and the Maastricht Treaty (which was signed at Maastricht on February 1, 1992 and came into force on November 1, 1993), as amended from time to time.

 

“ Utilization Fee ” shall have the meaning assigned to such term in Section 3.5(d) .

 

“ Utilization Period ” means each calendar quarter, except that the initial Utilization Period shall commence on the Effective Date and the final Utilization Period shall end on the Termination Date.

 

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1.2 Computation of Time Periods and Dollar Equivalents .

 

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”.

 

References herein to minimum Dollar Amounts and integral multiples stated in Dollars, where they shall also be applicable to Foreign Currency, shall be deemed to refer to approximate Foreign Currency Equivalents.

 

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 6.1 hereof (or, prior to the delivery of the first financial statements pursuant to Section 6.1 hereof, consistent with the annual audited financial statements referenced in Section 5.1(a) hereof); provided , however , if (a) the Borrower 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 30 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 Borrower to the Lenders as to which no such objection shall have been made.

 

1.4 Exchange Rates; Currency Equivalents .

 

(a) The Administrative Agent shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of Extensions of Credit and amounts outstanding hereunder denominated in Available Foreign Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered by the Borrower hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of any currency for purposes of the Credit Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent.

 

(b) Wherever in this Credit Agreement in connection with an Extension of Credit, conversion, continuation or prepayment of a Loan, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Extension of Credit or Loan is denominated in an Available Foreign Currency, such amount shall be the relevant Foreign Currency Equivalent of such Dollar amount (rounded to the nearest 1,000 units of such Available Foreign Currency), as determined by the Administrative Agent.

 

1.5 Redenomination of Certain Available Foreign Currencies .

 

(a) Each obligation of the Borrower to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful

 

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currency after the date hereof shall be redenominated into Euro at the time of such adoption (in accordance with the EMU Legislation). If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Credit Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency; provided that if any Extension of Credit in the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such Extension of Credit, at the end of the then current Interest Period.

 

(b) Each provision of this Credit Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.

 

1.6 Times of Day . Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

 

ARTICLE II

 

CREDIT FACILITIES

 

2.1 Revolving Loans .

 

(a) Revolving Commitment . During the Commitment Period, subject to the terms and conditions hereof, each Lender severally agrees to make revolving credit loans in Dollars and Available Foreign Currencies (the “ Revolving Loans ”) to the Borrower from time to time in the amount of such Lender’s Revolving Commitment Percentage of such Revolving Loans for the purposes hereinafter set forth; provided that (i) with regard to the Lenders collectively, the aggregate principal Dollar Amount (determined as of the most recent Determination Date) of Loans outstanding at any time shall not exceed the Aggregate Revolving Committed Amount, (ii) with regard to each Lender individually, the aggregate principal Dollar Amount (determined as of the most recent Determination Date) of such Lender’s Revolving Commitment Percentage of Revolving Loans outstanding at any time shall not exceed such Lender’s Revolving Committed Amount, and (iii) the aggregate principal Dollar Amount (determined as of the most recent Determination Date) of Loans in Available Foreign Currencies shall not at any time exceed EIGHTY-FIVE MILLION DOLLARS ($85,000,000) (the “ Foreign Currencies Committed Amount ”). Revolving Loans may consist of Base Rate Loans or LIBOR Loans, or a combination thereof, as the Borrower may request, and Revolving Loans denominated in Available Foreign Currencies shall consist solely of LIBOR Loans, and 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 telephone notice promptly confirmed in writing) to the Administrative Agent not later than 11:00 A.M. (Charlotte, North Carolina time) on the Business Day of the requested borrowing in the case of Base Rate Loans denominated in

 

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Dollars, on the third Business Day prior to the date of the requested borrowing in the case of LIBOR Loans denominated in Dollars, and on the fifth Business Day prior to the date of the requested borrowing in the case of all Loans denominated in Available Foreign Currencies. 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 currency and aggregate principal amount to be borrowed, and (D) whether the borrowing shall be comprised of Base Rate Loans, LIBOR Loans or a combination thereof, and if LIBOR 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 LIBOR 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, in the case of Revolving Loans denominated in Dollars, or a LIBOR Loan in any other case. The Administrative Agent shall give notice to each 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 Revolving Loan shall be in a minimum aggregate principal Dollar Amount of $5,000,000, in the case of LIBOR Loans, or $1,000,000 (or the remaining Revolving Committed Amount, if less), in the case of Base Rate Loans, and integral multiples of $1,000,000 in excess thereof.

