CREDIT AGREEMENT DATED DECEMBER 2, 2005

Exhibit 99(a)

 

Execution Copy

 

REVOLVING CREDIT AGREEMENT

 

among

 

BOK FINANCIAL CORPORATION,

Borrower

 

SUNTRUST BANK,

Administrative Agent

 

and

 

THE LENDERS NAMED HEREIN,

Lenders

 

Dated as of December 2, 2005

 

SUNTRUST CAPITAL MARKETS, INC.,

as Arranger and Book Manager

TABLE OF CONTENTS

 

 

SCHEDULES AND EXHIBITS

 

REVOLVING CREDIT AGREEMENT

 

THIS REVOLVING CREDIT AGREEMENT (this “Agreement”) is entered into as of December 2, 2005, among BOK FINANCIAL CORPORATION, an Oklahoma corporation (the “ Borrower ”), the lenders from time to time party hereto (the “Lenders”), and SUNTRUST BANK as administrative agent for itself and the other Lenders (the “Administrative Agent”).

 

RECITALS

 

A. The Borrower has requested that the Lenders extend credit to the Borrower in the form of this Agreement, providing for a revolving credit facility in the aggregate principal amount of $100,000,000.

 

B. Upon and subject to the terms and conditions of this Agreement, the Lenders are willing to extend such credit to the Borrower.

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the Borrower, the Lenders and the Administrative Agent agree as follows:

 

ARTICLE 1 DEFINITIONS AND TERMS.

 

1.1 Definitions. As used herein:

 

Additional Commitment Amount is defined in Section 2.20 .

 

Additional Lender is defined in Section 2.20 .

 

Adjusted Total Assets at any time, for any Person, shall have the meaning set forth on the date hereof under applicable regulations of the Governmental Authority having primary authority over such Person on the date hereof as such regulations are applicable to such Person, or if such regulations are amended hereafter to define Adjusted Total Assets more restrictively, as set forth in such later amended regulations.

 

Administrative Agent shall have the meaning set forth in the opening paragraph hereof, and any successor Administrative Agent appointed pursuant to Article 11 .

 

Advance means a borrowing hereunder, (i) made by the Lenders on the same Borrowing Date, or (ii) converted or continued by the Lenders on the same date of conversion or continuation, consisting, in either case, of the aggregate amount of the several Loans of the same Type and, in the case of Eurodollar Loans, for the same Interest Period.

 

Affiliate of any Person means any other individual or entity who directly or indirectly controls, or is controlled by, or is under common control with, such Person, and, for purposes of this definition only, “ control, ” “ controlled by, ” and “ under common control with ” mean possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of voting securities, by contract, or otherwise). Notwithstanding the foregoing, neither the Administrative Agent nor any Lender shall be

deemed to be an Affiliate of the Borrower by reason of the relationship created hereby. Notwithstanding the foregoing, no individual or entity shall be deemed to be under common control with the Borrower or any Affiliate of the Borrower because such individual or entity is controlled by George B. Kaiser or an Affiliate of George B. Kaiser unless such individual or entity is also controlled by the Borrower or an Affiliate of the Borrower.

 

Aggregate Commitment means the aggregate of the Commitments of all the Lenders, as reduced from time to time pursuant to the terms hereof.

 

Agreement means this Revolving Credit Agreement (as the same may hereafter be amended, modified, supplemented, or restated from time to time).

 

Alternate Base Rate means, for any day, a rate of interest per annum equal to the higher of (i) the Corporate Base Rate for such day or (ii) the sum of the Federal Funds Effective Rate for such day plus  ¹ / 2 % per annum.

 

Applicable Margin means the lowest percentages set forth in the table below for the Type of Borrowing or Facility Fee (as the case may be), on any date of determination, which corresponds to the Borrower’s conformity, on any date of determination, with the ratings established by both S&P and Moody’s applicable to the Borrower’s senior, unsecured, non-credit-enhanced, long term indebtedness for borrowed money (“ Index Debt ”):

 

 

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For purposes of determining the Applicable Margin, (i) if neither Moody’s nor S&P shall have in effect a rating for Index Debt (other than by reason of the circumstances referred to in the last sentence of this definition), then both such rating agencies will be deemed to have established ratings for Index Debt in Category 4; (ii) if only one of Moody’s or S&P shall have in effect a rating of Index Debt, the Borrower and the Administrative Agent, with the consent of the Lenders, will negotiate in good faith to agree upon another rating agency to be substituted by an agreement for the rating agency which shall not have a rating in effect, and in the absence of such agreement the Applicable Margin will be determined by reference to the available rating; (iii) if the Borrower is split-rated and the ratings differential is (a) one category, the higher of the two ratings will apply, (b) two categories, the rating which falls between them shall apply or (c) three categories, the rating immediately above the lower of the two ratings shall apply; (iv) if any rating established by Moody’s or S&P shall be changed (other than as a result of a change in the rating system of either Moody’s or S&P), such change shall be effective as of the date on which such change is first announced by the rating agency making such change. If the rating system of either Moody’s or S&P shall change prior to the payment in full of the Obligation and the cancellation of all commitments to lend hereunder, the Borrower and the Administrative Agent, with the consent of the Lenders, shall negotiate in good faith to amend the references to specific ratings in this definition to reflect such changed rating system. If both Moody’s and S&P shall cease to be in the business of rating corporate debt obligations, the Borrower and the Administrative Agent, with the consent of the Lenders, shall negotiate in good faith to agree upon a substitute rating agency and to amend the references to specific ratings in this definition to reflect the ratings used by such substitute rating agency. The rating in effect on any date is that in effect at the close of business on such date.

 

Article means an article of this Agreement unless another document is specifically referenced.

 

Authorizations means all filings, recordings, and registrations with, and all validations or exemptions, approvals, orders, authorizations, consents, franchises, licenses, certificates, and permits from, any Governmental Authority.

 

Authorized Officer means any Person from time to time designated by the Borrower in writing to the Administrative Agent.

 

Bank means any state or federally chartered bank, savings association, or savings and loan association which is a Subsidiary of the Borrower, and Banks means all of them.

 

Bankers Blanket Bond shall mean the bond or bonds, and any renewals, extensions or modifications thereof, issued with respect to losses incurred by the Bank, including, without limitation, all bonds represented by Bankers Blanket Bond (also referred to as Financial Institution Bond), Standard Form No. 24, with attached riders, as revised, and Bank Employee Dishonesty Blanket Bond, Standard Form No. 28, with attached rider, as revised, both as published by the Surety Association of America.

 

Bankruptcy Code means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. § 101, et seq .).

 

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Board means the Board of Governors of the Federal Reserve System, and any successor thereto, performing the same or similar functions.

 

Borrower shall have the meaning set forth in the first paragraph of this Agreement.

 

Borrowing Date means a date on which an Advance is made hereunder.

 

Borrowing Notice is defined in Section 2.8 .

 

Business Day means (i) with respect to any borrowing, payment or rate selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on which banks generally are open in Atlanta, Georgia for the conduct of substantially all of their commercial lending activities and on which dealings in United States dollars are carried on in the interbank eurodollar market with respect to Eurodollar Advances and (ii) for all other purposes, a day (other than a Saturday or Sunday) on which banks generally are open in Atlanta, Georgia for the conduct of substantially all of their commercial lending activities.

 

Capital Lease means any capital lease or sublease which should be capitalized on a balance sheet in accordance with GAAP.

