REVOLVING CREDIT AGREEMENT

EXHIBIT 99.1

 

REVOLVING CREDIT AGREEMENT

 

dated as of December 16, 2005

 

between

 

NBC CAPITAL CORPORATION

as Borrower

 

and

 

SUNTRUST BANK

as Lender

TABLE OF CONTENTS

 

 

-i-

 

-ii-

Schedules

 

 

Exhibits

 

 

-iii-

REVOLVING CREDIT AGREEMENT

 

THIS REVOLVING CREDIT AGREEMENT (this “ Agreement ”) is made and entered into as of December 16, 2005, by and between NBC CAPITAL CORPORATION, a Mississippi corporation (the “ Borrower ”) and SUNTRUST BANK, a Georgia banking corporation (the “ Lender ”).

 

W I T N E S S E T H:

 

WHEREAS, the Borrower has requested the Lender, and the Lender has agreed, subject to the terms and conditions of this Agreement, to establish a $30,000,000, two-year revolving credit facility in favor of the Borrower;

 

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

 

ARTICLE I

 

DEFINITIONS; CONSTRUCTION

 

Section 1.1. Definitions . In addition to the other terms defined herein, the following terms used herein shall have the meanings herein specified (to be equally applicable to both the singular and plural forms of the terms defined):

 

“ Affiliate” shall mean, as to any Person, any other Person that directly, or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person.

 

“ Applicable Margin” shall mean 1.25%.

 

“ Appropriate Proceedings ” shall mean commencement and maintenance of a proper suit or action in a court of competent jurisdiction or proper proceeding or hearing in front of the appropriate regulatory or administrative agency having jurisdiction over the matter in question.

 

“ Availability Period” shall mean the period from the Closing Date to the Commitment Termination Date.

 

“ Base Rate” shall mean the higher of (i) the per annum rate which the Lender publicly announces from time to time to be 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 (0.50%) per annum. The Lender’s prime lending rate is a reference rate and does not necessarily represent the lowest or best rate charged to customers. The Lender may make commercial loans or other loans at rates of interest at, above or below the Lender’s prime lending rate. The Lender’s prime lending rate is a floating rate of interest. Each change in the Lender’s prime lending rate shall be effective from and including the date such change is publicly announced as being effective.

 

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“ Base Rate Loan” when used in reference to any Revolving Loan, refers to whether such Revolving Loan bears interest at a rate determined by reference to the Base Rate.

 

“ Business Day” shall mean (i) any day other than a Saturday, Sunday or other day on which commercial banks in Atlanta, Georgia are authorized or required by law to close and (ii) if such day relates to a borrowing or continuation of, a payment or prepayment of principal or interest on, or an Interest Period for, a LIBOR Loan or a notice with respect thereto, any day on which dealings in Dollars are carried on in the London interbank market.

 

“ Cadence ” shall mean Cadence Bank, N.A., a national banking association.

 

“ Call Report ” shall mean the “Consolidated Reports of Condition and Income” (FFIEC Form 031 or 041 or any successor form of the Federal Financial Institutions Examination Council).

 

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

 

“ Change in Control ” shall mean (a) with respect to the Borrower, the occurrence of one or more of the following events: (i) 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 or (ii) occupation of a majority of the seats (other than vacant seats) on the board of directors of the Borrower by Persons who were neither (A) nominated by the current board of directors or (B) appointed by directors so nominated, or (b) the Borrower shall own, directly or indirectly, less than 100% of the voting stock of any Financial Institution Subsidiary (other than First Commercial).

 

“ Change in Law” shall mean (i) the adoption of any applicable law, rule or regulation after the date of this Agreement, (ii) any change in any applicable law, rule or regulation, or any change in the interpretation or application thereof, by any Governmental Authority after the date of this Agreement, or (iii) compliance by the Lender (or for purposes of Section 2.10(b ), by the Lender’s holding company, if applicable) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement.