 

(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 3.17(b) . or in such other manner as the Administrative Agent may specify in writing, by 12:00 noon (Charlotte, North Carolina time or local time where the deposit is to be made in Available Foreign Currency) on the date specified in the applicable Notice of Borrowing 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 designated by the Borrower 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 earlier of (i) the Termination Date and (ii) the date that the Loans are accelerated pursuant to Section 8.2 . Additionally, Revolving Loan payments may be due in part in accordance with Section 3.3(b) .

 

(d) Interest . Subject to the provisions of Section 3.1 :

 

(i) Base Rate Loans . During such periods as Revolving Loans shall comprise in whole or in part Base Rate Loans, such Base Rate Loans shall bear interest at a per annum rate equal to the Base Rate plus the Applicable Rate;

 

(ii) LIBOR Loans . During such periods as Revolving Loans shall comprise in whole or in part LIBOR Loans, such LIBOR Loans shall bear interest at a per annum rate equal to the LIBOR Rate plus the Applicable Rate.

 

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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 shall, at the option of each Lender, be evidenced by a duly executed Revolving Note in favor of each Lender in the form of Schedule 2.1(e) attached hereto.

 

(f) Maximum Number of LIBOR Loans . The Borrower will be limited to a maximum number of eight (8) LIBOR Loans outstanding at any time. For purposes hereof, LIBOR Loans with separate or different Interest Periods will be considered as separate LIBOR Loans even if their Interest Periods expire on the same date.

 

(g) Term Out Option . The Borrower may convert the outstanding Revolving Loans to a term loan effective on the Termination Date, which shall be due and payable in full on the date that is 364 days subsequent to such Termination Date; provided that (i) the Borrower shall have delivered to the Administrative Agent a written notice electing such conversion at least thirty (30) days prior to the Termination Date and (ii) no Event of Default exists and is continuing on the date the notice is provided or on the Termination Date. Initially, the Applicable Rate on Loans outstanding during the period of the term loan as set forth herein shall be determined based upon the Debt Rating on the Termination Date plus the Utilization Fee. Thereafter, the Applicable Rate shall be determined and adjusted quarterly on the date five (5) Business Days after the next Rate Determination Date based on the Debt Rating in effect on the last day of the preceding calendar quarter and shall be effective until the next succeeding Rate Determination Date. A Facility Fee will be payable during such period. No additional borrowings may be made during the period of the term loan and any amounts repaid on the Revolving Loans outstanding during such period may not be reborrowed. The Administrative Agent shall promptly forward any written notice received from the Borrower pursuant to this subsection to the Lenders.

 

2.2 Competitive Loan Subfacility .

 

(a) Competitive Loans . Subject to the terms and conditions hereof and in reliance upon the representations and warranties set forth herein, the Borrower may, during the Commitment Period, request and each Lender may, in its sole discretion, agree to make, Competitive Loans in Dollars and Available Foreign Currencies to the Borrower; provided , however , that (i) the aggregate principal Dollar Amount (determined as of the most recent Determination Date) of outstanding Competitive Loans shall not at any time exceed SIXTY-FIVE MILLION DOLLARS ($65,000,000) (the “ Competitive Loan Maximum Amount ”), and (ii) with regard to the Lenders collectively, the aggregate principal Dollar Amount (determined as of the most recent Determination Date) of Loans outstanding at any time shall not exceed the Aggregate Revolving Committed Amount. Each Competitive Loan shall be in an aggregate principal Dollar Amount not less than $5,000,000 and integral multiples of $1,000,000 in excess thereof (or the remaining portion of the Competitive Loan Maximum Amount, if less).