 

Change of Control means any of the following: (a) any sale, lease, exchange or other transfer (in a single transaction or a series of related transactions) of all or substantially all of the assets of the Borrower to any Person or “group” (within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder in effect on the date hereof), (b) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or “group” (within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the date hereof) of 30% or more of the outstanding shares of the voting stock of the Borrower; (c) George B. Kaiser and/or Affiliates of George B. Kaiser cease to own directly or indirectly 51% of the Voting Stock of the Borrower or (d) at any time, individuals who on the Closing Date, or if later, the date two years prior to the date of determination (the Closing Date or such later date, the “Baseline Date”), constituted 50% or more of the board of directors of the Borrower (together with any new directors whose election by the board of directors of the Borrower or whose nomination for election by the stockholders of the Borrower was approved by a vote of at least two-thirds of the directors then still in office who either were directors on the Baseline Date or whose elections or nomination for election was previously so approved) cease for any reason other than death or disability to constitute a majority of the directors then in office.

 

Closing Date means the date upon which this Agreement has been executed by the Borrower, the Lenders, and the Administrative Agent and all conditions precedent specified in Section 4.1 have been satisfied or waived.

 

Code means the Internal Revenue Code of 1986 , as amended, together with the rules and regulations promulgated thereunder.

 

Commitment means, for each Lender, the obligation of such Lender to make Loans not exceeding the amount set forth on Annex I hereto or as set forth in any Notice of Assignment

 

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relating to any assignment that has become effective pursuant to Section 13.3.2 , as such amount may be modified from time to time pursuant to the terms hereof.

 

Companies means, at any date of determination thereof, the Borrower and each of its Subsidiaries; and Company means, on any date of determination, the Borrower or any of its Subsidiaries.

 

Compliance Certificate means a certificate signed by a Responsible Officer, substantially in the form of Exhibit A.

 

Consolidated Adjusted Net Income means consolidated net earnings (after income taxes) of the Borrower and its Subsidiaries, but excluding (a) extraordinary gains, (b) gains due to sales or write-up of assets, (c) earnings of any Person newly acquired, if earned prior to acquisition, and (d) gains due to acquisitions of any securities of the Borrower or any of its Subsidiaries.

 

Consolidated Net Worth means at any time the consolidated stockholders’ equity of the Borrower and its Subsidiaries.

 

Conversion/Continuation Notice is defined in Section 2.9 .

 

Corporate Base Rate shall mean the higher of (i) the rate which SunTrust Bank announces from time to time as its prime lending rate, as in effect from time to time, or (ii) the Federal Funds rate, as in effect from time to time, plus one-half of one percent (  ¹ / 2 %) per annum (any changes in such rates to be effective as of the date of any change in such rate). The SunTrust Bank prime lending rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. SunTrust Bank may make commercial loans or other loans at rates of interest at, above, or below the SunTrust Bank prime lending rate.

 

Current Financials means, at the time of any determination thereof, the more recently delivered to the Lenders of either (a) the Financial Statements for the fiscal year ended December 31, 2004, and the nine-month period ended September 30, 2005, calculated on a consolidated basis for the Companies; or (b) the Financial Statements required to be delivered under Sections 6.3(a) or 6.3(b) , as the case may be, calculated on a consolidated basis for the Companies.

 

Debt of any Person shall mean, without duplication, (i) obligations of such Person for borrowed money, (ii) obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) obligations of such Person in respect of the deferred purchase price of property or services (other than trade payables incurred in the ordinary course of business on terms customary in the trade), (iv) obligations of such Person under any conditional sale or other title retention agreement(s) relating to property acquired by such Person, (v) capitalized lease obligations of such Person, (vi) obligations, contingent or otherwise, of such Person in respect of letters of credit, acceptances or similar extensions of credit, (vii) guaranties by such Person of the type of indebtedness described in clauses (i) through (vi) above, (viii) all indebtedness of a third party secured by any Lien on property owned by such Person, whether or not such indebtedness has been assumed by such Person, (ix) all obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any common stock of such Person, (x) off-balance sheet liability retained in connection with asset securitization programs, synthetic

 

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leases, sale and leaseback transactions or other similar obligations arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the consolidated balance sheet of such Person and its Subsidiaries and (xi) obligations under any interest rate hedge agreement or foreign exchange agreement

 

Debtor Relief Laws means the Bankruptcy Code and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, fraudulent transfer or conveyance, suspension of payments, or similar Laws from time to time in effect affecting the Rights of creditors generally.

 

Default shall have the meaning set forth in Article 7 .

 

Distribution for any Person means, with respect to any shares of any capital stock or other equity securities issued by such Person, (a) the retirement, redemption, purchase, or other acquisition for value of any such securities, (b) the declaration or payment of any dividend on or with respect to any such securities, and (c) any other payment by such Person with respect to such securities.

 

Employee Plan means an employee pension benefit plan covered by Title IV of ERISA and established or maintained by the Borrower or any ERISA Affiliate, but not including any Multi-employer Plan.

 

Environmental Law means any applicable Law that relates to (a) the condition or protection of air, groundwater, surface water, soil, or other environmental media, (b) the environment, including natural resources or any activity which affects the environment, (c) the regulation of any pollutants, contaminants, wastes, substances, and Hazardous Substances, including, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. §9601 et seq.) (“ CERCLA ”), the Clean Air Act (42 U.S.C. §7401 et seq.), the Federal Water Pollution Control Act, as amended by the Clean Water Act (33 U.S.C. §1251 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. §136 et seq.), the Emergency Planning and Community Right to Know Act of 1986 (42 U.S.C. §11001 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seq.), the National Environmental Policy Act of 1969 (42 U.S.C. §4321 et seq.), the Oil Pollution Act (33 U.S.C. §2701 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. §6901 et seq.), the Rivers and Harbors Act (33 U.S.C. §401 et seq.), the Safe Drinking Water Act (42 U.S.C. §201 and § 300f et seq.), the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and the Hazardous and Solid Waste Amendments of 1984 (42 U.S.C. §6901 et seq.), the Toxic Substances Control Act (15 U.S.C. §2601 et seq.), and analogous state and local Laws, as any of the foregoing may have been and may be amended or supplemented from time to time, and any analogous future enacted or adopted Law, or (d) the Release or threatened Release of Hazardous Substances.

 

Equity Issuance means the issuance on and after the Closing Date by the Borrower of any shares of any class of stock, warrants, or other equity interests, other than present and future shares of stock, options, or warrants issued to employees, directors, or consultants of the Borrower, or stock issued upon their exercise.

 

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ERISA means the Employee Retirement Income Security Act of 1974 , as amended, and the regulations and rulings thereunder.

 

ERISA Affiliate means any company or trade or business (whether or not incorporated) which, for purposes of Title IV of ERISA, is a member of the Borrower’s controlled group or which is under common control with the Borrower within the meaning of Section 414(b), (c), (m), or (o)  of the Code.

 

Eurodollar Advance means an Advance which, except as otherwise provided in Section 2.11 , bears interest at the applicable Eurodollar Rate.

 

Eurodollar Base Rate shall mean, for any Interest Period , the British Bankers’ Association Interest Settlement Rate for deposits in U.S. dollars for a period comparable to the Interest Period appearing on Telerate Screen Page 3750, as of 11:00 a.m. London time, on the day that is two business days prior to the Interest Period . Such rates may be adjusted for any applicable Reserve Requirements.

 

Eurodollar Loan means a Loan which, except as otherwise provided in Section 2.11 , bears interest at the applicable Eurodollar Rate.

 

Eurodollar Rate means, with respect to a Eurodollar Advance for the relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base Rate applicable to such Interest Period, divided by (b) one minus the Reserve Requirement (expressed as a decimal) applicable to such Interest Period, plus (ii) the Applicable Margin. The Eurodollar Rate shall be rounded to the next higher multiple of 1/100 of 1% if the rate is not such a multiple.