 

“ Closing Date” shall mean the date on which the conditions precedent set forth in Section 3.1 and Section 3.2 have been satisfied or waived in accordance with Section 9.2 .

 

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“ Code” shall mean the Internal Revenue Code of 1986, as amended an in effect from time to time.

 

“ Commitment Termination Date” shall mean the earliest of (i) December 16, 2007, (ii) the date on which the Revolving Commitment is terminated pursuant to Section 2.3 and (iii) the date on which all amounts outstanding under this Agreement have been declared or have automatically become due and payable (whether by acceleration or otherwise).

 

“ Control” shall mean the power, directly or indirectly, either to (i) vote 5% or more of securities having ordinary voting power for the election of directors (or persons performing similar functions) of a Person or (ii) direct or cause the direction of the management and policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. The terms “ Controlling ”, “ Controlled by ”, and “ under common Control with ” have meanings correlative thereto.

 

“ Default” shall mean any condition or event that, with the giving of notice or the lapse of time or both, would constitute an Event of Default.

 

“ Default Interest ” shall have the meaning set forth in Section 2.5(b ).

 

“ Dollar(s)” and the sign “ $ ” shall mean lawful money of the United States of America.

 

“ Environmental Laws ” shall mean all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by or with any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, Release or threatened Release of any Hazardous Material or to health and safety matters.

 

“ Environmental Liability ” shall mean any liability, contingent or otherwise (including any liability for damages, costs of environmental investigation and remediation, costs of administrative oversight, fines, natural resource damages, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) any actual or alleged violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) any actual or alleged exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

 

“ ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute.

 

“ ERISA Affiliate” shall mean any trade or business (whether or not incorporated), which, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for the purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

 

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“ ERISA Event ” shall mean (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator appointed by the PBGC of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.

 

“ Event of Default” shall have the meaning provided in Article VIII.

 

“FDIC” shall mean the Federal Deposit Insurance Corporation.

 

“ Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards, if necessary, to the next 1/100 ^th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with member banks of the Federal Reserve System arranged by Federal funds brokers, as published by the Federal Reserve Bank of New York on the next succeeding Business Day or if such rate is not so published for any Business Day, the Federal Funds Rate for such day shall be the average rounded upwards, if necessary, to the next 1/100th of 1% of the quotations for such day on such transactions received by the Lender from three Federal funds brokers of recognized standing selected by the Lender.

 

“ Financial Institution Subsidiary” shall mean each of Cadence and each other Subsidiary hereafter formed or acquired that is a regulated financial institution.

 

“ First Commercial ” shall mean First Commercial Bank, a Mississippi banking corporation, having its principal place of business in Jackson, Mississippi.

 

“ Fiscal Quarter” shall mean each fiscal quarter (including the fiscal quarter at the fiscal year-end) of the Borrower and its Subsidiaries.

 

“ FR Report Y-9C ” shall mean the “Consolidated Financial Statements for Bank Holding Companies-FR Y-9C” submitted by the Borrower as required by Section 5(c) of the Bank Holding Company Act (12 U.S.C. 1844) and Section 225.5(b) of Regulation Y [12 CFR 225.5(b)], or any successor or similar replacement report.

 

“ FR Report Y9-LP ” shall mean the “Parent Company Only Financial Statements for Large Bank Holding Companies-FR Y-9LP” submitted by the Borrower as required by Section 5(c) of the Bank Holding Company Act (12 U.S.C. 1844) and Section 225.5(b) of Regulation Y [12 CFR 225.5(b)], or any successor or similar replacement report.

 

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“ GAAP ” shall mean generally accepted accounting principles in the United States applied on a consistent basis and subject to the terms of Section 1.2 .

 

“ Governmental Authority ” shall mean the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

 

“ Hazardous Materials ” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

 

“ Hedging Agreements ” shall mean interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts, foreign exchange contracts (forward and/or spot), commodity agreements and other similar agreements or arrangements designed to protect against fluctuations in interest rates, currency values or commodity values.

