FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
[X] Quarterly report pursuant to section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended May 9, 1998, or
[ ] Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from _______ to ________.
Commission file number 1-10714
AUTOZONE, INC.
(Exact name of registrant as specified in its charter)
Nevada 62-1482048
(State or other jurisdiction of (I.R.S.Employer
incorporation or organization) Identification No.)
123 South Front Street
Memphis, Tennessee 38103
(Address of principal executive offices) (Zip Code)
(901) 495-6500
Registrant's telephone number, including area code
(not applicable)
Former name, former address and former fiscal year, if changed since last
report.
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter periods that
the registrant was required to file such reports), and (2) has been subject
to such filing requirements for the past 90 days. Yes [X] No [ ]
APPLICABLE ONLY TO CORPORATE ISSUERS
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practical date.
Common Stock, $.01 Par Value - 152,734,031 shares as of June 19, 1998.
AUTOZONE, INC.
CONDENDSED CONSOLIDATED BALANCE SHEETS
MAY 9, AUG. 30,
1998 1997
----------- -----------
(UNAUDITED)
(IN THOUSANDS)
ASSETS
Current Assets
Cash and cash equivalents $ 5,869 $ 4,668
Accounts receivable 19,304 18,713
Merchandise inventories 768,540 709,446
Prepaid expenses 28,715 20,987
Deferred income taxes 30,851 24,988
----------- -----------
Total current assets 853,279 778,802
Property and equipment:
Property and equipment 1,569,967 1,336,911
Less accumulated depreciation
and amortization (326,379) (255,783)
----------- -----------
1,243,588 1,081,128
Other assets:
Cost in excess of net assets
acquired 55,733 16,570
Deferred income taxes 15,771 4,339
Other assets 42,317 3,178
----------- -----------
113,821 24,087
----------- -----------
$ 2,210,688 $ 1,884,017
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 466,119 $ 449,793
Accrued expenses 143,182 122,580
Income taxes payable 25,338 20,079
----------- -----------
Total current liabilities 634,639 592,452
Long-term debt 338,000 198,400
Other liabilities 13,325 17,957
Stockholders' equity 1,224,724 1,075,208
------------ ------------
$ 2,210,688 $ 1,884,017
============ ============
SEE NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
AUTOZONE, INC.
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
TWELVE WEEKS ENDED THIRTY-SIX WEEKS ENDED
----------------------- -------------------------
MAY 9, MAY 10, MAY 9, MAY 10,
1998 1997 1998 1997
----------- ---------- ------------ -----------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
Net sales $ 743,661 $ 637,895 $ 2,026,032 $ 1,745,052
Cost of sales, including warehouse
and delivery expenses 432,581 368,920 1,180,830 1,008,823
Operating, selling, general and
administrative expenses 220,623 192,200 618,015 548,339
----------- ----------- ------------ -----------
Operating profit 90,457 76,775 227,187 187,890
Interest expense 4,217 2,672 9,747 5,955
----------- ----------- ------------ -----------
Income before income taxes 86,240 74,103 217,440 181,935
Income taxes 32,300 28,000 81,600 68,450
----------- ----------- ------------ -----------
Net income $ 53,940 $ 46,103 $ 135,840 $ 113,485
=========== =========== ============ ===========
Weighted average shares
for basic earnings per share 152,366 150,879 152,042 150,548
Effect of dilutive stock
options 1,958 1,723 1,907 1,841
----------- ----------- ------------ -----------
Adjusted weighted average
shares for diluted earnings
per share 154,324 152,602 153,949 152,389
=========== =========== ============ ===========
Basic earnings per share $ 0.35 $ 0.31 $ 0.89 $ 0.75
=========== =========== ============ ===========
Diluted earnings per share $ 0.35 $ 0.30 $ 0.88 $ 0.74
=========== =========== ============ ===========
SEE NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
AUTOZONE, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
THIRTY-SIX WEEKS ENDED
--------------------------
MAY 9, MAY 10,
1998 1997
----------- -----------
(IN THOUSANDS)
Cash flows from operating activities:
Net income $ 135,840 $ 113,485
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 62,483 53,598
Net increase in merchandise inventories (35,211) (194,675)
Net increase in current liabilities 5,585 90,576
Other - net (21,430) (18,424)
----------- -----------
Net cash provided by operating activities 147,267 44,560
Cash flows from investing activities:
Cash outflows for property
and equipment, net (212,023) (170,387)
Acquisitions of businesses, net of cash (87,319) -
----------- -----------
Net cash used in investing activities (299,342) (170,387)
Cash flows from financing activities:
Net proceeds from debt 139,600 115,300
Purchase of Company stock (5,311) -
Net proceeds from sale of Common Stock 18,987 11,461
----------- -----------
Net cash provided by financing activities 153,276 126,761
Net increase in cash and cash equivalents 1,201 934
Cash and cash equivalents at beginning of period 4,668 3,904
----------- -----------
Cash and cash equivalents at end of period $ 5,869 $ 4,838
=========== ===========
SEE NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE A--BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements
have been prepared in accordance with generally accepted accounting
principles for interim financial information and with instructions to Form
10-Q and Article 10 of Regulation S-X. Accordingly, they do not include
all of the information and footnotes required by generally accepted
accounting principles for complete financial statements. In the opinion of
management, all adjustments (consisting of normal recurring accruals)
considered necessary for a fair presentation have been included. Operating
results for the thirty-six weeks ended May 9, 1998, are not necessarily
indicative of the results that may be expected for the fiscal year ending
August 29, 1998. For further information, refer to the financial
statements and footnotes thereto included in the Company's annual report on
Form 10-K for the year ended August 30, 1997.
NOTE B--INVENTORIES
Inventories are stated at the lower of cost or market using the last-
in, first-out (LIFO) method. An actual valuation of inventory under the
LIFO method can be made only at the end of each year based on the inventory
levels and costs at that time. Accordingly, interim LIFO calculations must
necessarily be based on management's estimates of expected year-end
inventory levels and costs.
NOTE C--DEBT
On February 10, 1998, the Company increased its five-year unsecured
revolving credit facility by $75 million for a total of $350 million which
extends until December 2001. The rate of interest payable under the
agreement is a function of the London Interbank Offered Rate (LIBOR), or
the lending bank's base rate (as defined in the agreement), or a
competitive bid rate, at the option of the Company. At May 9, 1998, the
Company's borrowings under this agreement were $338 million and the
weighted average interest rate was 5.8%. The unsecured revolving credit
agreement contains a covenant limiting the amount of debt the Company may
incur relative to its total capitalization.
The Company also has a negotiated rate unsecured revolving credit
agreement totaling $25 million which extends until March 26, 1999.
Additionally, on February 23, 1998, the Company acquired a 364-day credit
facility with a group of banks for $150 million. The rate of interest
payable under these agreements is a function of the London Interbank
Offered Rate (LIBOR), or the lending bank's base rate (as defined in the
agreement) at the option of the Company. There were no amounts outstanding
under this agreement.
NOTE D-ACQUISITIONS
On February 17, 1998, the Company acquired 100% of the voting stock of
ADAP, Inc. (Auto Palace) for $55 million in a transaction accounted for as
a purchase.
On May 1, 1998, the Company acquired the assets and liabilities of
TruckPro, L.P. (TruckPro) in a transaction accounted for as a purchase.
TruckPro, which specializes in the sale of heavy duty trucks parts,
operates 43 stores in 14 states.
The purchase price for Auto Palace and TruckPro has been preliminarily
allocated in the condensed consolidated financial statements and the final
adjustment may differ from the preliminary allocation.
NOTE E--STOCKHOLDERS' EQUITY
In January 1998, the Company announced Board approval to purchase up
to $100 million of its common stock in the open market.
The Company presents basic and dilutive earnings per share (EPS)
according to guidance established in Statement of Financial Accounting
Standards (SFAS) No. 128, "Earnings Per Share". SFAS No. 128 requires dual
presentation of basic EPS on the face of all statements of earnings for
periods ending after December 15, 1997. Basic EPS is computed as net
earnings divided by the weighted-average number of common shares
outstanding for the period. Diluted EPS reflects the potential dilution
that could occur from common shares issuable through stock-based
compensation including stock options.
NOTE F--CONTINGENCIES
The Company was a defendant in a purported class action entitled "Joe
C. Proffitt, Jr., on behalf of himself and all others similarly situated,
vs. AutoZone, Inc., and AutoZone Stores, Inc.," filed in the Circuit Court
for Jefferson County, Tennessee, on or about October 17, 1997. AutoZone
Stores, Inc., is a wholly-owned subsidiary of the Company. In the
complaint, which was similar to other class action complaints filed against
several other retailers of aftermarket automotive batteries, the plaintiff
alleges that the Company sold "old," "used," or "out of warranty"
automotive batteries to customers as if the batteries were new, and
purported to state causes of action for unfair or deceptive acts or
practices, breach of contract, breach of the duty of good faith and fair
dealing, intentional misrepresentation, fraudulent concealment, civil
conspiracy, and unjust enrichment. The plaintiffs were seeking an
accounting of all moneys wrongfully received by the Company, compensatory
and punitive damages, as well as plaintiffs' costs. On May 21, 1998, on the
plaintiff's motion, the court dismissed the case without prejudice.
The Company is also a party to various claims and lawsuits arising in
the ordinary course of business. The Company does not believe that these
claims and lawsuits, individually or in the aggregate, will have a material
adverse effect on its results of operations or financial condition.