 

Excluded Taxes means, in the case of each Lender or applicable Lending Installation and the Administrative Agent, taxes imposed on its overall net income, and franchise taxes imposed on it, by (i) the jurisdiction under the laws of which such Lender or the Administrative Agent is incorporated or organized or (ii) the jurisdiction in which the Administrative Agent’s or such Lender’s principal executive office or such Lender’s applicable Lending Installation is located.

 

Exhibit refers to an exhibit to this Agreement, unless another document is specifically referenced.

 

Facility Fee shall have the meaning set forth in Section 2.5 .

 

Facility Termination Date means December 2, 2010 or any earlier date on which the Aggregate Commitment is reduced to zero or otherwise terminated pursuant to the terms hereof.

 

FDIC means the Federal Deposit Insurance Company or any successor thereto.

 

Federal Funds Effective Rate means, for any day, an interest 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 for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations at approximately 10:00 a.m. (Atlanta, Georgia time)

 

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on such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by the Administrative Agent in its sole discretion.

 

Fee Letter means that certain fee letter, dated as of September 15, 2005, executed by SunTrust Capital Markets, Inc. and SunTrust Bank and accepted by the Borrower.

 

Financial Hedge means a swap, collar, floor, cap, or other contract which is intended to reduce or eliminate the risk of fluctuations in interest rates, which Financial Hedge is entered into by the Borrower with any financial institution.

 

Financial Statements means balance sheets, statements of operations, statements of shareholders’ investments, and statements of cash flows prepared in accordance with GAAP, which statements of operations and statements of cash flows shall be in comparative form to the corresponding period of the preceding fiscal year, and which balance sheets and statements of shareholders’ investments shall be in comparative form to the prior fiscal year-end figures.

 

Floating Rate means, for any day, a rate per annum equal to the Alternate Base Rate, in each case changing when and as the Alternate Base Rate changes.

 

Floating Rate Advance means an Advance which, except as otherwise provided in Section 2.11 , bears interest at the Floating Rate.

 

Floating Rate Loan means a Loan which, except as otherwise provided in Section 2.11 , bears interest at the Floating Rate.

 

GAAP means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession), which are applicable to the circumstances as of the date hereof.

 

Governmental Authority means any (a) local, state, municipal, or federal judicial, executive, or legislative instrumentality, (b) private arbitration board or panel, (c) central bank, or (d) the Board, the FDIC, and applicable state banking authorities, and the OCC.

 

Hazardous Substance means (a) any substance that is designated, defined, or classified as a hazardous waste, hazardous material, pollutant, contaminant, or toxic or hazardous substance under any Environmental Law, including without limitation, any hazardous substance within the meaning of Section 101(14) of CERCLA, (b) petroleum, oil, gasoline, natural gas, fuel oil, motor oil, waste oil, diesel fuel, jet fuel, and other petroleum hydrocarbons, (c) regulated asbestos and asbestos-containing materials in any form, (d) polychlorinated biphenyls, and (e) urea formaldehyde foam.

 

Insolvency Proceeding means (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshalling of assets for creditors, or other, similar

 

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arrangements in respect of its creditors generally or any substantial portion of its creditors; undertaken under U.S. Federal, state or foreign law, including the Bankruptcy Code.

 

Interest Period means, with respect to a Eurodollar Advance, a period of one, two, three or six months commencing on a Business Day selected by the Borrower pursuant to this Agreement. Such Interest Period shall end on the day which corresponds numerically to such date one, two, three or six months thereafter, provided, however, that if there is no such numerically corresponding day in such next, second, third or sixth succeeding month, such Interest Period shall end on the last Business Day of such next, second, third or sixth succeeding month. If an Interest Period would otherwise end on a day which is not a Business Day, such Interest Period shall end on the next succeeding Business Day, provided, however, that if said next succeeding Business Day falls in a new calendar month, such Interest Period shall end on the immediately preceding Business Day.

 

Laws means all applicable statutes, laws, treaties, ordinances, tariff requirements, rules, regulations, orders, writs, injunctions, decrees, judgments, opinions, or interpretations of any Governmental Authority.

 

Lenders shall have the meaning set forth in the first paragraph hereof.

 

Lending Installation means, with respect to a Lender or the Administrative Agent, the office, branch, subsidiary or affiliate of such Lender or the Administrative Agent listed on the signature pages hereof or on a Schedule or otherwise selected by such Lender or the Administrative Agent pursuant to Section 2.17 .

 

Lien means any lien, mortgage, security interest, pledge, assignment, charge, title retention agreement, or encumbrance of any kind, and any other Right of or arrangement with any creditor (other than under or relating to subordination or other intercreditor arrangements) to have its claim satisfied out of any property or assets, or the proceeds therefrom, prior to the general creditors of the owner thereof.

 

Litigation means any action by or before any Governmental Authority.

 

Loan means, with respect to a Lender, such Lender’s loan made pursuant to Article II (or any conversion or continuation thereof).

 

Loans Outstanding means, for any Person, the sum of loans and direct lease financings, net of unearned income, by such Person and its Subsidiaries on a consolidated basis.

 

Loan Papers means (a) this Agreement, the Notes and the Fee Letter, (b) all agreements, documents, or instruments in favor of the Administrative Agent or the Lenders ever delivered pursuant to this Agreement or otherwise delivered in connection with all or any part of the Obligation, and (c) any and all future renewals, extensions, restatements, reaffirmations, or amendments of, or supplements to, all or any part of the foregoing.

 

Material Adverse Event means any set of one or more circumstances or events which, individually or collectively, could reasonably be expected to result in any (a) material impairment of the ability of the Borrower to perform any of its payment or other material

 

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obligations under the Loan Papers or the ability of the Administrative Agent or any Lender to enforce any such obligations or any of their respective Rights under the Loan Papers, or (b) material and adverse effect on the business, properties, condition (financial or otherwise) or results of operations of the Companies, in the aggregate.

 

Material Agreement means any written or oral agreement, contract, commitment, or understanding to which any Company is party whose failure to be in full force and effect could be a Material Adverse Event or would cause a Default or Unmatured Default hereunder.

 

Material Bank means any Bank whose assets at any date of determination equal or exceed 10% of the total consolidated assets of the Borrower.

 

Moody’s means Moody’s Investors Service, Inc. or any successor thereto.

 

Multiemployer Plan means a multiemployer plan as defined in Sections 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code to which any Company or any ERISA Affiliate is making, or has made, or is accruing, or has accrued, an obligation to make contributions.

 

Non-Performing Assets means, at any time, with respect to any Person, the sum of: (a) all loans which are 90 or more days past due, but which are still treated as accrual loans, (b) non-accrual loans, (c) Other Real Estate Owned, and (d) other assets acquired through foreclosure or other realization upon collateral or rearrangement or satisfaction of debt, but excluding in all cases any loans to the extent such loans are guaranteed by the U.S. government or any agency thereof.

 

Note means any promissory note issued at the request of a Lender pursuant to Section 2.13 in the form of Exhibit B .

 

Obligation means all present and future indebtedness, liabilities, and obligations, and all renewals and extensions thereof, or any part thereof, now or hereafter owed to the Administrative Agent, any Lender, or any Affiliate of any Lender by the Borrower arising from, by virtue of, or pursuant to any Loan Papers, together with all interest accruing thereon, fees, costs, and expenses (including, without limitation, all attorneys’ fees and expenses incurred in the enforcement or collection thereof) payable under the Loan Papers.

 

OCC means the Office of the Comptroller of the Currency, and any successor thereto.

 

Ordinary Course Transactions means transactions entered into by any Bank or the BOK Funding Trust in the ordinary course of its business, or in its industry, and in compliance with the statutes, rules, regulations and orders of Governmental Authorities.

 

Original Credit Agreement means that certain Revolving Credit Agreement, dated as of December 22, 2003, by and among the Borrower, the lenders from time to time party thereto and SunTrust Bank as administrative agent.