 

(b) Competitive Bid Requests . The Borrower may solicit Competitive Bids by delivery of a Competitive Bid Request substantially in the form of Schedule 2. 2(b)-1 to the Administrative Agent by 12:00 Noon (Charlotte, North Carolina time) on a Business Day not less than three (3) nor more than four (4) Business Days prior to the date of a requested

 

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Competitive Loan borrowing. A Competitive Bid Request shall specify (i) the date of the requested Competitive Loan borrowing (which shall be a Business Day), (ii) the currency and amount of the requested Competitive Loan borrowing and (iii) the applicable Interest Periods requested. The Administrative Agent shall, promptly following its receipt of a Competitive Bid Request under this subsection (b) , notify the affected Lenders of its receipt and the contents thereof and invite the Lenders to submit Competitive Bids in response thereto. The form of such notice is provided in Schedule 2.2(b)-2 . No more than three (3) Competitive Bid Requests (i.e., the Borrower may request Competitive Bids for no more than three (3) different Interest Periods at any one time) shall be submitted at any one time and Competitive Bid Requests may be made no more frequently than once every five (5) Business Days.

 

(c) Competitive Bid Procedure . Each Lender may, in its sole discretion, make one or more Competitive Bids to the Borrower in response to a Competitive Bid Request. Each Competitive Bid must be received by the Administrative Agent not later than 10:00 A.M. (Charlotte, North Carolina time) on the Business Day next succeeding the date of receipt by the Administrative Agent of the related Competitive Bid Request. A Lender may offer to make all or part of the requested Competitive Loan borrowing and may submit multiple Competitive Bids in response to a Competitive Bid Request. The Competitive Bid shall specify (i) the particular Competitive Bid Request as to which the Competitive Bid is submitted, (ii) the currency and the minimum (which shall be not less than $1,000,000 and integral multiples of $500,000 in excess thereof) and maximum principal Dollar Amounts of the requested Competitive Loan or Loans as to which the Lender is willing to make, and (iii) the applicable interest rate or rates and Interest Period or Periods therefor. The form of such Competitive Bid is provided in Schedule 2.2(c) . A Competitive Bid submitted by a Lender in accordance with the provisions hereof shall be irrevocable. The Administrative Agent shall promptly notify, but in no event later than 10:30 A.M. (Charlotte, North Carolina time), the Borrower of all Competitive Bids made and the terms thereof. The Administrative Agent shall send a copy of each of the Competitive Bids to the Borrower for its records as soon as practicable (and in any event within two (2) Business Days following receipt of the bids).

 

(d) Submission of Competitive Bids by Agent . If the Administrative Agent, in its capacity as a Lender, elects to submit a Competitive Bid in response to any Competitive Bid Request, it shall submit such Competitive Bid directly to the Borrower one-half of an hour earlier than the latest time at which the other Lenders are required to submit their Competitive Bids to the Administrative Agent in response to such Competitive Bid Request pursuant to subsection (c) above.

 

(e) Acceptance of Competitive Bids . The Borrower may, in its sole and absolute discretion, subject only to the provisions of this subsection (e) , accept or refuse any Competitive Bid offered to it. To accept a Competitive Bid, the Borrower shall give telephone notification, which shall be binding, by 11:30 A.M. (Charlotte, North Carolina time) and confirmed with written notification substantially in the form of Schedule 2.2(e) of its acceptance of any or all such Competitive Bids to the Administrative Agent by 1:30 P.M. (Charlotte, North Carolina time) on the latest date on which notice of election to make a Competitive Bid is to be given to the Administrative Agent by the Lenders; provided , however , (i) the failure by the Borrower to give timely notice of its acceptance of a Competitive Bid shall be deemed to be a refusal thereof, (ii) the Borrower may accept Competitive Bids within any one Interest Period only in ascending order of rates, (iii) the aggregate amount of Competitive Bids accepted by the Borrower shall not

 