NOTE G-SUBSEQUENT EVENTS
On May 11, 1998, the Company announced it had reached a definitive
agreement to purchase the outstanding common shares of Chief Auto Parts
Inc. (Chief) for approximately $75 million. Additionally, the Company
will assume approximately $205 million in debt. Chief operates
over 500 auto parts stores primarily in California and Texas. Subject to
the satisfactory completion of certain conditions, the Company anticipates
closing in the fiscal fourth quarter.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
TWELVE WEEKS ENDED MAY 9, 1998, COMPARED TO
TWELVE WEEKS ENDED MAY 10, 1997
Net sales for the twelve weeks ended May 9, 1998 increased by $105.8
million, or 16.6%, over net sales for the comparable period of fiscal 1997.
This increase was due to a comparable store sales increase of 2%, (which
was primarily due to sales growth in the Company's newer stores and the
added sales of the Company's commercial program), and increases in net
sales for stores opened since the beginning of fiscal 1997. At May 9, 1998
the Company had 2,001 stores in operation compared with 1,578 stores at May
10, 1997.
Gross profit for the twelve weeks ended May 9, 1998, was $311.1
million, or 41.8% of net sales, compared with $269.0 million, or 42.2% of
net sales, during the comparable period for fiscal 1997. The decrease in
the gross profit percentage was due primarily to a decrease in battery
gross margin and to lower gross margins for commodities such as Freon and
antifreeze.
Operating, selling, general and administrative expenses for the twelve
weeks ended May 9, 1998 increased by $28.4 million over such expenses for
the comparable period for fiscal 1997, and decreased as a percentage of net
sales from 30.1% to 29.7%. The decrease in the expense ratio was due
primarily to a decrease in net advertising and to a sales increase in the
Company's commercial program, which resulted in favorable commercial
payroll leverage.
The Company's effective income tax rate was 37.5% of pre-tax income
for the twelve weeks ended May 9, 1998 and 37.8% for the twelve weeks ended
May 10, 1997.
THIRTY-SIX WEEKS ENDED MAY 9, 1998, COMPARED TO
THIRTY-SIX WEEKS ENDED MAY 10, 1997
Net sales for the thirty-six weeks ended May 9, 1998 increased by
$281.0 million, or 16.1%, over net sales for the comparable period of
fiscal 1997. This increase was due to a comparable store sales increase of
4%, (which was primarily due to sales growth in the Company's newer stores
and the added sales of the company's Commercial program), and increases in
net sales for stores opened since the beginning of fiscal 1997.
Gross profit for the thirty-six weeks ended May 9, 1998, was $845.2
million, or 41.7% of net sales, compared with $736.2 million, or 42.2% of
net sales, during the comparable period for fiscal 1997. The decrease in
the gross profit percentage was due primarily to lower commodity gross
margins.
Operating, selling, general and administrative expenses for the
thirty-six weeks ended May 9, 1998 increased by $69.7 million over such
expenses for the comparable period for fiscal 1997, and decreased as a
percentage of net sales from 31.4% to 30.5%. The decrease in the expense
ratio was due primarily to sales increases in the Company's commercial
program, which resulted in favorable commercial payroll leverage and to
efficiencies gained with the closings of two call centers in fiscal 1997.
The number of stores participating in the commercial program was 1,323 at
May 9, 1998.
The Company's effective income tax rate was 37.5% of pre-tax income
for the thirty-six weeks ended May 9, 1998 and 37.6% for the thirty-six
weeks ended May 10, 1997.
LIQUIDITY AND CAPITAL RESOURCES
For the thirty-six weeks ended May 9, 1998, net cash of $147.3 million
was provided by the Company's operations versus $44.6 million for the
comparable period of fiscal year 1997. The comparative increase in cash
provided by operations is due primarily to improving inventory turnover.
Capital expenditures for the thirty-six weeks ended May 9, 1998 were
$212 million. The Company anticipates that capital expenditures for fiscal
1998 will be approximately $400 million. The Company completed its
acquisition of 112 Auto Palace stores and 43 TruckPro stores. In addition
to these acquisitions, year-to-date the Company opened 161 net new stores
and 9 replacement stores. Excluding the pending acquisition of Chief, the
Company expects to add approximately 450 new stores including stores
acquired through the Auto Palace and TruckPro acquisitions and
approximately 17 to 20 replacement stores during fiscal 1998.
The Company anticipates that it will rely on internally generated funds to
support a significant portion of its capital expenditures, acquisitions and
working capital requirements; the balance of such requirements will be
funded through borrowings. The Company has an unsecured revolving credit
agreement with a group of banks providing for borrowings in an aggregate
maximum amount of $350 million. At May 9, 1998, the Company had borrowings
outstanding under the credit agreement of $338 million. The Company also
has a negotiated rate unsecured revolving credit agreement totaling $25
million which extends until March 26, 1999. On February 23, 1998, the
Company acquired a 364 day credit facility with a group of banks for $150
million. There were no amounts outstanding under this agreement as of May
9, 1998.
YEAR 2000 CONVERSION
The Company has dedicated personnel to implement a detailed plan to assure
that the Company's computer systems are able to properly process dates for
January 1, 2000 and beyond. The inventory and assessment phases of the
implementation plan have been substantially completed and the conversion
and testing phases are currently underway. The Company intends to have
all of its systems Year 2000 compliant by December 31, 1998; however,
certain software vendors may not have issued Year 2000 compliant releases
prior to that time. These software releases will be installed and tested as
they become available.
A failure by the Company's vendors or service providers to address all of
their Year 2000 issues may have a material impact upon the Company's
operations. Therefore, the Company has begun contacting its material
vendors and service providers to assess the preparedness of their computer
systems for the Year 2000, and to assess the impact that any lack of
preparedness would have upon the Company.
The costs of conversion of the Company's systems and the assessment of the
Company's vendor's systems are not material.
FORWARD-LOOKING STATEMENTS
Certain statements contained in this quarterly report on Form 10-Q are
forward-looking statements. These statements discuss, among other things,
expected growth, store development and expansion strategy, business
strategies, future revenues and future performance. The forward-looking
statements are subject to risks, uncertainties and assumptions including,
but not limited to competitive pressures, demand for the Company's
products, the market for auto parts, the economy in general, inflation,
consumer debt levels and the weather. Actual results may materially
differ from anticipated results described in these forward-looking
statements.
PART II. OTHER INFORMATION
Item 1. Legal Proceeding
The Company was a defendant in a purported class action entitled "Joe
C. Proffitt, Jr., on behalf of himself and all others similarly situated,
vs. AutoZone, Inc., and AutoZone Stores, Inc.," filed in the Circuit Court
for Jefferson County, Tennessee, on or about October 17, 1997. AutoZone
Stores, Inc., is a wholly-owned subsidiary of the Company. In the
complaint, which was similar to other class action complaints filed against
several other retailers of aftermarket automotive batteries, the plaintiff
alleges that the Company sold "old," "used," or "out of warranty"
automotive batteries to customers as if the batteries were new, and
purported to state causes of action for unfair or deceptive acts or
practices, breach of contract, breach of the duty of good faith and fair
dealing, intentional misrepresentation, fraudulent concealment, civil
conspiracy, and unjust enrichment. The plaintiffs were seeking an
accounting of all moneys wrongfully received by the Company, compensatory
and punitive damages, as well as plaintiffs' costs. On May 21, 1998, on the
plaintiff's motion, the court dismissed the case without prejudice.
The Company is also a party to various claims and lawsuits arising in
the ordinary course of business. The Company does not believe that these
claims and lawsuits, individually or in the aggregate, will have a material
adverse effect on its results of operations or financial condition.
Item 5. Other Information
John E. Moll resigned as a director of the Company effective June 23,
1998.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
The following exhibits are filed as part of this report:
3.1 Articles of Incorporation of AutoZone, Inc. Incorporated by
reference to Exhibit 3.1 to the Form 10-K for the fiscal year ended August
27, 1994.
3.2 Amendment to Articles of Incorporation of AutoZone, Inc., dated
December 16, 1993, to increase its authorized shares of common stock to
200,000,000. Incorporated by reference to Exhibit 3.2 to the Form 10-K for
the fiscal year ended August 27, 1994.
3.3 By-laws of AutoZone, Inc. Incorporated by reference to Exhibit
3.2 to the Registration Statement filed by the Company under the Securities
Act of 1933 (No. 33-45649) (the February 1992 Form S-1.)
4.1 Form of Common Stock Certificate. Incorporated by reference to
Exhibit 4.1 to Pre-Effective Amendment No. 2 to the February 1992 Form S-1.
4.2 Registration Rights Agreement, by and among AutoZone, Inc. and
J. Dale Dawson and Judith S. Dawson dated May 1, 1998.
10.1 Credit Agreement dated as of February 23, 1998 among AutoZone,
Inc. the several lenders from time to time party thereto, and NationsBank,
N.A. as Agent and Suntrust Bank, Nashville, N.A. as Documentation Agent.
27.1 Financial Data Schedule (SEC Use Only)
(b) Reports in Form 8-K
None
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AUTOZONE, INC.
By:/s/ Robert J. Hunt
------------------
Robert J. Hunt
Executive Vice President and
Chief Financial Officer-Customer Satisfaction
(Principal Financial Officer)
By:/s/ Michael E. Butterick
------------------------
Michael E. Butterick
Vice President, Controller-Customer Satisfaction
(Principal Accounting Officer)
Dated: June 23, 1998
EXHIBIT INDEX
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
The following exhibits are filed as part of this report:
3.1 Articles of Incorporation of AutoZone, Inc. Incorporated by
reference to Exhibit 3.1 to the Form 10-K for the fiscal year ended August
27, 1994.
3.2 Amendment to Articles of Incorporation of AutoZone, Inc., dated
December 16, 1993, to increase its authorized shares of common stock to
200,000,000. Incorporated by reference to Exhibit 3.2 to the Form 10-K for
the fiscal year ended August 27, 1994.