 

Original Lenders means the lenders from time to time party to the Original Credit Agreement.

 

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Other Real Estate Owned means, at any time, with respect to any Person real property acquired in satisfaction of Debt.

 

Other Taxes is defined in Section 3.5(ii) .

 

Outstanding Loans means, at any time, the principal amount of the Loans then outstanding.

 

Participants is defined in Section 13.2.1 .

 

Payment Date means, with respect to Floating Rate Advances and the Facility Fee, the last day of each March, June, September and December.

 

PBGC means the Pension Benefit Guaranty Corporation, or any successor thereof, established pursuant to ERISA.

 

Permitted Debt means Debt permitted under Section 6.12 as described in such Section.

 

Permitted Liens means Liens permitted under Section 6.13 as described in such Section.

 

Person means any individual, entity, or Governmental Authority.

 

Principal Debt means, on any date of determination, the aggregate unpaid principal balance of all Borrowings under the Facility.

 

Purchasers is defined in Section 13.3.1 .

 

Release means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposal, deposit, dispersal, migrating, or other movement into the air, ground, or surface water, or soil.

 

Reportable Event shall have the meaning specified in Section 4043 of ERISA or the regulations issued thereunder, excluding events for which the notice requirement is waived under applicable PBGC regulations other than those events described in sections 2615.11, 2615.15 and 2615.19 of such regulations, including each such provision as it may subsequently be renumbered.

 

Representatives means representatives, officers, directors, employees, attorneys, and agents.

 

Required Lenders means Lenders in the aggregate having in excess of 50% of the Aggregate Commitment or, if the Aggregate Commitment has been terminated, Lenders in the aggregate holding in excess of 50% of the aggregate unpaid principal amount of the outstanding Advances; provided however that in no event shall Required Lenders be less than two Lenders.

 

Requirement of Law means, as to any Person, any law (statutory or common), treaty, rule or regulation or determination of an arbitrator or of a Governmental Authority, in each case

 

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applicable to or binding upon the Person or any of its property or to which the Person or any of its property is subject.

 

Reserves means, at any time, with respect to any Person, the account of such Person denominated as the “combined reserve for credit losses” as reflected in the Borrower’s financial statements.

 

Reserve Requirement means the aggregate of the maximum reserve percentages (including, without limitation, any emergency, supplemental, special or other marginal reserves) expressed as a decimal (rounded upwards to the next 1/100th of 1%) in effect on any day to which the Administrative Agent is subject with respect to the Eurodollar Rate pursuant to regulations issued by the Board of Governors of the Federal Reserve System (or any Governmental Authority succeeding to any of its principal functions) with respect to eurocurrency funding (currently referred to as “eurocurrency liabilities” under Regulation D). Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under Regulation D. The Reserve Requirement shall be adjusted automatically on and as of the effective date of any change in any reserve percentage

 

Responsible Officer means the chairman, president, chief executive officer, senior executive vice president, executive vice president, chief financial officer, or senior vice president of the Borrower, or, for all purposes under the Loan Papers, any other officer designated from time to time by the Board of Directors of the Borrower, which designated officer is acceptable to the Administrative Agent.

 

Restricted Payments means: (a) redemptions, repurchases, dividends, and distributions of any kind in respect of the Borrower’s capital stock (including without limitation any class of common or preferred shares); and (b) payments of principal and interest on, and any redemptions or repurchases of, Subordinated Debt.

 

Rights means rights, remedies, powers, privileges, and benefits.

 

Risk Weighted Assets means, at any time, of any Person, the sum of all balance sheet assets and credit equivalents multiplied in each risk category established by the Board by the risk weight assigned to such category, as modified from time to time by the Board.

 

S&P means Standard & Poor’s Rating Group, a division of McGraw Hill, Inc., a New York corporation, or any successor thereto.

 

Schedule means, unless specified otherwise, a schedule attached to this Agreement, as the same may be supplemented and modified from time to time in accordance with the terms of the Loan Papers.

 

Solvent means, as to a Person, that (a) the aggregate fair market value of such Person’s assets exceeds its liabilities (whether contingent, subordinated, unmatured, unliquidated, or otherwise), (b) such Person has sufficient cash flow to enable it to pay its Debts as they mature, and (c) such Person does not have unreasonably small capital to conduct such Person’s businesses.

 

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Subordinated Debt means any unsecured Debt of the Borrower which is subordinate in right of payment to the Obligation, and whose terms and provisions are acceptable to the Administrative Agent.

 

Subsidiary of any Person means (a) any entity of which an aggregate of more than 50% (in number of votes) of the stock is owned of record or beneficially, directly or indirectly by such Person, but not including shares held in trust and other fiduciary capacities for the accounts of others by such Person, or (b) any partnership (limited or general) of which such Person shall at any time be the general partner or own, directly or indirectly, fifty percent (50%) or more of the issued and outstanding partnership interests.

 

Taxes means any and all present or future taxes, duties, levies, imposts, deductions, charges or withholdings, and any and all liabilities with respect to the foregoing, but excluding Excluded Taxes.

 

Tier One Capital means, at any time, for any Person, Tier One Capital as defined from time to time by the Board or other applicable Governmental Authority.

 

Tier Two Capital means, at any time, for any Person, Tier Two Capital as defined from time to time by the Board or other applicable Governmental Authority.

 

Total Capital means, at any time, of any Person, the sum of: (a) Tier One Capital, and (b) Tier Two Capital.

 

Total Debt means, at any time, the sum of the aggregate amount of all Debt of the Borrower.

 

Total Equity Investment in Subsidiaries means, at any time, all amounts which in conformity with GAAP, would be included as the total equity investment of the Borrower in its Subsidiaries.

 

Transferee is defined in Section 13.4 .

 

Type means, with respect to any Advance, its nature as a Floating Rate Advance or a Eurodollar Advance.

 

Unmatured Default means an event which but for the lapse of time or the giving of notice, or both, would constitute a Default.

 

Voting Stock means securities (as such term is defined in Section 2(1) of the Securities Act of 1933, as amended) of any class or classes, the holders of which are ordinarily, in the absence of contingencies, entitled to elect a majority of the corporate directors (or Persons performing similar functions).

 

Wholly-owned when used in connection with any Subsidiary shall mean a Subsidiary of which all of the issued and outstanding shares of stock (except shares required as directors’ qualifying shares) shall be owned by the Borrower or one or more of its Wholly-owned Subsidiaries.

 

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1.2 Number and Gender of Words; Other References. Unless otherwise specified in the Loan Papers, (a) where appropriate, the singular includes the plural and vice vers a, and words of any gender include each other gender, (b) heading and caption references may not be construed in interpreting provisions, (c) monetary references are to currency of the United States of America, (d) section, paragraph, annex, schedule, exhibit, and similar references are to the particular Loan Paper in which they are used, (e) references to “ telecopy ,” “ f acsimile,” “ fax, ” or similar terms are to facsimile or telecopy transmissions, (f) references to “ including ” mean including without limiting the generality of any description preceding that word, (g) the rule of construction that references to general items that follow references to specific items are limited to the same type or character of those specific items is not applicable in the Loan Papers, (h) references to any Person include that Person’s heirs, personal representatives, successors, trustees, receivers, and permitted assigns, (i) references to any Law include every amendment or supplement to it, rule and regulation adopted under it, and successor or replacement for it, and (j) references to any Loan Papers or other document include every renewal and extension of it, amendment and supplement to it, and replacement or substitution for it.