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exceed the principal amount specified in the Competitive Bid Request, (iv) the Borrower may accept a portion of a Competitive Bid in the event, and to the extent, acceptance of the entire amount thereof would cause the Borrower to exceed the principal amount specified in the Competitive Bid Request, subject however to the minimum amounts provided herein (and provided that where two or more Lenders submit such a Competitive Bid at the same Competitive Bid Rate and for the same Interest Period, then pro rata between or among such Lenders) and (v) no bid shall be accepted for a Competitive Loan unless such Competitive Loan is in a minimum principal Dollar Amount of $1,000,000 and integral multiples of $500,000 in excess thereof, except that where a portion of a Competitive Bid is accepted in accordance with the provisions of subsection (iv) hereof, then in a minimum principal Dollar Amount of $500,000 and integral multiples of $100,000 in excess thereof (but not in any event less than the minimum amount specified in the Competitive Bid), and in calculating the pro rata allocation of acceptances of portions of multiple bids at a particular Competitive Bid Rate pursuant to subsection (iv) hereof, the amounts shall be rounded to integral multiples of $100,000 in a manner which shall be in the discretion of the Borrower. A notice of acceptance of a Competitive Bid given by the Borrower in accordance with the provisions hereof shall be irrevocable. The Administrative Agent shall, not later than 12:00 Noon (Charlotte, North Carolina time) on the date of receipt by the Administrative Agent of a notification from the Borrower of its acceptance and/or refusal of Competitive Bids, notify each affected Lender of its receipt and the contents thereof. Upon its receipt from the Administrative Agent of notification of the Borrower’s acceptance of its Competitive Bid in accordance with the terms of this subsection (e) , each successful bidding Lender will thereupon become bound, subject to the other applicable conditions hereof, to make the Competitive Loan in respect of which its bid has been accepted.

 

(f) Funding of Competitive Loans . Each Lender which is to make a Competitive Loan shall make its Competitive Loan borrowing available to the Administrative Agent for the account of the Borrower at the office of the Administrative Agent specified in Schedule 10.1 , or at such other office as the Administrative Agent may designate in writing, by 1:30 P.M. (Charlotte, North Carolina time) on the date specified in the Competitive Bid Request in funds immediately available to the Administrative Agent. Such borrowing will then be made available to the Borrower by crediting the account designated by the Borrower.

 

(g) Maturity of Competitive Loans . Each Competitive Loan shall mature and be due and payable in full on the last day of the Interest Period applicable thereto, unless accelerated sooner pursuant to Section 8.2 . Unless the Borrower shall give notice to the Administrative Agent otherwise, the Borrower shall be deemed to have requested a Revolving Loan borrowing in the principal amount and currency of the maturing Competitive Loan, the proceeds of which will be used to repay such Competitive Loan.

 

(h) Interest on Competitive Loans . Subject to the provisions of Section 3.1 , Competitive Loans shall bear interest in each case at the Competitive Bid Rate applicable thereto. Interest on Competitive Loans shall be payable in arrears on each Interest Payment Date.

 

(i) Competitive Loan Notes . The Competitive Loans made by each Lender shall be evidenced by a Revolving Note.

 

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ARTICLE III

 

OTHER PROVISIONS RELATING TO CREDIT FACILITIES

 

3.1 Default Rate . Upon the occurrence, and during the continuance, of an Event of Default, any principal of and, to the extent permitted by law, interest on the Loans and any other amounts then due and owing hereunder or under the other Credit Documents shall, at the discretion of the Required Lenders or the Administrative Agent, bear interest, payable on demand, at a fluctuating interest rate per annum at all times equal to the Default Rate.

 