 

“ Indebtedness ” of any Person shall mean, without duplication (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all 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), (iv) all obligations of such Person under any conditional sale or other title retention agreement(s) relating to property acquired by such Person, (v) all obligations of such Person under capital leases, (vi) all obligations, contingent or otherwise, of such Person in respect of letters of credit, acceptances or similar extensions of credit, (vii) all guarantees by such Person of Indebtedness of others, (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 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) all net obligations incurred by such Person under Hedging Agreements.

 

“ Interest Period” shall mean, with respect to any LIBOR Loan, a period of one, two or three months, as the Borrower may request; provided , that:

 

(i) the initial Interest Period for any such LIBOR Loan shall commence on the date of such Loan and each Interest Period occurring thereafter in respect of such LIBOR Loan shall commence on the day on which the next preceding Interest Period expires;

 

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(ii) if any Interest Period would otherwise end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day, unless such Business Day falls in another calendar month, in which case such Interest Period would end on the next preceding Business Day;

 

(iii) any Interest Period which begins on the last Business Day of a calendar month or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period shall end on the last Business Day of such calendar month; and

 

(iv) no Interest Period may extend beyond the Commitment Termination Date.

 

“ LIBOR ” shall mean, for any applicable Interest Period with respect to any LIBOR Loan, (i) the rate per annum equal to the offered rate for deposits in U.S. dollars for a period equal to such Interest Period appearing on that page of Bloomberg reporting service, or such similar service as determined by the Bank, that displays British Bankers’ Association interest settlement rates for deposits in U.S. Dollars, as of 11:00 a.m. (London, England time) two (2) Business Days prior to the first day of such Interest Period; provided , that if no such offered rate appears on such page, the rate used will be the per annum rate of interest determined by the Bank to be the rate at which U.S. dollar deposits for such Interest Period are offered to the Bank two (2) Business Days preceding the first day of such Interest Period by leading banks in the London Inter-Bank Market as of 10:00 a.m. (Atlanta, Georgia time), for delivery on the first day of such Interest Period, for the number of days comprised therein and in an amount comparable to the amount of such LIBOR Loan, divided by (ii) a percentage equal to 1.00 minus the maximum reserve percentages (including any emergency, supplemental, special or other marginal reserves) expressed as a decimal (rounded upward to the next 1/100th of 1%) in effect on any day to which the Bank is subject with respect to any LIBOR loan pursuant to regulations issued by the Board of Governors of the Federal Reserve System with respect to eurocurrency funding (currently referred to as “eurocurrency liabilities” under Regulation D). This percentage will be adjusted automatically on and as of the effective date of any change in any reserve percentage.

 

“ LIBOR Loan” when used in reference to any Revolving Loan, refers to whether such Revolving Loan bears interest at a rate determined by reference to LIBOR.

 

“ Lien ” shall mean any mortgage, pledge, security interest, lien (statutory or otherwise), charge, encumbrance, hypothecation, assignment, deposit arrangement, or other arrangement having the practical effect of the foregoing or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having the same economic effect as any of the foregoing).

 

“ Loan Documents ” shall mean, collectively, this Agreement, the Revolving Credit Note, the Pledge Agreement, any Hedging Agreement entered into with Lender in connection with the Indebtedness under this Agreement or the Revolving Credit Note and any and all other instruments, agreements, documents and writings executed in connection with any of the foregoing.

 

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“ Material Adverse Effect ” shall mean, any event, act, condition or occurrence of whatever nature (including any adverse determination in any litigation, arbitration, or governmental investigation or proceeding), whether singly or in conjunction with any other event or events, act or acts, condition or conditions, occurrence or occurrences whether or not related, which results in a material adverse change in, or a material adverse effect on, (i) the business, results of operations, financial condition, assets, liabilities or prospects of the Borrower and of the Borrower and its Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform any of its obligations under the Loan Documents, (iii) the rights and remedies of the Lender under any of the Loan Documents or (iv) the legality, validity or enforceability of any of the Loan Documents.