 

1.3 Accounting Principles. Except to the extent otherwise provided in this Agreement, all accounting and financial terms used in the Loan Papers and the compliance with each financial covenant therein shall be determined in accordance with GAAP, and, all accounting principles shall be applied on a consistent basis so that the accounting principles in a current period are comparable in all material respects to those applied during the preceding comparable period. If the Borrower or any Lender determines that a change in GAAP from that in effect on the date hereof has altered the treatment of certain financial data to its detriment under this Agreement, such party may, by written notice to the others and the Administrative Agent not later than ten (10) days after the effective date of application by the Borrower of such change in GAAP, request renegotiation of the financial covenants affected by such change. If the Borrower and Required Lenders have not agreed on revised covenants within thirty (30) days after delivery of such notice, then, for purposes of this Agreement, GAAP will mean generally accepted accounting principles on the date just prior to the earlier of the required date of the change or the actual date of implementation of the change that gave rise to the renegotiation occurred.

 

ARTICLE 2 THE CREDITS.

 

2.1 Commitments. From and including the date of this Agreement and prior to the Facility Termination Date, each Lender severally agrees, on the terms and conditions set forth in this Agreement, to make Loans to the Borrower from time to time in amounts not to exceed in the aggregate at any one time outstanding the amount of its Commitment. Subject to the terms of this Agreement, the Borrower may borrow, repay and reborrow at any time prior to the Facility Termination Date. The Commitments to lend hereunder shall expire on the Facility Termination Date. All borrowings and payments under this Agreement shall be in U.S. dollars.

 

2.2 Required Payments; Termination. Any outstanding Advances and all other unpaid portions of the Obligation shall be paid in full by the Borrower on the Facility Termination Date.

 

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2.3 Ratable Loans. Each Advance hereunder shall consist of Loans made from the several Lenders ratably in proportion to the ratio that their respective Commitments bear to the Aggregate Commitment.

 

2.4 Types of Advances. The Advances may be Floating Rate Advances or Eurodollar Advances, or a combination thereof, selected by the Borrower in accordance with Sections 2.8 and 2.9 .

 

2.5 Fees; Reductions in Aggregate Commitment. (a) The Borrower agrees to pay to the Administrative Agent for the account of each Lender a facility fee (“ Facility Fee ”) at the Applicable Margin per annum on the unused portion of such Lender’s Commitment from the date hereof to and including the Facility Termination Date, payable on each Payment Date hereafter and on the Facility Termination Date. The Borrower may permanently reduce the Aggregate Commitment in whole, or in part ratably among the Lenders in an amount of not less than $5,000,000 and integral multiples of $1,000,000 upon at least three Business Days’ written notice to the Administrative Agent, which notice shall specify the amount of any such reduction, provided, however, that the amount of the Aggregate Commitment may not be reduced below the aggregate principal amount of the outstanding Advances.

 

(b) The Borrower agrees to pay the Administrative Agent for its own account such fees as set forth in the Fee Letter.

 

2.6 Minimum Amount of Each Advance. Each Eurodollar Advance shall be in minimum amounts of $3,000,000 and in integral multiples of $1,000,000 and Floating Rate Advances shall be in minimum amounts of $1,000,000 and in integral multiples of $100,000, provided, however, that any Floating Rate Advance may be in the amount of the unused Aggregate Commitment.

 

2.7 Optional Principal Payments. The Borrower may from time to time pay, without penalty or premium, all outstanding Floating Rate Advances or, in a minimum aggregate amount of $3,000,000 or any integral multiple of $1,000,000 in excess thereof, any portion of the outstanding Floating Rate Advances upon one Business Day’s prior notice to the Administrative Agent. The Borrower may on the last day of any Interest Period for Eurodollar Advances pay all such outstanding Eurodollar Advances, or, in a minimum aggregate amount of $3,000,000 or any integral multiple of $1,000,000 in excess thereof, any portion of the outstanding Eurodollar Advances upon three Business Day’s prior notice to the Administrative Agent without breakage or redeployment costs.

 

2.8 Method of Selecting Types and Interest Periods for New Advances. The Borrower shall select the Type of Advance and, in the case of each Eurodollar Advance, the Interest Period applicable thereto from time to time. The Borrower shall give the Administrative Agent irrevocable notice in substantially the form of Exhibit C (a “ Borrowing Notice ”) not later than 11:00 a.m. (Atlanta, Georgia time), at least one Business Day before the Borrowing Date of each Floating Rate Advance, and at least three Business Days before the Borrowing Date for each Eurodollar Advance, specifying:

 

(a) the Borrowing Date, which shall be a Business Day, of such Advance,

 

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(b) the aggregate amount of such Advance,

 

(c) the Type of Advance selected, and

 

(d) in the case of each Eurodollar Advance, the Interest Period applicable thereto.

 

Not later than 2:00 p.m. (Atlanta, Georgia time) on each Borrowing Date, each Lender shall make available its Loan or Loans in funds immediately available in Atlanta, Georgia to the Administrative Agent at its address specified pursuant to Article 14. The Administrative Agent will make the funds so received from the Lenders available to the Borrower at the Administrative Agent’s aforesaid address by 4:00 p.m. (Atlanta, Georgia time) on such Borrowing Date.

 

2.9 Conversion and Continuation of Outstanding Advances. Floating Rate Advances shall continue as Floating Rate Advances unless and until such Floating Rate Advances are converted into Eurodollar Advances pursuant to this Section 2.9 or are prepaid in accordance with Section 2.7 . Each Eurodollar Advance shall continue as a Eurodollar Advance until the end of the then applicable Interest Period therefor, at which time such Eurodollar Advance shall be automatically converted into a Floating Rate Advance unless (x) such Eurodollar Advance is or was prepaid in accordance with Section 2.7 or (y) the Borrower shall have given the Administrative Agent a Conversion/Continuation Notice (as defined below) requesting that, at the end of such Interest Period, such Eurodollar Advance continue as a Eurodollar Advance for the same or another Interest Period. Subject to the terms of Section 2.6 , the Borrower may elect from time to time to convert all or any part of an Advance into an Advance of another Type. The Borrower shall give the Administrative Agent irrevocable notice in substantially the form of Exhibit D (a “Conversion/Continuation Notice ”) of each conversion of an Advance into an Advance of another Type or continuation of a Eurodollar Advance not later than 11:00 a.m. (Atlanta, Georgia time) at least three Business Days prior to the date of the requested conversion or continuation as or into a Eurodollar Advance, or 11:00 a.m. (Atlanta, Georgia time) at least one Business Day prior to the date of the requested conversion into a Floating Rate Advance, specifying:

 

(a) the requested date, which shall be a Business Day, of such conversion or continuation,

 

(b) the aggregate amount and Type of the Advance which is to be converted or continued, and

 

(c) the amount of such Advance which is to be converted into or continued as a Eurodollar Advance and the duration of the Interest Period applicable thereto.

 

2.10 Changes in Interest Rate, etc.. Each Floating Rate Advance shall bear interest on the outstanding principal amount thereof, for each day from and including the date such Advance is made or is automatically converted into a Floating Rate Advance pursuant to Section 2.9 , to but excluding the date it is paid or is converted into an Advance of another Type pursuant to Section 2.9 hereof, at a rate per annum equal to the Floating Rate for such day. Changes in the rate of

 

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interest on that portion of any Advance maintained as a Floating Rate Advance will take effect simultaneously with each change in the Alternate Base Rate. Each Eurodollar Advance shall bear interest on the outstanding principal amount thereof from and including the first day of the Interest Period applicable thereto to (but not including) the last day of such Interest Period at the Eurodollar Rate determined by the Administrative Agent as applicable to such Eurodollar Advance based upon the Borrower’s selections under Sections 2.8 and 2.9 and otherwise in accordance with the terms hereof.