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 , that (i) except as provided in Sections 3.8 , 3.9 and 3.11 , LIBOR Loans may be converted into Base Rate Loans only on the last day of the Interest Period applicable thereto, (ii) any LIBOR loan may be extended, and any Base Rate Loan may be converted to a LIBOR Loan only if the conditions in Section 4.2 have been satisfied, (iii) Loans extended as, or converted into, LIBOR 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) , and (iv) any request for extension of or conversion to a LIBOR 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 telephone notice promptly confirmed in writing) to the Administrative Agent prior to 11:00 A.M. (Charlotte, North Carolina time) on the Business Day of, in the case of the conversion of a LIBOR Loan into a Base Rate Loan, and on the third Business Day prior to, in the case of the extension of a LIBOR Loan as, or conversion of a Base Rate Loan into, a LIBOR Loan, the date of the proposed extension or conversion, specifying (A) the date of the proposed extension or conversion, (B) the Loans to be so extended or converted, (C) the types of Loans into which such Loans are to be converted and, if appropriate, (D) 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 (a) through (d) of Section 4.2 . In the event the Borrower fails to request extension of or conversion to any LIBOR Loan in accordance with this Section, or any such conversion or extension is not permitted or required by this Section, then (i) in the case of a LIBOR Loan denominated in Dollars, such LIBOR Loan shall be continued as a LIBOR Loan denominated in Dollars at the end of the Interest Period applicable thereto for an Interest Period of one month, and (ii) in the case of LIBOR Loans in an Available Foreign Currency, such LIBOR Loan shall be automatically continued as a LIBOR Loan in the same Available Foreign Currency, for an Interest Period of one month. 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 . Loans may be repaid in whole or in part without premium or penalty; provided that (i) LIBOR Loans and Competitive Loans may be prepaid only upon three (3) Business Days’ prior written notice to the Administrative Agent, and Base Rate Loans may be prepaid only upon at least one (1) Business Day’s prior written notice to the Administrative Agent, (ii) prepayments of LIBOR Loans must be accompanied by payment of

 

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any amounts owing under Section 3.14 , and (iii) partial prepayments shall be in minimum principal Dollar Amounts of $5,000,000, and in integral multiples of $1,000,000 in excess thereof.

 

(b) Mandatory Prepayments . If at any time, (A) the aggregate principal Dollar Amount (determined as of the most recent Determination Date) of Loans shall exceed the Aggregate Revolving Committed Amount, (B) the aggregate principal Dollar Amount (determined as of the most recent Determination Date) of Loans in Available Foreign Currencies shall exceed the Foreign Currencies Committed Amount or (C) the aggregate principal Dollar Amount (determined as of the most recent Determination Date) of Competitive Loans shall exceed the Competitive Loan Maximum Amount, the Borrower shall immediately make payment on the Loans in an amount sufficient to eliminate such excess amount.

 

(c) Application of Mandatory Repayments . Mandatory prepayments made pursuant to Section 3.3(b) shall be applied first to Revolving Loans which are Base Rate Loans, and then to Revolving Loans which are LIBOR Loans in direct order of Interest Period maturities, and then (after all Revolving Loans have been repaid) to Competitive Loans in direct order of Interest Period maturities. All mandatory prepayments made pursuant to Section 3.3(b) shall be subject to Section 3.14 and be accompanied by interest on the principal amount prepaid through the date of prepayment. Amounts prepaid hereunder may be reborrowed in accordance with the provisions hereof.

 

3.4 Termination and Reduction of the Revolving Commitment .

 

(a) Voluntary Reductions . The Revolving Commitments may be terminated or permanently reduced by the Borrower in whole or in part upon three (3) Business Days’ prior written notice to the Administrative Agent, provided that (i) after giving effect to any voluntary reduction, the aggregate principal Dollar Amount (determined as of the most recent Determination Date) of Loans outstanding shall not exceed the Aggregate Revolving Committed Amount, as reduced, and (ii) partial reductions shall be in minimum principal Dollar Amounts of $5,000,000, and in integral multiples of $1,000,000 in excess thereof.

 

(b) Mandatory Reduction . The Revolving Commitments hereunder shall terminate on the Termination Date.

 

3.5 Fees .

 

(a) Facility Fee . In consideration of the Revolving Commitments hereunder, the Borrower agrees to pay to the Administrative Agent for the ratable benefit of each Lender in accordance with its Applicable Rate a facility fee (the “ Facility Fee ”) equal to the Applicable Rate multiplied by the average daily Aggregate Revolving Committed Amount in effect from time to time, regardless of usage. The Facility Fee shall be payable quarterly in arrears on the 15th day following the last day of each calendar quarter for the immediately preceding quarter (or portion thereof), calculated on an actual/360-day basis, beginning with the first such date to occur after the Effective Date and ending on the later of (i) the Termination Date and (ii) if applicable, the extended repayment date set forth in Section 2.1(g) . The Facility Fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any

 

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quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.