 

“ Multiemployer Plan ” shall have the meaning set forth in Section 4001(a)(3) of ERISA.

 

“Nonperforming Assets” shall mean the sum of (a) Nonperforming Loans, (b) nonaccrual investment securities and (c) Other Real Estate Owned (determined in accordance with, and as set forth on, Borrower’s FR Report Y-9C).

 

“Nonperforming Loans” shall mean the sum of (a) nonaccrual loans and lease financing receivables, (b) loans and lease financing receivables that are contractually past due 90 days or more as to interest or principal and are still accruing interest and (c) loans for which the terms have been modified due to a deterioration in the financial position of the borrower (determined in accordance with, and as set forth on, Borrower’s FR Report Y-9C).

 

“ Notice of Borrowing ” shall have the meaning as set forth in Section 2.2 .

 

“ Obligations ” shall mean all amounts owing by the Borrower to the Lender pursuant to or in connection with this Agreement or any other Loan Document, including without limitation, all principal, interest (including any interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), all reimbursement obligations, all net obligations under Hedging Agreements, fees, expenses, indemnification and reimbursement payments, costs and expenses (including all fees and expenses of counsel to the Lender incurred pursuant to this Agreement or any other Loan Document), whether direct or indirect, absolute or contingent, liquidated or unliquidated, now existing or hereafter arising hereunder or thereunder, together with all renewals, extensions, modifications or refinancings thereof.

 

“ Other Real Estate Owned ” shall mean the sum of (a) real estate acquired in satisfaction of debts previously contracted and (b) other real estate owned, as set forth on Schedule HC-M of Borrower’s FR Report Y-9C.

 

“ Participant ” shall have the meaning set forth in Section 9.4(c ).

 

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“ Payment Office ” shall mean the office of the Lender located at 303 Peachtree Street, Atlanta, Georgia 30308, or such other location as to which the Lender shall have given written notice to the Borrower.

 

“ PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA, and any successor entity performing similar functions.

 

“ Permitted Encumbrances ” shall mean

 

(i) Liens imposed by law for taxes not yet due or which are being contested in good faith by Appropriate Proceedings and with respect to which adequate reserves are being maintained in accordance with GAAP or as to which the existence of such Liens would not have a Material Adverse Effect;

 

(ii) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other Liens imposed by law created in the ordinary course of business for amounts not yet due or which are being contested in good faith by Appropriate Proceedings and with respect to which adequate reserves are being maintained in accordance with GAAP;

 

(iii) pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations;

 

(iv) deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;

 

(v) judgment and attachment liens not giving rise to an Event of Default or Liens created by or existing from any litigation or legal proceeding that are currently being contested in good faith by Appropriate Proceedings and with respect to which adequate reserves are being maintained in accordance with GAAP as to which the existence of such liens would not have a Material Adverse Effect; and

 

(vi) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or materially interfere with the ordinary conduct of business of the Borrower and its Subsidiaries taken as a whole;

 

provided , that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.

 

“ Person ” shall mean any individual, partnership, firm, corporation, association, joint venture, limited liability company, trust or other entity, or any Governmental Authority.

 

“ Plan ” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code

 

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or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

 

“ Pledge Agreement ” shall mean (i) the Pledge Agreement dated as of the Closing Date to be executed in favor of the Lender by the Borrower and (ii) any other Pledge Agreement executed by the Borrower to secure the Obligations, in each case as amended, modified, restated or supplemented from time to time.

 

“ Regulation D ” shall mean Regulation D of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor regulations.

 

“ Release ” means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into the environment (including ambient air, surface water, groundwater, land surface or subsurface strata) or within any building, structure, facility or fixture.

 

“ Responsible Officer ” shall mean any of the president, the chief executive officer, the chief operating officer, the chief financial officer, the treasurer, the chief accounting officer or a vice president of the Borrower or such other representative of the Borrower as may be designated in writing by any one of the foregoing with the consent of the Lender; and, with respect to the financial covenants only, the chief executive office, chief financial officer or the treasurer of the Borrower.