 

2.11 Rates Applicable After Default. Notwithstanding anything to the contrary contained in Section 2.8 or 2.9 , during the continuance of a Default or Unmatured Default the Required Lenders may, at their option, by notice to the Borrower (which notice may be revoked at the option of the Required Lenders notwithstanding any provision of Section 9.1 requiring unanimous consent of the Lenders to changes in interest rates), declare that no Advance may be made as, converted into or continued as a Eurodollar Advance. During the continuance of a Default the Administrative Agent or the Required Lenders may, at their option, by notice to the Borrower (which notice may be revoked at the option of the Required Lenders notwithstanding any provision of Section 9.1 requiring unanimous consent of the Lenders to changes in interest rates), declare that (i) each Eurodollar Advance shall bear interest for the remainder of the applicable Interest Period at the rate otherwise applicable to such Interest Period plus 2% per annum and (ii) each Floating Rate Advance shall bear interest at a rate per annum equal to the Floating Rate in effect from time to time plus 2% per annum; provided that, during the continuance of a Default under Section 7.3 , the interest rates set forth in clauses (i) and (ii) above shall be applicable to all Advances without any election or action on the part of the Administrative Agent or any Lender.

 

2.12 Method of Payment. All payments of the Obligation hereunder shall be made, without setoff, deduction, or counterclaim, in immediately available funds to the Administrative Agent at the Administrative Agent’s address specified pursuant to Article 14, or at any other Lending Installation of the Administrative Agent specified in writing by the Administrative Agent to the Borrower, by 12:00 noon (Atlanta, Georgia time) on the date when due and shall be applied ratably by the Administrative Agent among the Lenders. Each payment delivered to the Administrative Agent for the account of any Lender shall be delivered promptly by the Administrative Agent to such Lender in the same type of funds that the Administrative Agent received at its address specified pursuant to Article 14 or at any Lending Installation specified in a notice received by the Administrative Agent from such Lender.

 

2.13 Noteless Agreement; Evidence of Indebtedness. (i) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

 

(ii) The Administrative Agent shall also maintain accounts in which it will record (a) the amount of each Loan made hereunder, the Type thereof and the Interest Period with respect thereto, (b) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender

 

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hereunder and (c) the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share thereof.

 

(iii) The entries maintained in the accounts maintained pursuant to paragraphs (i) and (ii) above shall be prima facie evidence of the existence and amounts of the Obligations therein recorded; provided , however , that the failure of the Administrative Agent or any Lender to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Obligations in accordance with their terms.

 

(iv) Any Lender may request that its Loans be evidenced by a promissory note (a “ Note ”). In such event, the Borrower shall prepare, execute and deliver to such Lender a Note payable to the order of such Lender in a form supplied by the Administrative Agent. Thereafter, the Loans evidenced by such Note and interest thereon shall at all times (including after any assignment pursuant to Section 13.3 ) be represented by one or more Notes payable to the order of the payee named therein or any assignee pursuant to Section 13.3 , except to the extent that any such Lender or assignee subsequently returns any such Note for cancellation and requests that such Loans once again be evidenced as described in paragraphs (i) and (ii) above.

 

2.14 Telephonic Notices. The Borrower hereby authorizes the Lenders and the Administrative Agent to extend, convert or continue Advances, effect selections of Types of Advances and to transfer funds based on telephonic notices made by any Person the Administrative Agent or any Lender in good faith believes to be an Authorized Officer acting on behalf of the Borrower, it being understood that the foregoing authorization is specifically intended to allow Borrowing Notices and Conversion/Continuation Notices to be given telephonically. The Borrower agrees to deliver promptly to the Administrative Agent a written confirmation, if such confirmation is requested by the Administrative Agent or any Lender, of each telephonic notice signed by an Authorized Officer. If the written confirmation differs in any material respect from the action taken by the Administrative Agent and the Lenders, the records of the Administrative Agent and the Lenders shall govern absent any error which may be clear from such records themselves.

 

2.15 Interest Payment Dates; Interest and Fee Basis. Interest accrued on each Floating Rate Advance shall be payable on each Payment Date, commencing with the first such date to occur after the date hereof, on any date on which the Floating Rate Advance is prepaid, whether due to acceleration or otherwise, and at maturity. Interest accrued on that portion of the outstanding principal amount of any Floating Rate Advance converted into an Advance of another Type shall be payable on the date of conversion. Interest accrued on each Eurodollar Advance shall be payable on the last day of its applicable Interest Period, on any date on which the Eurodollar Advance is prepaid, whether by acceleration or otherwise, and at maturity. Interest accrued on each Eurodollar Advance having an Interest Period longer than three months shall also be payable on the last day of each three-month interval during such Interest Period. Interest and fees shall be calculated for actual days elapsed on the basis of a 360-day year, except that interest on Floating Rate Advances and Facility Fees shall be calculated for actual days elapsed on the basis of a 365, or 366-day year, as applicable. Interest shall be payable for the day

 

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an Advance is made but not for the day of any payment on the amount paid if payment is received prior to 12:00 noon (Atlanta, Georgia time) at the place of payment. If any payment of principal of or interest on an Advance shall become due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day and, in the case of a principal payment, such extension of time shall be included in computing interest in connection with such payment.

 

2.16 Notification of Advances, Interest Rates, Prepayments and Commitment Reductions. Promptly after receipt thereof, the Administrative Agent will notify each Lender of the contents of each Aggregate Commitment reduction notice, Borrowing Notice, Conversion/Continuation Notice, and repayment notice received by it hereunder. The Administrative Agent will notify each Lender of the interest rate applicable to each Eurodollar Advance promptly upon determination of such interest rate and will give each Lender prompt notice of each change in the Alternate Base Rate.

 

2.17 Lending Installations. Each Lender may book its Loans at any Lending Installation selected by such Lender and may change its Lending Installation from time to time. All terms of this Agreement shall apply to any such Lending Installation and the Loans and any Notes issued hereunder shall be deemed held by each Lender for the benefit of any such Lending Installation. Each Lender may, by written notice to the Administrative Agent and the Borrower in accordance with Article 14, designate replacement or additional Lending Installations through which Loans will be made by it and for whose account Loan payments are to be made.

 

2.18 Non-Receipt of Funds by the Administrative Agent. Unless the Borrower or a Lender, as the case may be, notifies the Administrative Agent prior to the date on which it is scheduled to make payment to the Administrative Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal, interest or fees to the Administrative Agent for the account of the Lenders, that it does not intend to make such payment, the Administrative Agent may assume that such payment has been made. The Administrative Agent may, but shall not be obligated to, make the amount of such payment available to the intended recipient in reliance upon such assumption. If such Lender or the Borrower, as the case may be, has not in fact made such payment to the Administrative Agent, the recipient of such payment shall, on demand by the Administrative Agent, repay to the Administrative Agent the amount so made available together with interest thereon in respect of each day during the period commencing on the date such amount was so made available by the Administrative Agent until the date the Administrative Agent recovers such amount at a rate per annum equal to (x) in the case of payment by a Lender, the Federal Funds Effective Rate for such day for the first three days and, thereafter, the interest rate applicable to the relevant Loan or (y) in the case of payment by the Borrower, the interest rate applicable to the relevant Loan.

 

2.19 Replacement of Lender. If any Lender’s obligation to make or continue, or to convert Floating Rate Advances into, Eurodollar Advances shall be suspended pursuant to Section 3.3 (any Lender so affected an “ Affected Lender ”), the Borrower may elect, if such amounts continue to be charged or such suspension is still effective, to replace such Affected Lender as a Lender party to this Agreement, provided that no Default or Unmatured Default shall have occurred and be continuing at the time of such replacement, and provided further that, concurrently with such replacement, (i) another bank or other entity which is reasonably

 

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satisfactory to the Borrower and the Administrative Agent shall agree, as of such date, to purchase for cash the Advances and any other Obligation due to the Affected Lender pursuant to an assignment substantially in the form of Exhibit E and to become a Lender for all purposes under this Agreement and to assume all obligations of the Affected Lender to be terminated as of such date and to comply with the requirements of Section 13.3 applicable to assignments, and (ii) the Borrower shall pay to such Affected Lender in same day funds on the day of such replacement (A) all interest, fees and other amounts then accrued but unpaid to such Affected Lender by the Borrower hereunder to and including the date of termination, including without limitation payments due to such Affected Lender under Sections 3.1, 3.2 and 3.5 , and (B) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 3.4 had the Loans of such Affected Lender been prepaid on such date rather than sold to the replacement Lender.