 

(b) Competitive Bid Request Fee . The Borrower agrees to pay to the Administrative Agent such fees (the “ Competitive Bid Request Fee ”) in connection with Competitive Bid Requests hereunder as may be agreed upon between the Borrower and the Administrative Agent. Unless otherwise agreed, the Competitive Bid Request Fee shall be paid quarterly in arrears.

 

(c) Administrative Agent’s Fees . The Borrower agrees to pay to the Administrative Agent, for its own account, an annual administrative fee and such other fees, if any, referred to in the Fee Letter (collectively, the “ Administrative Agent’s Fees ”).

 

(d) Utilization Fee . The Borrower agrees to pay to the Administrative Agent for the account of each Lender in accordance with its Revolving Commitment a utilization fee (the “ Utilization Fee ”) equal to the Applicable Rate multiplied by the average daily Loans outstanding under this Agreement when the Average Outstanding Loans for any Utilization Period equals or exceeds 50% of the average of the daily Aggregate Revolving Committed Amount for such Utilization Period. The Utilization Fee shall be due and payable quarterly in arrears on the 15 ^th day following the last day of each calendar quarter for the immediately preceding quarter (or portion thereof), calculated on an actual/360-day basis, beginning with the first such date to occur after the Effective Date. The Utilization Fee shall be calculated quarterly in arrears and if there is any change in the Applicable Rate during any quarter, the daily amount shall be computed and multiplied by the Applicable Rate for each period during which such Applicable Rate was in effect.

 

3.6 LIBOR Reserve Compensation . For so long as any Lender maintains reserves against “eurocurrency liabilities” (or any other category of liabilities which includes deposits by reference to which the interest rate on any LIBOR Loans is determined), and, as a result, the cost to such Lender of making or maintaining any of its LIBOR Loans is increased, then such Lender may require the Borrower to pay, contemporaneously with each payment of interest on such LIBOR Loans of such Lender, additional interest at a rate per annum up to but not exceeding the excess of (i) (A) the applicable LIBOR Rate divided by (B) one minus the LIBOR Reserve Percentage over (ii) the applicable LIBOR Rate. Any Lender wishing to require payment of such additional interest (x) shall so notify the Borrower and the Administrative Agent, in which case such additional interest on the LIBOR Loans of such Lender shall be payable to such Lender at the place indicated in such notice with respect to each Interest Period commencing at least three (3) Business Days after the giving of such notice and (y) shall furnish to the Borrower at least five (5) Business Days prior to each date on which interest is payable on the LIBOR Loans a certificate setting forth the amount to which such Lender is then entitled under this Section 3.6 (which shall be consistent with such Lender’s good faith estimate of the level at which the related reserves are maintained by it). Each such certificate shall be accompanied by such information as the Borrower may reasonably request as to the computation set forth therein.

 

3.7 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

 

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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. Such Lender will, upon request, provide a certificate in reasonable detail as to the amount of such increased cost or reduction in amount received and method of calculation.

 

3.8 Unavailability . In the event, and on each occasion, that on the day two (2) Business Days prior to the commencement of any Interest Period for a LIBOR Loan of any amount, Interest Period or currency, the Administrative Agent shall have determined or shall have been notified by the Required Lenders (a) that deposits in the relevant amount in the relevant currency and for the relevant Interest Period are not available in the relevant market to any Lender, or that reasonable means do not exist for ascertaining the LIBOR Rate for any such Loan, or (b) that the rates at which such deposits are being offered will not adequately and fairly reflect the cost to any Lender of making or maintaining its LIBOR Loan during such Interest Period, the Administrative Agent shall promptly give written or telecopy notice of such determination to the Borrower and the Lenders. In the event of any such determination, until the Administrative Agent shall have advised the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, any request by the Borrower for a LIBOR Loan of the affected amount, Interest Period or currency, or a conversion to or continuation of a LIBOR Loan of the affected amount, Interest Period or currency shall be deemed rescinded. If the Administrative Agent at any time determines that: (i) the euro has ceased to be utilized as the basic accounting unit of the European Community; (ii) for reasons affecting the market in euros generally, euros are not freely traded between banks internationally; or (iii) it is illegal, impossible or impracticable for payments to be made hereunder in euro, then the Administrative Agent may, in its discretion declare (such declaration to be binding on all the parties hereto) that any payment made or to be made thereafter which, but for this provision, would have been payable in the euro shall be made in a component currency of the euro or Dollars (as selected by the Administrative Agent (the “ Selected Currency ”‘) and the amount to be so paid shall be calculated on the basis of the equivalent of the euro in the Selected Currency). Each determination by the Administrative Agent hereunder shall be conclusive absent manifest error.