 

“ Revolving Commitment” shall mean the obligation of the Lender to make Revolving Loans to the Borrower in an aggregate principal amount not exceeding $30,000,000 at any time outstanding.

 

“ Revolving Credit Note ” shall mean a promissory note of the Borrower payable to the order of the Lender in the principal amount of the Revolving Commitment, in substantially the form of Exhibit A .

 

“ Revolving Loan ” shall mean a loan made by the Lender to the Borrower under its Revolving Commitment.

 

“ Subsidiary ” shall mean, with respect to any Person (the “ parent ”), any corporation, partnership, joint venture, limited liability company, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, partnership, joint venture, limited liability company, association or other entity (i) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power, or in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, Controlled or held, or (ii) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. Unless otherwise indicated, all references to “Subsidiary” hereunder shall mean a Subsidiary of the Borrower.

 

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“ Synthetic Lease ” of any Person shall mean (a) a lease designed to have the characteristics of a loan for federal income tax purposes while obtaining operating lease treatment for financial accounting purposes, or (b) an agreement for the use or possession of property creating obligations that are not required to appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person would be characterized by a court of competent jurisdiction as indebtedness of such Person.

 

“ Tangible Assets” shall mean, as of any date, (i) the total assets of the Borrower and its Subsidiaries that would be reflected on the Borrower’s consolidated balance sheet as of such date prepared in accordance with GAAP, after eliminating all amounts properly attributable to minority interests, if any, in the stock and surplus of Subsidiaries, minus (ii) the net book amount of all assets of the Borrower and its Subsidiaries that would be classified as intangible assets on a consolidated balance sheet of the Borrower as of such date prepared in accordance with GAAP.

 

“ Tangible Equity” shall mean, as of any date, the Tangible Assets of the Borrower and its Subsidiaries that would be reflected on the Borrower’s consolidated balance sheet as of such date prepared in accordance with GAAP, minus the total liabilities of the Borrower and its Subsidiaries that would be reflected on the Borrower’s consolidated balance sheet as of such date prepared in accordance with GAAP.

 

“Tangible Equity Ratio” shall mean, as of any date, the quotient obtained by dividing Tangible Equity by Tangible Assets.

 

“ Total Loans” shall mean for the Borrower on a consolidated basis the line item “Loans net of unearned income” set forth on the Borrower’s consolidated balance sheet delivered pursuant to Section 5.1(a ) and ( b ).

 

“ Type ”, when used in reference to a Revolving Loan, refers to whether such Revolving Loan is a LIBOR Loan or a Base Rate Loan.

 

“ Withdrawal Liability ” shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

 

Section 1.2. Accounting Terms and Determination . Unless otherwise defined or specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared, in accordance with GAAP as in effect from time to time, applied on a basis consistent (except for such changes approved by the Borrower’s independent public accountants) with the most recent audited consolidated financial statement of the Borrower delivered pursuant to Section 5.1(a ); provided , that if the Borrower notifies the Lender that the Borrower wishes to amend any covenant in Article VI to eliminate the effect of any change in GAAP on the operation of such covenant (or if the Lender notifies the Borrower that it wishes to amend Article VI for such purpose), then the Borrower’s compliance with such covenant shall be determined on the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such covenant is amended in a manner satisfactory to the Borrower and the Lender.

 

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Section 1.3. Terms Generally . The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the word “to” means “to but excluding”. Unless the context requires otherwise (i) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as it was originally executed or as it may from time to time be amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (ii) any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns, (iii) the words “hereof”, “herein” and “hereunder” and words of similar import shall be construed to refer to this Agreement as a whole and not to any particular provision hereof, (iv) all references to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles, Sections, Exhibits and Schedules to this Agreement and (v) all references to a specific time shall be construed to refer to the time in the city and state of the Lender’s principal office, unless otherwise indicated.