 

2.20 Increase of Commitments; Additional Lenders.

 

(a) So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date, Borrower may, upon at least 30 days’ written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Commitment by an amount not to exceed $100,000,000 (the amount of any such increase, the “Additional Commitment Amount”). Each Lender shall have the right for a period of 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Commitment by a principal amount equal to its pro rata share of the Additional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to increase its Commitment or its other obligations under this Agreement and the other Loan Papers, and any decision by a Lender to increase its Commitment shall be made in its sole discretion independently from any other Lender.

 

(b) If any Lender shall not elect to increase its Commitment pursuant to subsection (a) of this Section 2.20 , the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Commitment and in the case of any other such Person (an “Additional Lender”), become a party to this Agreement; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Commitments of the existing Lenders pursuant to this subsection (b) plus the Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.

 

(c) An increase in the aggregate amount of the Commitments pursuant to this Section 2.20 shall become effective upon the receipt by the Administrative Agent of an supplement or joinder in form and substance satisfactory to the Administrative Agent executed by the Borrower, by each Additional Lender and by each other Lender whose Commitment is to be increased, setting forth the new Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, together with Notes evidencing such increase in the Commitments, and such evidence of appropriate corporate authorization on the part of the Borrower with respect to

 

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the increase in the Commitments and such opinions of counsel for the Borrower with respect to the increase in the Commitments as the Administrative Agent may reasonably request.

 

(d) Upon the acceptance of any such supplement or joinder by the Administrative Agent, the Aggregate Commitment Amount shall automatically be increased by the amount of the Commitments added through such supplement or joinder and Annex I shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments.

 

(e) Upon any increase in the aggregate amount of the Commitments pursuant to this Section 2.20 that is not pro rata among all Lenders, within five Business Days, in the case of any Floating Rate Loans then outstanding, and at the end of the then current Interest Period (or such date as the Administrative Agent may elect if an Event of Default has occurred) with respect thereto, in the case of any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article IV , the Borrower shall reborrow Loans from the Lenders in proportion to their respective Commitments after giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in proportion to their respective Commitments after giving effect to such increase.

 

ARTICLE 3 YIELD PROTECTION; TAXES.

 

3.1 Yield Protection. If, on or after the date of this Agreement, the adoption of any law or any governmental or quasi-governmental rule, regulation, policy, guideline or directive (whether or not having the force of law), or any change in the interpretation or administration thereof by any governmental or quasi-governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender or applicable Lending Installation with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency:

 

(a) subjects any Lender or any applicable Lending Installation to any Taxes, or changes the basis of taxation of payments (other than with respect to Excluded Taxes) to any Lender in respect of its Eurodollar Loans, or

 

(b) imposes or increases or deems applicable any reserve, assessment, insurance charge, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender or any applicable Lending Installation (other than reserves and assessments taken into account in determining the interest rate applicable to Eurodollar Advances), or

 

(c) imposes any other condition the result of which is to increase the cost to any Lender or any applicable Lending Installation of making, funding or maintaining its Eurodollar Loans or reduces any amount receivable by any Lender or any applicable Lending Installation in connection with its Eurodollar Loans, or requires any Lender or any applicable Lending Installation to make any payment calculated by reference to the amount of Eurodollar Loans held or interest received by it, by an amount deemed material by such Lender,

 

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and the result of any of the foregoing is to increase the cost to such Lender or applicable Lending Installation of making or maintaining its Eurodollar Loans or Commitment or to reduce the return received by such Lender or applicable Lending Installation in connection with such Eurodollar Loans or Commitment, then, within 15 days of demand by such Lender, the Borrower shall pay such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction in amount received.

 

3.2 Changes in Capital Adequacy Regulations. If a Lender determines the amount of capital required or expected to be maintained by such Lender, any Lending Installation of such Lender or any corporation controlling such Lender is increased as a result of a Change, then, within 15 days of demand by such Lender, the Borrower shall pay such Lender the amount necessary to compensate for any shortfall in the rate of return on the portion of such increased capital which such Lender determines is attributable to this Agreement, its Loans or its Commitment to make Loans hereunder (after taking into account such Lender’s policies as to capital adequacy). “Change” means (i) any change after the date of this Agreement in the Risk-Based Capital Guidelines or (ii) any adoption of or change in any other law, governmental or quasi-governmental rule, regulation, policy, guideline, interpretation, or directive (whether or not having the force of law) after the date of this Agreement which affects the amount of capital required or expected to be maintained by any Lender or any Lending Installation or any corporation controlling any Lender. “Risk-Based Capital Guidelines” means (i) the risk-based capital guidelines in effect in the United States on the date of this Agreement, including transition rules, and (ii) the corresponding capital regulations promulgated by regulatory authorities outside the United States implementing the July 1988 report of the Basle Committee on Banking Regulation and Supervisory Practices Entitled “International Convergence of Capital Measurements and Capital Standards,” including transition rules, and any amendments to such regulations adopted prior to the date of this Agreement.

 

3.3 Availability of Types of Advances. If any Lender determines that maintenance of its Eurodollar Loans at a suitable Lending Installation would violate any applicable law, rule, regulation, or directive, whether or not having the force of law, or if the Required Lenders reasonably determine that (i) deposits of a type and maturity appropriate to match fund Eurodollar Advances are not available or (ii) the interest rate applicable to Eurodollar Advances does not accurately reflect the cost of making or maintaining Eurodollar Advances, then the Administrative Agent shall suspend the availability of Eurodollar Advances (other than for a reason applicable to a particular Lender only and not to the market in general) and require any affected Eurodollar Advances to be prepaid or converted to Floating Rate Advances, subject to the payment of any funding indemnification amounts required by Section 3.4 .

 

3.4 Funding Indemnification. If any payment of a Eurodollar Advance occurs on a date which is not the last day of the applicable Interest Period, whether because of acceleration, prepayment or otherwise, or a Eurodollar Advance is not made on the date specified by the Borrower for any reason other than default by the Lenders, the Borrower will indemnify each Lender for any loss or cost incurred by it resulting therefrom, including, without limitation, any loss or cost in liquidating or employing deposits acquired to fund or maintain such Eurodollar Advance.

 

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3.5 Taxes. (i) All payments by the Borrower to or for the account of any Lender or the Administrative Agent hereunder or under any Note shall be made free and clear of and without deduction for any and all Taxes. If the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder to any Lender or the Administrative Agent, (a) 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 3.5 ) such Lender or the Administrative Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (b) the Borrower shall make such deductions, (c) the Borrower shall pay the full amount deducted to the relevant authority in accordance with applicable law and (d) the Borrower shall furnish to the Administrative Agent the original copy of a receipt evidencing payment thereof within 30 days after such payment is made.

 

(ii) In addition, the Borrower hereby agrees to pay any present or future stamp or documentary taxes and any other excise or property taxes, charges or similar levies which arise from any payment made hereunder or under any Note or from the execution or delivery of, or otherwise with respect to, this Agreement or any Note (“ Other Taxes ”).