 

3.9 Illegality .

 

(a) Notwithstanding any other provision herein, if (i) the adoption of or any change in any Requirement of Law or in the interpretation or application thereof occurring after the Effective Date shall make it unlawful for any Lender to make or maintain LIBOR Loans as contemplated by this Credit Agreement, or (ii) there shall have occurred any change in national or international financial, political or economic conditions (including the imposition of or any change in exchange controls) or currency exchange rates which would make it unlawful or impossible for any Lender to make Loans denominated in any Available Foreign Currency to the Borrower, as contemplated by this Credit Agreement, then such Lender, together with Lenders

 

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giving notice under Sections 3.8 and 3.10 , shall be an “ Affected Lender ” and by written notice to the Borrower and to the Administrative Agent:

 

(i) such Lender may declare that LIBOR Loans (in the affected currency or currencies) will not thereafter (for the duration of such unlawfulness or impossibility) be made by such Lender hereunder, whereupon any request for a LIBOR Loan (in the affected currency or currencies) shall, as to such Lender only (A) if such Loan is not a Foreign Currency Loan, be deemed a request for a Base Rate Loan (unless it should also be illegal for the Affected Lender to provide a Base Rate Loan, in which case such Loan shall bear interest at a commensurate rate to be agreed upon by the Administrative Agent and the Affected Lender, and so long as no Event of Default shall have occurred and be continuing, the Borrower), unless such declaration shall be subsequently withdrawn and (B) if such Loan is a Foreign Currency Loan, be deemed to have been withdrawn, unless such declaration shall be subsequently withdrawn; and

 

(ii) such Lender may require that all outstanding LIBOR Loans or Foreign Currency Loans (in the affected currency or currencies), as the case may be, made by it be (A) if such Loans are not Foreign Currency Loans, converted to Base Rate Loans, in which event all such LIBOR Loans shall be automatically converted to Base Rate Loans as of the effective date of such notice as provided in paragraph (b) below or (B) if such Loans are Foreign Currency Loans, repaid immediately, in which event all such Foreign Currency Loans (in the affected currency or currencies) shall be required to be repaid in full by the Borrower as of the effective date of such notice as provided in paragraph (b) below.

 

In the event any Lender shall exercise its rights under clauses (i) or (ii) above with respect to any Loans with are not Foreign Currency Loans, all payments and prepayments of principal which would otherwise have been applied to repay the LIBOR Loans that would have been made by such Lender or the converted LIBOR Loans of such Lender shall instead be applied to repay the Base Rate Loans made by such Lender in lieu of, or resulting from the conversion, of such LIBOR Loans.

 

(b) For purposes of this Section 3.9 . a notice to the Borrower by any Lender shall be effective as to each such Loan, if lawful, on the last day of the Interest Period currently applicable to such Loan; in all other cases such notice shall be effective on the date of receipt by the Borrower.

 

3.10 Requirements of Law . If, after the date hereof, the adoption of or any change in any Requirement of Law or in the interpretation or application thereof applicable to any Lender, or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority, in each case made subsequent to the Effective Date (or, if later, the date on which such Lender becomes a Lender):

 

(a) shall subject such Lender to any tax of any kind whatsoever with respect to any LIBOR Loans made by it or its obligation to make LIBOR Loans, or change the basis of taxation of payments to such Lender in respect thereof (except for (i) Non-Excluded Taxes covered by Section 3.13 (including Non-Excluded Taxes imposed solely by reason of any failure of such Lender to comply with its obligations under Section 3.13(b) ) and (ii) changes in taxes measured

 

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