3.3 By-laws of AutoZone, Inc. Incorporated by reference to Exhibit
3.2 to the Registration Statement filed by the Company under the Securities
Act of 1933 (No. 33-45649) (the February 1992 Form S-1.)
4.1 Form of Common Stock Certificate. Incorporated by reference to
Exhibit 4.1 to Pre-Effective Amendment No. 2 to the February 1992 Form S-1.
4.2 Registration Rights Agreement, by and among AutoZone, Inc. and
J. Dale Dawson and Judith S. Dawson dated May 1, 1998.
10.1 Credit Agreement dated as of February 23, 1998 among AutoZone,
Inc. the several lenders from time to time party thereto, and NationsBank,
N.A. as Agent and Suntrust Bank, Nashville, N.A. as Documentation Agent.
27.1 Financial Data Schedule (SEC Use Only)
(b) Reports in Form 8-K
None
EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of May 1, 1998 by and among AutoZone, Inc., a Nevada
corporation ("Buyer") and J. Dale Dawson and Judith S. Dawson
(collectively, "Dawson").
RECITALS
A. Dawson owns all of the shares of Dawson Capital Corporation, an
Arkansas corporation, ("DCC"), which owns a general partner's interest in
TruckPro Limited Partnership, an Arkansas limited partnership ("Seller"),
which operates a replacement parts and maintenance, repair and rebuild
service for medium and heavy duty vehicles.
B. Buyer, Seller, TruckZone, Inc., a Nevada corporation
("Acquisition Sub"), DCC, Coral Three Corporation, an Arkansas
Corporation and Truck Pro Parts, Inc., an Arkansas corporation have
entered into a Purchase Agreement dated as of February 27, 1998, (the
"Purchase Agreement"), providing for the purchase by Buyer and
Acquisition Sub of certain assets of Seller.
C. As partial consideration for the sale of the assets of Seller,
Dawson shall receive, indirectly and as tenants in common, 30,000 shares
of common stock of Buyer, par value $.01 per share (the "Common Stock").
In order to induce Dawson to enter into the Purchase Agreement, Buyer has
agreed to provide the registration rights set forth in this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledge, the parties hereby
agree as follows:
Section 1. DEFINITIONS. Terms defined in the Purchase Agreement
are used as therein defined unless otherwise defined in this Agreement.
In addition, the following terms shall have the meaning indicated:
"Commission" means the Securities and Exchange Commission, or any
other federal agency then administering the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, or
any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to
time.
"Registrable Securities" means the shares of Common Stock issued to
Dawson pursuant to the Purchase Agreement (and any capital stock of Buyer
issued as a dividend or other distribution with respect to, or in
exchange for or in replacement of, such shares of Common Stock); PROVIDED
HOWEVER, that once such shares are distributed such shares shall cease to
be Registrable Securities when (i) a registration statement with respect
to the sale of such shares shall have become effective under the
Securities Act and such shares shall have been disposed of in accordance
with such registration statement, (ii) they are distributed or may be
distributed by any holder thereof (along with all of the other
Registrable Securities held by such holder) to the public in any 90-day
period pursuant to Rule 144 (or any successor provision) under the
Securities Act, (iii) any disposition of them shall not require
registration or delivery of a prospectus or qualification of them under
the Securities Act or any similar state law then in force such that any
subsequent holder of such Registrable Securities shall hold such
Registrable Securities free of all transfer restrictions, or (iv) they
shall have ceased to be outstanding.
Section 2. REGISTRATION RIGHTS. If at any time Buyer proposes
to register (other than a registration (1) on Form S-8 or any successor
form thereto; (2) of debt securities of Buyer (3) of Preferred Stock of
Buyer; or (4) of securities for the purpose of consummating any
acquisition by including a registration on Form S-4 (or any successor
form thereto)) for its own account or otherwise any public offering of
shares of its capital stock under the Securities Act, Buyer will give
prompt written notice to Dawson of its intention so to do at least three
(3) business days prior to the filing of the registration statement.
A. In the event of an underwritten public offering:
(1) Buyer's notice shall afford Dawson an opportunity to elect
to include in such filing all or any part of the Registrable Securities.
Dawson shall have five (5) business days after receipt of Buyer's notice
to notify Buyer in writing of the number of shares of the Registrable
Securities which Dawson elects to include in the offering. Upon such
written request, Buyer shall use commercially reasonable efforts to
effect the registration under the Securities Act of all Registrable
Securities which Buyer has been so requested to register to permit
disposition of such Registrable Securities, but only to the extent any
other previously unregistered shares of its capital stock are registered.
(2) The inclusion in such filing of the Registrable Securities
shall be upon the condition that Dawson sell his Registrable Securities
to the underwriters on the same terms and conditions as the Buyer and
other selling holders.
B. In the event of a public offering which is not underwritten:
(1) Dawson shall have five (5) business days after receipt of
the Buyer's notice to notify Buyer in writing of the number of shares of
Registrable Securities that are owned by him which he elects to include
in the offering.
(2) Buyer will use commercially reasonable efforts to prepare
and file with the Commission a registration statement with respect to
such Registrable Securities and shall cause such registration statement
to become effective, to prepare and file with the Commission such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective until the earlier of the sale of all
Registrable Securities covered thereby and the expiration of a period of
nine (9) months after its effective date and to comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such registration statement. In the
event that any Registrable Securities included in a registration
statement subject to, or required by, this Agreement remain unsold at the
end of such period, Buyer may file a post-effective amendment to the
registration statement for the purpose of reregistering such shares.
C. In the event of any underwriting offering or any public
offering which is not underwritten.
(1) Buyer will furnish to Dawson at least one day prior to the
filing of the registration statement one copy of the draft of such
registration statement as is proposed to be filed, and thereafter so many
copies of a prospectus, including a preliminary prospectus, in conformity
with the requirements of the Securities Act, and such other documents, as
Dawson may reasonably request.
(2) Buyer will use commercially reasonable efforts to register
or qualify the securities covered by such registration statement under
such other securities or blue sky laws of such jurisdictions (not
exceeding ten (10) in number) as Dawson shall request, and do any and all
other acts and things that may be reasonably necessary or advisable to
enable Dawson to consummate the disposition in such jurisdictions of the
Registrable Securities covered by the registration statement; PROVIDED,
HOWEVER, that the Buyer shall not be obligated, by reason thereof, to
qualify as a foreign corporation or file any general consent to service
of process under the laws of any such jurisdiction or subject itself to
taxation as doing business in any such jurisdiction.
(3) Buyer shall notify Dawson when the registration statement
covering the offering of the Registrable Securities to be registered has
been filed with the Commission under the Securities Act and when it has
been made effective by order of the Commission.
(4) Buyer shall notify Dawson promptly of any request by the
Commission for the amending or supplementing of such registration
statement or prospectus or for additional information.
(5) Buyer shall advise Dawson promptly after the Buyer shall
receive notice or obtain knowledge of the issuance of any stop order by
the Commission suspending the effectiveness of any such registration
statement or amendment thereto or of the initiation or threatening of any
proceeding for that purpose.
(6) Buyer shall notify Dawson, at any time when a prospectus
relating to the proposed sale is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement or amendment contains
an untrue statement of a material fact or omits to state any material
fact required to be stated therein to make the statements therein, in
light of the circumstances under which they were made, not misleading.
D. Dawson shall be entitled to have its Registrable Securities
included in an unlimited number of registrations pursuant to this
Agreement.
Section 3. OBLIGATIONS OF DAWSON. To include any Registrable
Securities in any registration, Dawson shall:
(1) Cooperate with the Buyer in preparing each such
registration and execute all such agreements as any representative of the
underwriters may deem reasonably necessary in favor of the underwriters;
(2) Promptly supply Buyer with all information,
documents, representations and agreements as the underwriters or Buyer
may deem reasonably necessary in connection with such registration; and
(3) Agree in writing not to sell or transfer any
shares of the capital stock of Buyer not included in such registration
during the period beginning after receipt of notice of such filing and
ending ninety (90) days after the effective date of such registration
without the underwriters' or Buyers' consent.
Section 4. COMPLETION OF OFFERING NOT REQUIRED. Anything herein
to the contrary notwithstanding, Buyer shall have no obligation to Dawson
if the Board of Directors of Buyer determines, for any reason, not to
complete any proposed public offering of its securities.
Section 5. REGISTRATION EXPENSES. The costs and expenses (other
than underwriting discount or commission applicable to Dawson's
Registrable Securities registered in a public offering and fees and
disbursements of counsel for Dawson) of all registrations and
qualifications under the Securities Act, and of all other actions that
Buyer is required to take or effect pursuant to this Agreement, shall be
paid by Buyer (including, without limitation, all registration and filing
fees, printing expenses, costs of special audits incident to or required
by any such registration and fees and disbursements of counsel for
Buyer).
Section 6. INDEMNIFICATION BY BUYER. In the event of any
registration under the Securities Act of any offering including
Registrable Securities, Buyer hereby agrees to indemnify and hold
harmless Dawson with respect to each registration of Registrable
Securities that has been effected pursuant to this Agreement, against any
losses, claims, damages or liabilities or proceedings in respect thereof,
joint or several, to which Dawson may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities
(or proceedings in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which Registrable
Securities were registered under the Securities Act, in any preliminary
prospectus or final prospectus contained therein or any amendment or
supplement thereto, (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading or (iii) any failure or
alleged failure of Buyer to comply with any applicable statute, rule or
regulation in connection with the registration statement or the offering,
and will reimburse Dawson for any legal or other expenses reasonably
incurred by Dawson in connection with investigating or defending any such
loss, claim, damage, liability or proceeding; PROVIDED, that Buyer will
not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, said preliminary or final prospectus or said
amendment or supplement in reliance upon and in conforming with written
information furnished by Dawson specifically for use in the preparation
thereof.