 

(iii) The Borrower hereby agrees to indemnify the Administrative Agent and each Lender for the full amount of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed on amounts payable under this Section 3.5 ) paid by the Administrative Agent or such Lender and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto. Payments due under this indemnification shall be made within 30 days of the date the Administrative Agent or such Lender makes demand therefor pursuant to Section 3.6 .

 

(iv) If the U.S. Internal Revenue Service or any other governmental authority of the United States or any other country or any political subdivision thereof asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid to or for the account of any Lender (because the appropriate form was not delivered or properly completed, because such Lender failed to notify the Administrative Agent of a change in circumstances which rendered its exemption from withholding ineffective, or for any other reason), such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as tax, withholding therefor, or otherwise, including penalties and interest, and including taxes imposed by any jurisdiction on amounts payable to the Administrative Agent under this subsection, together with all costs and expenses related thereto (including attorneys fees and time charges of attorneys for the Administrative Agent, which attorneys may be employees of the Administrative Agent). The obligations of the Lenders under this Section 3.5(iv) shall survive the payment of the Obligations and termination of this Agreement.

 

3.6 Lender Statements; Survival of Indemnity. To the extent reasonably possible, each Lender shall designate an alternate Lending Installation with respect to its Eurodollar Loans to reduce any liability of the Borrower to such Lender under Sections 3.1, 3.2 and 3.5 or to avoid

 

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the unavailability of Eurodollar Advances under Section 3.3 , so long as such designation is not, in the reasonable judgment of such Lender, disadvantageous to such Lender. Each Lender shall deliver a written statement of such Lender to the Borrower (with a copy to the Administrative Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4 or 3.5 . Such written statement shall set forth in reasonable detail the calculations upon which such Lender determined such amount and shall be prima facie evidence thereof. Determination of amounts payable under such Sections in connection with a Eurodollar Loan shall be calculated as though each Lender funded its Eurodollar Loan through the purchase of a deposit of the type and maturity corresponding to the deposit used as a reference in determining the Eurodollar Rate applicable to such Loan, whether in fact that is the case or not. Unless otherwise provided herein, the amount specified in the written statement of any Lender shall be payable on demand after receipt by the Borrower of such written statement. The obligations of the Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of the Obligations and termination of this Agreement.

 

ARTICLE 4 CONDITIONS PRECEDENT.

 

4.1 Initial Advance. The Lenders shall not be required to make the initial Advance hereunder unless the Borrower has furnished to the Administrative Agent with sufficient copies for the Lenders, as applicable:

 

(a) Copies of the articles of incorporation of the Borrower, together with all amendments, and a certificate of existence, each certified by the appropriate governmental officer in its jurisdiction of incorporation.

 

(b) Copies, certified by the Secretary or Assistant Secretary of the Borrower, of its by-laws and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Papers to which the Borrower is a party.

 

(c) An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Papers to which the Borrower is a party, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.

 

(d) A certificate, signed by the chief financial officer, treasurer, corporate controller or investment portfolio manager of the Borrower, stating that on the initial Borrowing Date no Default or Unmatured Default has occurred and is continuing.

 

(e) A written opinion of the Borrower’s counsel, addressed to the Administrative Agent and the Lenders in substantially the form of Exhibit F .

 

(f) Evidence to the satisfaction of the Administrative Agent the “Obligation” under the Original Credit Agreement has been paid in full and the Original Credit Agreement has been terminated.

 

(g) Certified copies of all consents, approvals, authorizations, registrations, or filings required to be made or obtained by the Borrower in connection with this Agreement and any transaction being financed with the proceeds of this Agreement, and such consents,

 

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approvals, authorizations, registrations, filings and orders shall be in full force and effect an all applicable waiting periods shall have expired an no investigation or inquiry by any Governmental Authority regarding this Agreement or any transaction being financed with the proceeds thereof shall be ongoing.

 

(h) Receipt and satisfactory review by the Administrative Agent of the consolidated and consolidating financial statements of the Borrower and its Subsidiaries for the fiscal years ended 2002, 2003 and 2004, including balance sheets, income and cash flow statements audited by independent public accountants of recognized national standing and prepared in conformity with GAAP, and the consolidated financial statements of the Borrower and its Subsidiaries for fiscal quarter ending September 30, 2005, and such other financial information as the Administrative Agent may request.

 

(i) Certificates of insurance issued on behalf of insurers of the Borrower, describing in reasonable detail the types and amounts of insurance (property and liability) maintained by the Borrower, naming Administrative Agent as additional insured.

 

(j) Receipt of all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Loan Paper and under any agreement with the Administrative Agent or SunTrust Capital Markets, Inc.

 

(k) A duly executed copy of this Agreement, any Notes requested by a Lender pursuant to Section 2.13 payable to the order of each such requesting Lender and all other Loan Papers.

 

(l) A Borrowing Notice for the initial Advance and a written funds disbursement letter, including transfer instructions, addressed to the Administrative Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested.

 

(m) Such other documents as any Lender or its counsel may have reasonably requested.

 

4.2 Each Advance. The Lenders shall not be required to make any Advance unless on the applicable Borrowing Date:

 

(a) There exists no Default or Unmatured Default.

 

(b) The representations and warranties contained in Article 5 are true and correct as of such Borrowing Date except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date.

 

(c) The Administrative Agent shall have received such other documents, certificates, information or legal opinions as it or the Required Lenders has reasonably requested.

 

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(d) Since the date of the most recent audited financial statements delivered prior to the Closing Date, there shall have been no change that has had or could be reasonably expected to result in a Material Adverse Event.

 

Each Borrowing Notice with respect to each such Advance shall constitute a representation and warranty by the Borrower that the conditions contained in Sections 4.2(a) and (b)  have been satisfied. Any Lender may require a duly completed compliance certificate in substantially the form of Exhibit A as a condition to making an Advance.

 

ARTICLE 5 REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants to the Administrative Agent and the Lenders as follows:

 

5.1 Purpose of Credit Facility. The Borrower will use (or will loan such proceeds to its Companies to so use) all proceeds of Advances for one or more of the following: (a) to refinance certain existing Debt; (b) commercial paper back-up; (c) working capital; (d) to finance acquisitions permitted under Section 6.19 , or otherwise approved by the Required Lenders; and (e) for general corporate purposes. No Company is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any “ margin stock ” within the meaning of Regulation U . No part of the proceeds of any Borrowing will be used, directly or indirectly, for a purpose which violates any Law, including, without limitation, the provisions of Regulations T, U, or X (as enacted by the Board, as amended) or which violates one or more of the provisions of this Agreement.

 

5.2 Existence, Good Standing, Authority, and Authorizations. The Borrower and each Subsidiary is duly organized, validly existing, and in good standing under the Laws of its jurisdiction of organization (such jurisdictions being identified on Schedule 5.2 , as supplemented and modified in writing from time to time to reflect any changes to such Schedule as a result of transactions permitted by the Loan Papers), except where the failure to be so would not be a Material Adverse Event. The Borrower and each Subsidiary is duly qualified to transact business and is in good standing in each jurisdiction where the nature and extent of its business and properties require the same, except where the failure to be so qualified would not be a Material Adverse Event. Each of the Borrower and the Companies possesses all the Authorizations, franchises, permits, licenses, certificates of compliance, and approvals and grants of authority necessary, material to the conduct of its respective business(es) other than where the failure to possess same would not be a Material Adverse Event, and the same are valid, binding, enforceable, and subsisting without any material defaults thereunder or enforceable material adverse limitations thereon and are not subject to any material proceedings or claims opposing the issuance, development, or use thereof or contesting the validity thereof other than those the failure of which to possess fully would not be a Material Adverse Event. No authorization, consent, approval, waiver, license, or formal exemptions from, nor any filing, declaration, or registration with, any Governmental Authority (federal, state, or local), or non-governmental entit