 

ARTICLE II

 

AMOUNT AND TERMS OF THE REVOLVING COMMITMENT

 

Section 2.1. Revolving Loans and Revolving Credit Note .

 

(a) Subject to the terms and conditions set forth herein, the Lender agrees to make Revolving Loans to the Borrower, from time to time during the Availability Period, in an aggregate principal amount outstanding at any time not to exceed the Revolving Commitment. During the Availability Period, the Borrower shall be entitled to borrow, prepay and reborrow Revolving Loans in accordance with the terms and conditions of this Agreement; provided , that the Borrower may not borrow or reborrow should there exist a Default or Event of Default.

 

(b) The Borrower’s obligation to pay the principal of, and interest on, Revolving Loans shall be evidenced by the records of the Lender and by the Revolving Credit Note. The entries made in such records and/or on the schedule annexed to the Revolving Credit Note shall be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded; provided , that the failure or delay of the Lender in maintaining or making entries into any such record or on such schedule or any error therein shall not in any manner affect the obligation of the Borrower to repay the Revolving Loans (both principal and unpaid accrued interest) in accordance with the terms of this Agreement.

 

Section 2.2. Procedure for Revolving Loans . The Borrower shall give the Lender written notice (or telephonic notice promptly confirmed in writing) of each Revolving Loan substantially in the form of Exhibit 2.2 (a “ Notice of Borrowing ”) prior to 11:00 a.m.

 

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Eastern time two Business Days prior to on which a Revolving Loan is being requested. Each Notice of Revolving Borrowing shall be irrevocable and shall specify: (i) the principal amount of the Revolving Loan, (ii) the proposed date of such Revolving Loan (which shall be a Business Day), (iii) the Type of such Revolving Loan, (iv) in the case of a LIBOR Loan, the duration of the initial Interest Period applicable thereto (subject to the provisions of the definition of Interest Period).), and (v) its purpose. Each Revolving Loan shall consist entirely of Base Rate Loans or LIBOR Loans, as the Borrower may request. The aggregate principal amount of each LIBOR Loan shall be not less than $5,000,000 or a larger multiple of $1,000,000, and the aggregate principal amount of each Base Rate Loan shall not be less than $1,000,000 or a larger multiple of $100,000. At no time shall the total number of LIBOR Loans outstanding at any time exceed five. Upon the satisfaction of the applicable conditions set forth in Article III hereof, the Lender will make the proceeds of each Revolving Loan available to the Borrower at the Payment Office on the date specified in the applicable Notice of Borrowing by crediting an account maintained by the Borrower with the Lender or at the Borrower’s option, by effecting a wire transfer of such amount to an account designated by the Borrower to the Lender.

 

Section 2.3. Optional Reduction and Termination of Revolving Commitment .

 

(a) Unless previously terminated, the Revolving Commitment shall terminate on the Commitment Termination Date.

 

(b) Upon at least two (2) Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) to the Lender (which notice shall be irrevocable), the Borrower may reduce the Revolving Commitment in part or terminate the Revolving Commitment in whole; provided , that (i) any partial reduction pursuant to this Section 2.3 shall be in an amount of at least $500,000 and any larger multiple of $100,000 and (ii) no such reduction shall be permitted which would reduce the Revolving Commitment (after giving effect thereto and any concurrent prepayments made under Section 2.4 ) to an amount less than the outstanding Revolving Loans.

 

Section 2.4. Repayment and Optional Prepayments of Revolving Loans .

 

(a) The outstanding principal amount of all Revolving Loans shall be due and payable (together with accrued and unpaid interest thereon) on the Commitment Termination Date.