Section 7. INDEMNIFICATION BY DAWSON. In the event of any
registration under the Securities Act of any offering including
Registrable Securities, Dawson hereby agrees to indemnify and hold
harmless Buyer with respect to each registration of Registrable
Securities that has been effected pursuant to this Agreement, and each
other person, if any, who controls Buyer within the meaning of the
Securities Act and each other person (including each underwriter, and
each other person, if any, who controls such underwriter) who
participates in the offering of such Registrable Securities against any
losses, claims, damages or liabilities or proceedings in respect thereof,
joint or several, to which Buyer, such controlling person or
participating person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
proceedings in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
any registration statement under which an offering of such Registrable
Securities was registered under the Securities Act, in any preliminary
prospectus or final prospectus contained therein, or in any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse Buyer and each such controlling person or participating
person for any legal or other expenses reasonably incurred by Buyer or
such controlling person or participating person in connection with
investigating or defending any such loss, claim, damage, liability or
proceeding; PROVIDED that Dawson will be liable in any such case to the
extent, and only to the extent, that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in such
registration statement, said preliminary or final prospectus or said
amendment or supplement in reliance upon and in conformity with written
information furnished by Dawson specifically for use in the preparation
thereof.
Section 8. ASSIGNMENT. Neither this Agreement nor any of the
rights or obligations hereunder may be assigned by any party without the
prior written consent of the other parties except that Buyer may, without
such consent, assign all such rights and obligations to a successor in
interest to Buyer which shall assume all obligations and liabilities
hereunder.
Section 9. SOLE AND ENTIRE AGREEMENT. This Agreement has been
entered into as part of the Acquisition and, along with the Purchase
Agreement, constitutes the sole and entire existing agreement between the
parties with respect to the subject matter hereof, and completely and
correctly expresses all of the rights and obligations of the parties.
All prior agreements, conditions, practices, customs, usages and
obligations are completely superseded and revoked, insofar as any such
prior agreement, condition, practice, custom, usage or obligation might
have given rise to any enforceable right.
Section 10. WAIVERS. The waiver in any particular instance or
series of instances of any term or condition of this Agreement or any
breach hereof by any party shall not constitute a waiver of such term or
condition or of any breach thereof in any other instance.
Section 11. AMENDMENT. This Agreement is subject to amendment
only by subsequent written agreement between, and executed by, the
parties hereto. Commencement or continuation of any custom, practice or
usage by Buyer shall not constitute an amendment hereof or otherwise give
rise to enforceable rights or create obligations of Buyer.
Section 12. SEPARABILITY. If any one or more provisions,
clauses, paragraphs, subclauses or subparagraphs contained in this
Agreement shall for any reason be held to be invalid, illegal, void or
unenforceable, the same shall not affect any other provision, clause, as
if such invalid, illegal, void or unenforceable provision, clause,
paragraph, subclause or subparagraph of this Agreement, but this
Agreement shall be construed as if such invalid, illegal, void or
unenforceable provision, clause, paragraph, subclause or subparagraph had
never been contained herein.
Section 13. TIME IS OF THE ESSENCE. Time is of the essence in
this Agreement. Any time limit mentioned herein has been carefully
considered and represents the agreed absolute outside limit of time
within which the applicable right must be exercised. The parties may
extend such time limit only by mutual agreement in writing.
Section 14. DURATION OF RIGHTS. Rights and obligations created
by or arising under this Agreement shall terminate automatically upon
termination of this Agreement, except as otherwise expressly provided
herein.
Section 15. FULL PERFORMANCE REQUIRED. The doctrine of
substantial performance has no application hereunder. Each condition and
provision has been carefully considered and represents the agreed minimum
limit of performance giving rise to applicable rights or obligations.
Section 16. APPLICABLE LAW. This Agreement shall be construed
and interpreted in accordance with the laws of the State of Arkansas.
Section 17. CONFIDENTIALITY. The parties agree that the terms of
this Agreement are to be held confidential and shall not be disclosed to
any other person or entity, except as required by law or legal process,
and except that either party may disclose the terms hereof to its or his
legal counsel, underwriters, or other advisors.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Registration Rights Agreement to be duly executed on their respective
behalf, by their respective officers thereunto duly authorized, all as of
the day and year first above written.
DAWSON AUTOZONE, INC.
("Buyer")
/S/ J. DALE DAWSON By: /S/ HARRY L. GOLDSMITH
J. Dale Dawson Name: Harry L. Goldsmith
Title: Senior Vice President
and General Counsel
/S/ JUDITH S. DAWSON By: /S/ DONALD R. RAWLINS
Judith S. Dawson Name: Donald R. Rawlins
Title: Assistant Secretary
EXHIBIT 10.1
CREDIT AGREEMENT
Dated as of February 23, 1998
among
AUTOZONE, INC.,
as Borrower,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTY HERETO
AND
NATIONSBANK, N.A.,
as Agent
and
SUNTRUST BANK, NASHVILLE, N.A.,
as Documentation Agent
TABLE OF CONTENTS
SECTION 1 DEFINITIONS
1.1 Definitions.
1.2 Incorporated Definitions.
1.3 Computation of Time Periods.
1.4 Accounting Terms.
SECTION 2 CREDIT FACILITY
2.1 Loans.
2.2 [intentionally left blank]
2.3 [intentionally left blank]
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITY
3.1 Default Rate.
3.2 Extension and Conversion.
3.3 Prepayments.
3.4 Termination, Reduction and Increase of Committed Amount.
3.5 Facility Fee.
3.6 Capital Adequacy.
3.7 Inability To Determine Interest Rate.
3.8 Illegality.
3.9 Yield Protection.
3.10 Withholding Tax Exemption.
3.11 Indemnity.
3.12 Pro Rata Treatment.
3.13 Sharing of Payments.
3.14 Payments, Computations, Etc.
3.15 Evidence of Debt.
3.16 Replacement of Lenders.
SECTION 4 CONDITIONS
4.1 Closing Conditions.
4.2 Conditions to all Extensions of Credit.
SECTION 5 REPRESENTATIONS AND WARRANTIES
5.1 Organization; Existence; Compliance with Law.
5.2 Power; Authorization; Enforceable Obligations.
5.3 No Legal Bar.
5.4 Governmental Regulations.
5.5 Purpose of Loans.
5.6 Incorporated Representations and Warranties.
SECTION 6 COVENANTS
6.1 Use of Proceeds.
6.2 Incorporated Covenants.
SECTION 7 [intentionally left blank]
SECTION 8 EVENTS OF DEFAULT
8.1 Events of Default.
8.2 Acceleration; Remedies.
SECTION 9 AGENCY PROVISIONS
9.1 Appointment.
9.2 Delegation of Duties.
9.3 Exculpatory Provisions.
9.4 Reliance on Communications.
9.5 Notice of Default.
9.6 Non-Reliance on Agent and Other Lenders.
9.7 Indemnification.
9.8 Agent in its Individual Capacity.
9.9 Successor Agent.
9.10 Documentation Agent.
SECTION 10 MISCELLANEOUS
10.1 Notices.
10.2 Right of Set-Off.
10.3 Benefit of Agreement.
10.4 No Waiver; Remedies Cumulative.
10.5 Payment of Expenses, etc.
10.6 Amendments, Waivers and Consents.
10.7 Counterparts.
10.8 Headings.
10.9 Survival.
10.10 Governing Law; Submission to Jurisdiction; Venue.
10.11 Severability.
10.12 Entirety.
10.13 Binding Effect; Termination.
10.14 Confidentiality.
10.15 Source of Funds.
10.16 Conflict.
SCHEDULES
Schedule 1.1 Applicable Percentage
Schedule 2.1(a) Lenders
Schedule 2.1(b)(i) Form of Notice of Borrowing
Schedule 2.1(e) Form of Note
Schedule 3.2 Form of Notice of Extension/Conversion
Schedule 6.2 Form of Officer's Compliance Certificate
Schedule 10.3(b) Form of Assignment and Acceptance
CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of February 23, 1998 (the "CREDIT
AGREEMENT"), is by and among AUTOZONE, INC., a Nevada corporation (the
"BORROWER"), the several lenders identified on the signature pages hereto
and such other lenders as may from time to time become a party hereto (the
"LENDERS"), NATIONSBANK, N.A., as agent for the Lenders (in such capacity,
the "AGENT"), and SUNTRUST BANK, NASHVILLE, N.A., as Documentation Agent
(in such capacity, the "DOCUMENTATION AGENT").
W I T N E S S E T H
WHEREAS, the Borrower has requested that the Lenders provide a
$150,000,000 credit facility (as such credit facility may be increased or
decreased pursuant to the terms hereof) for the purposes hereinafter set
forth;
WHEREAS, the Lenders have agreed to make the requested credit facility
available to the Borrower on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1 DEFINITIONS.
As used in this Credit Agreement, the following terms shall have the
meanings specified below unless the context otherwise requires:
"AGENCY SERVICES ADDRESS" means NationsBank, N.A., NC1-001-15-04, 101
North Tryon Street, Charlotte, North Carolina 28255, Attn: Agency
Services, or such other address as may be identified by written notice from
the Agent to the Borrower.
"AGENT" shall have the meaning assigned to such term in the heading
hereof, together with any successors or assigns.