 

(b) The Borrower shall have the right at any time and from time to time to prepay any Revolving Loan, in whole or in part, without premium or penalty, by giving irrevocable written notice (or telephonic notice promptly confirmed in writing) to the Lender no later than (i) in the case of prepayment of any LIBOR Loan, 11:00 a.m. Eastern time not less than two (2) Business Days prior to any such prepayment and (ii) in the case of any prepayment of any Base Rate Loan, not less than one (1) Business Day prior to the date of such prepayment. Each such notice shall be irrevocable and shall specify the proposed date of such prepayment and the principal amount of each Revolving Loan or portion thereof to be prepaid. Such amount shall be due and payable on the date designated in such notice, together with accrued interest to such date on the amount so prepaid in accordance with; provided , that if a LIBOR Loan is

 

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prepaid on a date other than the last day of an Interest Period applicable thereto, the Borrower shall also pay all amounts required pursuant to Section 2. 11. Each partial prepayment of any LIBOR Loan shall be in an amount that would be permitted in the case of an advance of a Revolving Loan of the same Type pursuant to Section 2.2 .

 

Section 2.5. Interest on Loans .

 

(a) The Borrower shall pay interest on each Base Rate Loan at the Base Rate in effect from time to time and on each LIBOR Loan at LIBOR for the applicable Interest Period in effect for such Loan, plus the Applicable Margin per annum.

 

(b) While an Event of Default exists or after acceleration, at the option of the Lender, the Borrower shall pay interest (“ Default Interest ”) with respect to all LIBOR Loans at the rate otherwise applicable for the then-current Interest Period plus an additional 2% per annum until the last day of such Interest Period, and thereafter, and with respect to all Base Rate Loans and all other Obligations hereunder (other than Revolving Loans), at the Base Rate, plus 2% per annum.

 

(c) Interest on the principal amount of all Revolving Loans shall accrue from and including the date such Revolving Loans are made to but excluding the date of any repayment thereof. Interest on all outstanding Base Rate Loans shall be payable quarterly in arrears on the last day of each March, June, September and December, commencing on the first such payment date next succeeding the initial Revolving Loan, and on the Commitment Termination. Interest on all outstanding LIBOR Loans shall be payable on the last day of each Interest Period applicable thereto, and on the Commitment Termination Date or the Maturity Date, as the case may be. Interest on any Revolving Loan which is converted into a Revolving Loan of another Type or which is repaid or prepaid shall be payable on the date of such conversion or on the date of any such repayment or prepayment (on the amount repaid or prepaid) thereof. All Default Interest shall be payable on demand.

 

(d) Each Revolving Loan initially shall be of the Type specified in the applicable Notice of Revolving Borrowing, and in the case of a LIBOR Loan, shall have an initial Interest Period as specified in such Notice of Revolving Borrowing. Thereafter, the Borrower may elect to convert any Revolving Loan into a different Type or to continue any Revolving Loan, and in the case of a LIBOR Loan, may elect Interest Periods therefor, all as provided in this Section.

 

(e) To make an election pursuant to this Section, the Borrower shall give the Lender prior written notice (or telephonic notice promptly confirmed in writing) of each Revolving Loan (a “ Notice of Conversion/Continuation ”) that is to be converted or continued, as the case may be, (1) prior to 10:00 a.m. Eastern time on the same Business Day as the date of a conversion into a Base Rate Loan and (2) prior to 11:00 a.m. Eastern time two (2) Business Days prior to a continuation of or conversion into a LIBOR Loan. Each such Notice of Conversion/Continuation shall be irrevocable and shall specify (i) the Revolving Loan to which such Notice of Continuation/Conversion applies; (ii) the effective date of the election made pursuant to such Notice of Continuation/Conversion, which shall be a Business Day, (iii) whether the resulting Revolving Loan is to be a Base Rate Loan or a LIBOR Loan; and

 

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(iv) if the resulting Revolving Loan is to be a LIBOR Loan, the Interest Period applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of “Interest Period”. If any such Notice of Continuation/Conversion requests a LIBOR Loan but does not specify an Interest Period, the Borrower shall be deemed to have selected an Interest Period of one month. The principal amount of any resulting Loan shall satisfy the minimum borrowing amount for LIBOR Loans and Base Rate Loans set forth in Section 2.2 .