"APPLICABLE PERCENTAGE" means, for purposes of calculating the
applicable interest rate for any day for any Loan or the applicable rate of
the Facility Fee for any day for purposes of Section 3.5, the appropriate
applicable percentage set forth on SCHEDULE 1.1 The Applicable Percentages
shall be determined and adjusted on the following dates (each a
"CALCULATION DATE"):
(i) where the Borrower has a senior unsecured (non-credit
enhanced) long term debt rating from both S&P and Moody's, five (5)
Business Days after receipt of notice by the Agent of a change in any
such debt rating, based on such debt ratings;
(ii) where the Borrower previously had a senior unsecured (non-
credit enhanced) long term debt rating from both S&P and Moody's, but
either or both of S&P and Moody's withdraws its rating, five (5)
Business Days after receipt by the Agent of notice of the withdrawal
of such debt rating, based on the information contained in the most
recent annual or quarterly financial statements and related
certificates provided in accordance with Sections 6.1(a) and 6.1(b) of
the Incorporated Covenants; and
(iii) five (5) Business Days after the date by which the
Borrower is required to provide the officer's certificate in
accordance with the provisions of Section 6.1(c) of the Incorporated
Covenants.
The Applicable Percentage shall be effective from a Calculation Date
until the next such Calculation Date. The Agent shall determine the
appropriate Applicable Percentages promptly upon receipt of the notices and
information necessary to make such determination and shall promptly notify
the Borrower and the Lenders of any change thereof. Such determinations by
the Agent shall be conclusive absent manifest error. The Applicable
Percentage from Closing Date shall be based on Pricing Level II, subject to
adjustment as provided herein.
"BASE RATE LOAN" means any Loan bearing interest at a rate determined
by reference to the Base Rate.
"BORROWER" means the Person identified as such in the heading hereof,
together with any permitted successors and assigns.
"CALCULATION DATE" has the meaning set forth in the definition of
Applicable Percentage.
"CLOSING DATE" means the date hereof.
"COMMITTED AMOUNT" shall have the meaning assigned to such term in
Section 2.1(a).
"COMMITMENT" means, with respect to each Lender, the commitment of
such Lender in an aggregate principal amount at any time outstanding not to
exceed the amount set forth opposite such Lender's name on SCHEDULE 2.1(A)
(as such amount may be reduced or increased from time to time in accordance
with the provisions of this Credit Agreement), to make Loans in accordance
with the provisions of Section 2.1(a).
"COMMITMENT PERCENTAGE" means, for any Lender, the percentage which
such Lender's Commitment then constitutes of the aggregate Committed
Amount.
"CREDIT DOCUMENTS" means a collective reference to this Credit
Agreement, the Notes, and all other related agreements and documents issued
or delivered hereunder or thereunder or pursuant hereto or thereto.
"DEFAULT" means any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"DOCUMENTATION AGENT" shall have the meaning assigned to such term in
the heading hereof, together with any successors or assigns.
"DOLLARS" and "$" means dollars in lawful currency of the United
States of America.
"EURODOLLAR LOAN" means any Loan bearing interest at a rate determined
by reference to the Eurodollar Rate.
"EVENT OF DEFAULT" means such term as defined in Section 8.1.
"EXISTING CREDIT AGREEMENT" means that certain Credit Agreement, dated
as of December 20, 1996, by and among the Borrower, the lenders parties
thereto and NationsBank, NA, as agent for such lenders.
"FACILITY FEE" shall have the meaning assigned to such term in Section
3.5.
"FACILITY FEE CALCULATION PERIOD" shall have the meaning assigned to
such term in Section 3.5.
"FINANCIAL OFFICER" means, with respect to the Borrower, the
Treasurer, the Chief Accounting Officer, the General Counsel or the Chief
Financial Officer of the Borrower; PROVIDED that the Borrower may designate
additional persons or delete persons so authorized by written notice to the
Agent from at least two existing Financial Officers of the Borrower.
"INTEREST PAYMENT DATE" means (i) as to any Base Rate Loan, the last
day of each March, June, September and December, the date of repayment of
principal of such Loan and the Termination Date and (ii) as to any
Eurodollar Loan, the last day of each Interest Period for such Loan, the
date of repayment of principal of such Loan and on the Termination Date,
and in addition where the applicable Interest Period is more than 3 months,
then also on the date 3 months from the beginning of the Interest Period,
and each 3 months thereafter. If an Interest Payment Date falls on a date
which is not a Business Day, such Interest Payment Date shall be deemed to
be the next succeeding Business Day, EXCEPT THAT in the case of Eurodollar
Loans where the next succeeding Business Day falls in the next succeeding
calendar month, then on the next preceding Business Day.
"INTEREST PERIOD" means as to any Eurodollar Loan, a period of one,
two, three or six month's duration, as the Borrower may elect, commencing
in each case, on the date of the borrowing (including conversions,
extensions and renewals); PROVIDED, HOWEVER, (A) if any Interest Period
would end on a day which is not a Business Day, such Interest Period shall
be extended to the next succeeding Business Day (except that in the case of
Eurodollar Loans where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding Business Day), (B) no
Interest Period shall extend beyond the Termination Date, and (C) in the
case of Eurodollar Loans, where an Interest Period begins on a day for
which there is no numerically corresponding day in the calendar month in
which the Interest Period is to end, such Interest Period shall end on the
last day of such calendar month.
"LENDERS" means each of the Persons identified as a "Lender" on the
signature pages hereto, and each Person which may become a Lender by way of
assignment in accordance with the terms hereof, together with their
successors and permitted assigns.
"LENDING INSTALLATION" means, with respect to a Lender or the Agent,
any office, branch, subsidiary or affiliate of such Lender or the Agent.
"LOANS" shall have the meaning assigned to such term in Section
2.1(a).
"MASTER ACCOUNT" means the AutoZone, Inc. Master Account, account no.
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION], or
such other account as may be identified by written notice from at least two
Financial Officers of the Borrower to the Agent.
"MOODY'S" means Moody's Investors Service, Inc., or any successor or
assignee of the business of such company in the business of rating
securities.
"NATIONSBANK" means NationsBank, N.A. and its successors.
"NOTE" means a promissory note of the Borrower in favor of a Lender
delivered pursuant to Section 2.1(e) and evidencing the Loans of such
Lender, as such promissory note may be amended, modified, restated or
replaced from time to time.
"NOTICE OF BORROWING" means a written notice of borrowing in
substantially the form of SCHEDULE 2.1(B)(I), as required by Section
2.1(b)(i).
"NOTICE OF EXTENSION/CONVERSION" means the written notice of extension
or conversion in substantially the form of SCHEDULE 3.2, as required by
Section 3.2.
"PARTICIPATION INTEREST" means, the extension of credit by a Lender by
way of a purchase of a participation or in any Loans as provided in Section
3.13.
"PRICING LEVEL" means the applicable pricing level for the Applicable
Percentage shown in SCHEDULE 1.1.
"REGISTER" shall have the meaning given such term in Section 10.3(c).
"REQUIRED LENDERS" means, at any time, Lenders which are then in
compliance with their obligations hereunder (as determined by the Agent)
and holding in the aggregate at least 100% of (i) the Commitment
Percentages or (ii) if the Commitments have been terminated, the
outstanding Loans and Participation Interests.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., or any successor or assignee of the business of such division
in the business of rating securities.
"TERMINATION DATE" means February 22, 1999.
1.2 INCORPORATED DEFINITIONS.
All capitalized terms not otherwise defined herein shall have the
respective meanings assigned to such terms in the Existing Credit
Agreement, as in effect as of the date hereof (the "Incorporated
Definitions"). The incorporation by reference to the Existing Credit
Agreement of the Incorporated Definitions pursuant to this Section 1.2
shall survive the termination of the Existing Credit Agreement. For
purposes of the incorporation of the Incorporated Definitions pursuant to
this Section 1.2, all references in the Incorporated Definitions to the
"Agent" shall be deemed to refer to the Agent hereunder, all references in
the Incorporated Definitions to a "Lender" or the "Lenders" shall be deemed
to refer to one or more of the Lenders hereunder, all references in the
Incorporated Definitions to the "Required Lenders" shall be deemed to refer
to the Required Lenders hereunder, all references in the Incorporated
Definitions to the "Credit Agreement," or any similar references, shall be
deemed to refer to this Credit Agreement, all references in the
Incorporated Definitions to a "Note" or the "Notes" shall be deemed to
refer to one or more of the Notes issued pursuant to Section 2.1(e) hereof
and all references in the Incorporated Definitions to a "Credit Document"
or the "Credit Documents," or any similar references, shall be deemed to
refer to one or more of the Credit Documents as defined in Section 1.1
hereof.
1.3 COMPUTATION OF TIME PERIODS.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean
"to but excluding."
1.4 ACCOUNTING TERMS.
Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered
to the Lenders hereunder shall be prepared, in accordance with GAAP applied
on a consistent basis. All calculations made for the purposes of
determining compliance with this Credit Agreement shall (except as
otherwise expressly provided herein) be made by application of GAAP applied
on a basis consistent with the most recent annual or quarterly financial
statements delivered pursuant to Section 6.1 of the Incorporated Covenants;
PROVIDED, HOWEVER, if (a) the Borrower shall object to determining such
compliance on such basis at the time of delivery of such financial
statements due to any change in GAAP or the rules promulgated with respect
thereto or (b) the Agent or the Required Lenders shall so object in writing
within 30 days after delivery of such financial statements, then such
calculations shall be made on a basis consistent with the most recent
financial statements delivered by the Borrower to the Lenders as to which
no such objection shall have been made.
SECTION 2
CREDIT FACILITY
2.1 LOANS.
(a) COMMITMENT. Subject to the terms and conditions hereof and
in reliance upon the representations and warranties set forth herein,
each Lender severally agrees to make available to the Borrower
revolving credit loans requested by the Borrower in Dollars ("LOANS")
up to such Lender's Commitment from time to time from the Closing Date
until the Termination Date, or such earlier date as the Commitments
shall have been terminated as provided herein for the purposes
hereinafter set forth; PROVIDED, HOWEVER, that the sum of the
aggregate principal amount of outstanding Loans shall not exceed ONE
HUNDRED FIFTY MILLION DOLLARS ($150,000,000.00) (as such aggregate
maximum amount may be reduced or increased from time to time as
provided in Section 3.4, the "COMMITTED AMOUNT"); PROVIDED, FURTHER,
with regard to each Lender individually, such Lender's outstanding
Loans shall not exceed such Lender's Commitment. Loans may consist of
Base Rate Loans or Eurodollar Loans, or a combination thereof, as the
Borrower may request, and may be repaid and reborrowed in accordance
with the provisions hereof; PROVIDED, HOWEVER, that no more than 15
Eurodollar Loans shall be outstanding hereunder at any time. For
purposes hereof, Eurodollar Loans with different Interest Periods
shall be considered as separate Eurodollar Loans, even if they begin
on the same date, although borrowings, extensions and conversions may,
in accordance with the provisions hereof, be combined at the end of
existing Interest Periods to constitute a new Eurodollar Loan with a
single Interest Period. Loans hereunder may be repaid and reborrowed
in accordance with the provisions hereof.
(b) LOAN BORROWINGS.
(i) NOTICE OF BORROWING. The Borrower shall request a Loan
borrowing by written notice (or telephone notice promptly
confirmed in writing) to the Agent not later than 11:30 A.M.
(Charlotte, North Carolina time) on the Business Day of the
requested borrowing in the case of Base Rate Loans, and not later
than 2:00 P.M. (Charlotte, North Carolina time) on the third
Business Day prior to the date of the requested borrowing in the
case of Eurodollar Loans. Each such request for borrowing shall
be irrevocable, executed by a Financial Officer of the Borrower
and shall specify (A) that a Loan is requested, (B) the date of
the requested borrowing (which shall be a Business Day), (C) the
aggregate principal amount to be borrowed, and (D) whether the
borrowing shall be comprised of Base Rate Loans, Eurodollar Loans
or a combination thereof, and if Eurodollar Loans are requested,
the Interest Period(s) therefor. If the Borrower shall fail to
specify in any such Notice of Borrowing (I) an applicable
Interest Period in the case of a Eurodollar Loan, then such
notice shall be deemed to be a request for an Interest Period of
one month, or (II) the type of Loan requested, then such notice
shall be deemed to be a request for a Base Rate Loan hereunder.
The Agent shall give notice to each affected Lender promptly upon
receipt of each Notice of Borrowing pursuant to this Section
2.1(b)(i), the contents thereof and each such Lender's share of
any borrowing to be made pursuant thereto.
(ii) MINIMUM AMOUNTS. Each Eurodollar Loan or Base Rate
Loan that is a Loan shall be in a minimum aggregate principal
amount of $5,000,000 and integral multiples of $1,000,000 in
excess thereof (or the remaining amount of the Committed Amount,
if less).
(iii) ADVANCES. Each Lender will make its Commitment
Percentage of each Loan borrowing available to the Agent for the
account of the Borrower as specified in SECTION 3.14(A), or in
such other manner as the Agent may specify in writing, by 1:00
P.M. (Charlotte, North Carolina time) on the date specified in
the applicable Notice of Borrowing in Dollars and in funds
immediately available to the Agent. Such borrowing will then be
made available to the Borrower by the Agent by crediting the
Master Account with the aggregate of the amounts made available
to the Agent by the Lenders and in like funds as received by the
Agent.
(c) REPAYMENT. The principal amount of all Loans shall be due
and payable in full on the Termination Date.
(d) INTEREST. Subject to the provisions of Section 3.1,
(i) BASE RATE LOANS. During such periods as Loans shall be
comprised in whole or in part of Base Rate Loans, such Base Rate
Loans shall bear interest at a per annum rate equal to the Base
Rate PLUS the Applicable Percentage;
(ii) EURODOLLAR LOANS. During such periods as Loans shall
be comprised in whole or in part of Eurodollar Loans, such
Eurodollar Loans shall bear interest at a per annum rate equal to
the Eurodollar Rate PLUS the Applicable Percentage.
Interest on Loans shall be payable in arrears on each applicable
Interest Payment Date (or at such other times as may be specified
herein).
(e) NOTES. The Loans made by each Lender shall be evidenced by a
duly executed promissory note of the Borrower to such Lender in an
original principal amount equal to such Lender's Commitment and in
substantially the form of SCHEDULE 2.1(E).
2.2 [INTENTIONALLY LEFT BLANK]
2.3 [INTENTIONALLY LEFT BLANK]
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITY
3.1 DEFAULT RATE.
Upon the occurrence, and during the continuance, o f an Event of
Default, the principal of and, to the extent permitted by law, interest on
the Loans and any other amounts owing hereunder or under the other Credit
Documents shall bear interest, payable on demand, at a per annum rate 2%
greater than the rate which would otherwise be applicable (or if no rate is
applicable, whether in respect of interest, fees or other amounts, then 2%
greater than the Base Rate).
3.2 EXTENSION AND CONVERSION.
Subject to the terms of Section 4.2, the Borrower shall have the
option, on any Business Day, to extend existing Loans into a subsequent
permissible Interest Period or to convert Loans into Loans of another
interest rate type; PROVIDED, HOWEVER, that (a) except as provided in
Section 3.8, Eurodollar Loans may be converted into Base Rate Loans only on
the last day of the Interest Period applicable thereto, (b) Eurodollar
Loans may be extended, and Base Rate Loans may be converted into Eurodollar
Loans, only if no Default or Event of Default is in existence on the date
of extension or conversion, (c) Loans extended as, or converted into,
Eurodollar Loans shall be subject to the terms of the definition of
"INTEREST PERIOD" set forth in Section 1.1 and shall be in such minimum
amounts as provided in Section 2.1(b)(ii), (d) no more than 15 Eurodollar
Loans shall be outstanding hereunder at any time (it being understood that,
for purposes hereof, Eurodollar Loans with different Interest Periods shall
be considered as separate Eurodollar Loans, even if they begin on the same
date, although borrowings, extensions and conversions may, in accordance
with the provisions hereof, be combined at the end of existing Interest
Periods to constitute a new Eurodollar Loan with a single Interest Period)
and (e) any request for extension or conversion of a Eurodollar Loan which
shall fail to specify an Interest Period shall be deemed to be a request
for an Interest Period of one month. Each such extension or conversion
shall be effected by a Financial Officer of the Borrower giving a Notice
of Extension/Conversion (or telephone notice promptly confirmed in writing)
to the Agent prior to 11:30 A.M. (Charlotte, North Carolina time) on the
Business Day of, in the case of the extension of a Base Rate Loan, and
prior to 2:00 P.M. (Charlotte, North Carolina time) on the third Business
Day prior to, in the case of the extension of a Eurodollar Loan as, or
conversion of a Base Rate Loan into, a Eurodollar Loan, the date of the
proposed extension or conversion, specifying the date of the proposed
extension or conversion, the Loans to be so extended or converted, the
types of Loans into which such Loans are to be converted and, if
appropriate, the applicable Interest Periods with respect thereto. Each
request for extension or conversion shall be irrevocable and shall
constitute a representation and warranty by the Borrower of the matters
specified in subsections (b), (c), (d) and (e) of Section 4.2. In the
event the Borrower fails to request extension or conversion of any
Eurodollar Loan in accordance with this Section, or any such conversion or
extension is not permitted or required by this Section, then such
Eurodollar Loan shall be automatically converted into a Base Rate Loan at
the end of the Interest Period applicable thereto. The Agent shall give
each Lender notice as promptly as practicable of any such proposed
extension or conversion affecting any Loan.
3.3 PREPAYMENTS.
(a) VOLUNTARY PREPAYMENTS. The Borrower shall have the right to
prepay Loans in whole or in part from time to time, subject to Section
3.11, but otherwise without premium or penalty; PROVIDED, HOWEVER,
that (i) Eurodollar Loans may only be prepaid on three Business Days'
prior written notice to the Agent and specifying the applicable Loans
to be prepaid; (ii) any prepayment of Eurodollar Loans will be subject
to Section 3.11; and (iii) each such partial prepayment of Loans shall
be in a minimum principal amount of $5,000,000 and multiples of
$1,000,000 in excess thereof (or, if less, the full remaining amount
of the Loan or being prepaid). Subject to the foregoing terms,
amounts prepaid under this Section 3.3(a) shall be applied as the
Borrower may elect.
(b) MANDATORY PREPAYMENTS. If at any time, the sum of the
aggregate principal amount of outstanding Loans shall exceed the
Committed Amount, the Borrower promises to prepay immediately the
outstanding principal balance on the Loans in an amount sufficient to
eliminate such excess.
(c) GENERAL. All prepayments made pursuant to this Section 3.3
shall (i) be subject to Section 3.11 and (ii) unless the Borrower
shall specify otherwise, be applied first to Base Rate Loans, if any,
and then to Eurodollar Loans in direct order of Interest Period
maturities. Amount prepaid on the Loans may be reborrowed in
accordance with the provisions hereof.