 

(f) If, on the expiration of any Interest Period in respect of any LIBOR Loan, the Borrower shall have failed to deliver a Notice of Conversion/ Continuation, then, unless such Revolving Loan is repaid as provided herein, the Borrower shall be deemed to have elected to convert such Revolving Loan to a Base Rate Loan. No Revolving Loan may be converted into, or continued as, a LIBOR Loan if a Default or an Event of Default exists, unless the Lender shall have otherwise consented in writing. No conversion of any LIBOR Loan shall be permitted except on the last day of the Interest Period in respect thereof.

 

(g) The Lender shall determine each interest rate applicable to the Revolving Loans hereunder and shall promptly notify the Borrower of such rate in writing (or by telephone, promptly confirmed in writing). Any such determination shall be conclusive and binding for all purposes, absent manifest error.

 

Section 2.6. Fees . The Borrower agrees to pay to the Lender a commitment fee, which shall accrue at 0.10% per annum on the daily amount of the unused Revolving Commitment during the Availability Period. Accrued commitment fees shall be payable in arrears on the last day of each March, June, September and December of each year and on the Commitment Termination Date, commencing on the first such date after the Closing Date.

 

Section 2.7. Computation of Interest and Fees . All computations of interest and fees hereunder shall be made on the basis of a year of 360 days for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or fees are payable (to the extent computed on the basis of days elapsed). Each determination by the Lender of an interest amount or fee hereunder shall be made in good faith and, except for manifest error, shall be final, conclusive and binding for all purposes.

 

Section 2.8. Inability to Determine Interest Rates . If prior to the commencement of any Interest Period for any LIBOR Loan, the Lender shall have determined (which determination shall be conclusive and binding upon the Borrower ) that (a) by reason of circumstances affecting the relevant interbank market, adequate means do not exist for ascertaining LIBOR for such Interest Period, or (b) LIBOR does not adequately and fairly reflect the cost to the Lender of making, funding or maintaining its LIBOR Loans for such Interest Period, the Lender shall give written notice (or telephonic notice, promptly confirmed in writing) to the Borrower as soon as practicable thereafter. Until the Lender notifies the Borrower that the circumstances giving rise to such notice no longer exist, (x) the obligation of the Lender to make LIBOR Loans or to continue beyond the then-current Interest Period outstanding Revolving Loans as LIBOR Loans shall be suspended and (y) all such affected Revolving Loans shall be converted into Base Rate Loans on the last day of the then current Interest Period unless the Borrower elects to prepay such Revolving Loans in accordance with this Agreement.

 

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Section 2.9. Illegality . If any Change in Law shall make it unlawful or impossible for the Lender to make, maintain or fund any LIBOR Loan, the Lender shall promptly give notice thereof to the Borrower, whereupon until the Lender notifies the Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lender to make LIBOR Loans, or to continue any outstanding Revolving Loans as LIBOR Loans, shall be suspended. Any new Revolving Loan shall be made as a Base Rate Loan and all then outstanding LIBOR Loans shall be converted to a Base Rate Loan either (x) on the last day of the then current Interest Period if the Lender may lawfully continue to maintain such LIBOR Loans to such date or (y) immediately if the Lender shall determine that it may not lawfully continue to maintain such LIBOR Loans to such date.

 

Section 2.10. Increased Costs .

 

(a) If any Change in Law shall:

 

(i) impose, modify or deem applicable any reserve, special deposit or similar requirement that is not otherwise included in the determination of LIBOR hereunder against assets of, deposits with or for the account of, or credit extended by, the Lender (except any such reserve requirement reflected in the calculation of LIBOR); or

 

(ii) impose on the Lender or the eurodollar interbank market any other condition affecting this Agreement or any LIBOR Loans made by the Lender; and the result of the foregoing is to increase the cost to the Lender of making, continuing or maintaining a LIBOR Loan or to reduce the amount received or receivable by the Lender