3.4 TERMINATION, REDUCTION AND INCREASE OF COMMITTED AMOUNT.
(a) VOLUNTARY REDUCTIONS. The Borrower may from time to time
permanently reduce or terminate the Committed Amount in whole or in
part (in minimum aggregate amounts of $5,000,000 or in integral
multiples of $1,000,000 in excess thereof (or, if less, the full
remaining amount of the then applicable Committed Amount)) upon five
Business Days' prior written notice to the Agent; PROVIDED, HOWEVER,
no such termination or reduction shall be made which would cause the
aggregate principal amount of outstanding Loans to exceed the
Committed Amount unless, concurrently with such termination or
reduction, the Loans are repaid to the extent necessary to eliminate
such excess. The Commitments of the Lenders shall automatically
terminate on the Termination Date. The Agent shall promptly notify
each affected Lender of receipt by the Agent of any notice from the
Borrower pursuant to this Section 3.4(a).
(b) TERMINATION DATE. The Commitments of the Lenders shall
automatically terminate on the Termination Date.
3.5 FACILITY FEE.
In consideration of the Commitments of the Lenders hereunder, the
Borrower agrees to pay to the Agent for the account of each Lender a fee
(the "FACILITY FEE") on the Committed Amount computed at a per annum rate
for each day during the applicable Facility Fee Calculation Period
(hereinafter defined) at a rate equal to the Applicable Percentage in
effect from time to time. The Facility Fee shall commence to accrue on the
Closing Date and shall be due and payable in arrears on the last business
day of each March, June, September and December (and any date that the
Committed Amount is reduced or increased as provided in Section 3.4 and the
Termination Date) for the immediately preceding quarter (or portion
thereof) (each such quarter or portion thereof for which the Facility Fee
is payable hereunder being herein referred to as a "FACILITY FEE
CALCULATION PERIOD"), beginning with the first of such dates to occur after
the Closing Date.
3.6 CAPITAL ADEQUACY.
If any 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 Credit Agreement, its Loans or its
obligation to make Loans hereunder (after taking into account such Lender's
policies as to capital adequacy). "Change" means (i) any change after the
Closing Date 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 Closing Date 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 Closing Date, 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 Closing Date.
3.7 INABILITY TO DETERMINE INTEREST RATE.
If prior to the first day of any Interest Period, the Agent shall have
reasonably determined that, by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period, the Agent shall
give telecopy or telephonic notice thereof to the Borrower and the Lenders
as soon as practicable thereafter. If such notice is given (a) any
Eurodollar Loans requested to be made on the first day of such Interest
Period shall be made as Base Rate Loans and (b) any Loans that were to have
been converted on the first day of such Interest Period to or continued as
Eurodollar Loans shall be converted to or continued as Base Rate Loans.
Until such notice has been withdrawn by the Agent, no further Eurodollar
Loans shall be made or continued as such, nor shall the Borrower have the
right to convert Base Rate Loans to Eurodollar Loans.
3.8 ILLEGALITY.
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application
thereof occurring after the Closing Date shall make it unlawful for any
Lender to make or maintain Eurodollar Loans as contemplated by this Credit
Agreement, (a) such Lender shall promptly give written notice of such
circumstances to the Borrower and the Agent (which notice shall be
withdrawn whenever such circumstances no longer exist), (b) the commitment
of such Lender hereunder to make Eurodollar Loans, continue Eurodollar
Loans as such and convert a Base Rate Loan to Eurodollar Loans shall
forthwith be canceled and, until such time as it shall no longer be
unlawful for such Lender to make or maintain Eurodollar Loans, such Lender
shall then have a commitment only to make a Base Rate Loan when a
Eurodollar Loan is requested and (c) such Lender's Loans then outstanding
as Eurodollar Loans, if any, shall be converted automatically to Base Rate
Loans on the respective last days of the then current Interest Periods with
respect to such Loans or within such earlier period as required by law. If
any such conversion of a Eurodollar Loan occurs on a day which is not the
last day of the then current Interest Period with respect thereto, the
Borrower shall pay to such Lender such amounts, if any, as may be required
pursuant to Section 3.11.
3.9 YIELD PROTECTION.
If any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law) ,
or any interpretation thereof, or the compliance of any Lender therewith,
(a) subjects any Lender or any applicable Lending Installation
to any tax, duty, charge or withholding on or from payments due from
the Borrower (excluding federal taxation of the overall net income of
any Lender or applicable Lending Installation), or changes the basis
of taxation of payments to any Lender in respect of its Loans or
other amounts due it hereunder;
(b) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirements
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
Base Rate);
and the result of which is to increase the cost to any Lender of making,
funding or maintaining loans or reduces any amount receivable by any Lender
or any applicable Lending Installation in connection with loans, or
requires any Lender or any applicable Lending Installation to make any
payment calculated by reference to the amount of loans held or interest
received by it, by an amount deemed material by such Lender;
then, within 15 days of demand by such Lender, the Borrower shall pay such
Lender that portion of such increased expense incurred or reduction in an
amount received which such Lender determines is attributable to making,
funding and maintaining its Loans and its Commitments. This covenant shall
survive the termination of this Credit Agreement and the payment of the
Loans and all other amounts payable hereunder.
3.10 WITHHOLDING TAX EXEMPTION.
Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(a) (i) on or before the date of any payment by the Borrower
under this Credit Agreement or Notes to such Lender, deliver to the
Borrower and the Agent (A) two (2) duly completed copies of United
States Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, certifying that it is entitled to
receive payments under this Credit Agreement and any Notes without
deduction or withholding of any United States federal income taxes and
(B) an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be, certifying that it is entitled to
an exemption from United States backup withholding tax;
(ii) deliver to the Borrower and the Agent two (2) further
copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete
and after the occurrence of any event requiring a change in the
most recent form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by
the Borrower or the Agent; or
(b) in the case of any such Lender that is not a "bank" within
the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (i)
represent to the Borrower (for the benefit of the Borrower and the
Agent) that it is not a bank within the meaning of Section
881(c)(3)(A) of the Internal Revenue Code, (ii) agree to furnish to
the Borrower on or before the date of any payment by the Borrower,
with a copy to the Agent two (2) accurate and complete original signed
copies of Internal Revenue Service Form W-8, or successor applicable
form certifying to such Lender's legal entitlement at the date of such
certificate to an exemption from U.S. withholding tax under the
provisions of Section 881(c) of the Internal Revenue Code with respect
to payments to be made under this Credit Agreement and any Notes (and
to deliver to the Borrower and the Agent two (2) further copies of
such form on or before the date it expires or becomes obsolete and
after the occurrence of any event requiring a change in the most
recently provided form and, if necessary, obtain any extensions of
time reasonably requested by the Borrower or the Agent for filing and
completing such forms), and (iii) agree, to the extent legally
entitled to do so, upon reasonable request by the Borrower, to provide
to the Borrower (for the benefit of the Borrower and the Agent) such
other forms as may be reasonably required in order to establish the
legal entitlement of such Lender to an exemption from withholding with
respect to payments under this Credit Agreement and any Notes;
unless in any such case any change in treaty, law or regulation has
occurred after the date such Person becomes a Lender hereunder which
renders all such forms inapplicable or which would prevent such Lender from
duly completing and delivering any such form with respect to it and such
Lender so advises the Borrower and the Agent in either case. Each Person
that shall become a Lender or a participant of a Lender pursuant to
subsection 10.3 shall, upon the effectiveness of the related transfer, be
required to provide all of the forms, certifications and statements
required pursuant to this subsection, PROVIDED that in the case of a
participant of a Lender the obligations of such participant of a Lender
pursuant to this Section 3.10 shall be determined as if the participant of
a Lender were a Lender except that such participant of a Lender shall
furnish all such required forms, certifications and statements to the
Lender from which the related participation shall have been purchased.
3.11 INDEMNITY.
The Borrower promises to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur
(other than through such Lender's gross negligence or willful misconduct)
as a consequence of (a) default by the Borrower in making a borrowing of,
conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of
this Credit Agreement, (b) default by the Borrower in making any prepayment
of a Eurodollar Loan after the Borrower has given a notice thereof in
accordance with the provisions of this Credit Agreement or (c) the making
of a prepayment of Eurodollar Loans on a day which is not the last day of
an Interest Period with respect thereto. With respect to Eurodollar Loans,
such indemnification may include an amount equal to the excess, if any, of
(i) the amount of interest which would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from
the date of such prepayment or of such failure to borrow, convert or
continue to the last day of the applicable Interest Period (or, in the case
of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable
rate of interest for such Eurodollar Loans provided for herein (excluding,
however, the Applicable Percentage included therein, if any) over (ii) the
amount of interest (as reasonably determined by such Lender) which would
have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank
Eurodollar market. The covenants of the Borrower set forth in this Section
3.11 shall survive the termination of this Credit Agreement and the payment
of the Loans and all other amounts payable hereunder.
3.12 PRO RATA TREATMENT.
Except to the extent otherwise provided herein:
(a) LOANS. Each Loan, each payment or prepayment of principal of
any Loan, each payment of interest on the Loans, each reduction of the
Committed Amount and each conversion or extension of any Loan, shall
be allocated pro rata among the Lenders in accordance with the
respective principal amounts of their outstanding Loans and
Participation Interests.
(b) ADVANCES. Unless the Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not
make the amount that would constitute its ratable share of such
borrowing available to the Agent, the Agent may assume that such
Lender is making such amount available to the Agent, and the Agent
may, in reliance upon such assumption, make available to the Borrower
a corresponding amount. If such amount is not made available to the
Agent by such Lender within the time period specified therefor
hereunder, such Lender shall pay to the Agent, on demand, such amount
with interest thereon at a rate equal to the Federal Funds Rate for
the period until such Lender makes such amount immediately available
to the Agent. A certificate of the Agent submitted to any Lender with
respect to any amounts owing under this subsection shall be conclusive
in the absence of manifest error.
3.13 SHARING OF PAYMENTS.
The Lenders agree among themselves that, in the event that any Lender
shall obtain payment in respect of any Loan or any other obligation owing
to such Lender under this Credit Agreement through the exercise of a right
of setoff, banker's lien or counterclaim, or pursuant to a secured claim
under Section 506 of Title 11 of the United States Code or other security
or interest arising from, or in lieu of, such secured claim, received by
such Lender under any applicable bankruptcy, insolvency or other similar
law or otherwise, or by any other means, in excess of its pro rata share of
such payment as provided for in this Credit Agreement, such Lender shall
promptly purchase from the other Lenders a participation in such Loans and
other obligations in such amounts, and make such other adjustments from
time to time, as shall be equitable to the end that all Lenders share such
payment in accordance with their respective ratable shares as provided for
in this Credit Agreement. The Lenders further agree among themselves that
if payment to a Lender obtained by such Lender through the exercise of a
right of setoff, banker's lien, counterclaim or other event as aforesaid
shall be rescinded or must otherwise be restored, each Lender which shall
have shared the benefit of such payment shall, by repurchase of a
participation theretofore sold, return its share of that benefit (together
with its share of any accrued interest payable with respect thereto) to
each Lender whose payment shall have been rescinded or otherwise restored.
The Borrower agrees that any Lender so purchasing such a participation may,
to the fullest extent permitted by law, exercise all rights of payment,
including setoff, banker's lien or counterclaim, with respect to such
participation as fully as if such Lender were a holder of such Loan or
other obligation in the amount of such participation. Except as otherwise
expressly provided in this Credit Agreement, if any Lender or the Agent
shall fail to remit to the Agent or any other Lender an amount payable by
such Lender or the Agent to the Agent or such other Lender pursuant to this
Credit Agreement on the date when such amount is due, such payments shall
be made together with interest thereon for each date from the date such
amount is due until the date such amount is paid to the Agent or such other
Lender at a rate per annum equal to the Federal Funds Rate. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives
a secured claim in lieu of a setoff to which this Section 3.13 applies,
such Lender shall, to the extent practicable, exercise its rights in
respect of such secured claim in a manner consistent with the rights of the
Lenders under this Section 3.13 to share in the benefits of any recovery on
such secured claim.
3.14 PAYMENTS, COMPUTATIONS, ETC.
(a) Except as otherwise specifically provided herein, all
payments hereunder shall be made to the Agent in dollars in
immediately available funds, without offset, deduction, counterclaim
or withholding of any kind, at the Agent's office specified in
SCHEDULE 2.1(A) not later than 4:00 P.M. (Charlotte, North Carolina
time) on the date when due. Payments received after such time shall
be deemed to have been received on the next succeeding Business Day.
The Agent may (but shall not be obligated to) debit the amount of any
such payment which is not made by such time to any ordinary deposit
account of the Borrower maintained with the Agent (with notice to the
Borrower). The Borrower shall, at the time it makes any payment under
this Credit Agreement, specify to the Agent the Loans, Fees, interest
or other amounts payable by the Borrower hereunder to which such
payment is to be applied (and in the event that it fails so to
specify, or if such application would be inconsistent with the terms
hereof, the Agent shall distribute such payment to the Lenders in such
manner as the Agent may determine to be appropriate in respect of
obligations owing by the Borrower hereunder, subject to the terms of
Section 3.12(a)). The Agent will distribute such payments to such
Lenders, if any such payment is received prior to 12:00 Noon
(Charlotte, North Carolina time) on a Business Day in like funds as
received prior to the end of such Business Day and otherwise the Agent
will distribute such payment to such Lenders on the next succeeding
Business Day. Whenever any payment hereunder shall be stated to be
due on a day which is not a Business Day, the due date thereof shall
be extended to the next succeeding Business Day (subject to accrual of
interest and Fees for the period of such extension), except that in
the case of Eurodollar Loans, if the extension would cause the payment
to be made in the next following calendar month, then such payment
shall instead be made on the next preceding Business Day. Except as
expressly provided otherwise herein, all computations of interest and
fees shall be made on the basis of actual number of days elapsed over
a year of 360 days, except with respect to computation of interest on
Base Rate Loans which (unless the Base Rate is determined by reference
to the Federal Funds Rate) shall be calculated based on a year of 365
or 366 days, as appropriate. Interest shall accrue from and include
the date of borrowing, but exclude the date of payment.
(b) ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT.
Notwithstanding any other provisions of this Credit Agreement to the
contrary, after the occurrence and during the continuance of an Event
of Default, all amounts collected or received by the Agent or any
Lender on account of the Loans, Fees or any other amounts outstanding
under any of the Credit Documents shall be paid over or delivered as
follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys'
fees) of the Agent in connection with enforcing the rights of the
Lenders under the Credit Documents;
SECOND, to payment of any fees owed to the Agent;
THIRD, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation, reasonable attorneys'
fees) of each of the Lenders in connection with enforcing its
rights under the Credit Documents or otherwise with respect to
amounts owing to such Lender;
FOURTH, to the payment of accrued fees and interest;
FIFTH, to the payment of the outstanding principal amount of
the Loans;
SIXTH, to all other amounts and other obligations which
shall have become due and payable under the Credit Documents or
otherwise and not repaid pursuant to clauses "FIRST" through
"FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to whoever
may be lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied
in the numerical order provided until exhausted prior to application
to the next succeeding category; and (ii) each of the Lenders shall
receive an amount equal to its pro rata share (based on the proportion
that the then outstanding Loans held by such Lender bears to the
aggregate then outstanding Loans) of amounts available to be applied
pursuant to clauses "THIRD", "FOURTH", "FIFTH" and "SIXTH" above.
3.15 EVIDENCE OF DEBT.
(a) Each Lender shall maintain an account or accounts evidencing
each Loan made by such Lender to the Borrower from time to time,
including the amounts of principal and interest payable and paid to
such Lender from time to time under this Credit Agreement. Each
Lender will make reasonable efforts to maintain the accuracy of its
account or accounts and to promptly update its account or accounts
from time to time, as necessary.
(b) The Agent shall maintain the Register pursuant to Section
10.3(c) hereof, and a subaccount for each Lender, in which Register
and subaccounts (taken together) shall be recorded (i) the amount,
type and Interest Period of each such Loan hereunder, (ii) the amount
of any principal or interest due and payable or to become due and
payable to each Lender hereunder and (iii) the amount of any sum
received by the Agent hereunder from or for the account of the
Borrower and each Lender's share thereof. The Agent will make
reasonable efforts to maintain the accuracy of the subaccounts
referred to in the preceding sentence and to promptly update such
subaccounts from time to time, as necessary.
(c) The entries made in the accounts, Register and subaccounts
maintained pursuant to subsection (b) of this Section 3.15 (and, if
consistent with the entries of the Agent, subsection (a)) shall be
prima facie, but not conclusive, evidence of the existence and amounts
of the obligations of the Borrower therein recorded; PROVIDED,
HOWEVER, that the failure of any Lender or the Agent to maintain any
such account, such Register or such subaccount, as applicable, or any
error therein, shall not in any manner affect the obligation of the
Borrower to repay the Loans made by such Lender in accordance with the
terms hereof.
3.16 REPLACEMENT OF LENDERS.
In the event any Lender delivers to the Borrower any notice in
accordance with Sections 3.6, 3.8, 3.9 or 3.10, then the Borrower shall
have the right, if no Default or Event of Default then exists, to replace
such Lender (the "REPLACED LENDER") with one or more additional banks or
financial institutions (collectively, the "REPLACEMENT LENDER"), PROVIDED
that (A) at the time of any replacement pursuant to this Section 3.16, the
Replacement Lender shall enter into one or more assignment agreements
substantially in the form of SCHEDULE 10.3(B) pursuant to, and in
accordance with the terms of, Section 10.3(b) (and with all fees payable
pursuant to said Section 10.3(b) to be paid by the Replacement Lender)
pursuant to which the Replacement Lender shall acquire all of the rights
and obligations of the Replaced Lender hereunder and, in connection
therewith, shall pay to the Replaced Lender in respect thereof an amount
equal to the sum of (a) the principal of, and all accrued interest on, all
outstanding Loans of the Replaced Lender, and (b) all accrued, but
theretofore unpaid, fees owing to the Replaced Lender pursuant to Section
3.5(a), and (B) all obligations of the Borrower owing to the Replaced
Lender (including all obligations, if any, owing pursuant to Section 3.6,
3.8 or 3.9, but excluding those obligations specifically described in
clause (A) above in respect of which the assignment purchase price has
been, or is concurrently being paid) shall be paid in full to such Replaced
Lender concurrently with such replacement.
SECTION 4
CONDITIONS
4.1 CLOSING CONDITIONS.
The obligation of the Lenders to enter into this Credit Agreement and
to make the initial Loans shall be subject to satisfaction of the following
conditions (in form and substance acceptable to the Lenders):
(a) The Agent shall have received original counterparts of this
Credit Agreement executed by each of the parties hereto;
(b) The Agent shall have received an appropriate original Note
for each Lender, executed by the Borrower; and
(c) The Agent shall have received all documents it may reasonably
request relating to the existence and good standing of the Borrower,
the corporate or other necessary authority for and the validity of the
Credit Documents, and any other matters relevant thereto, all in form
and substance reasonably satisfactory to the Agent;
4.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
The obligations of each Lender to make, convert or extend any Loan
(including the initial Loans) are subject to satisfaction of the following
conditions in addition to satisfaction on the Closing Date of the
conditions set forth in Section 4.1:
(a) The Borrower shall have delivered, in the case of any Loan,
an appropriate Notice of Borrowing or Notice of Extension/Conversion;
(b) The representations and warranties set forth in Section 5
shall be, subject to the limitations set forth therein, true and
correct in all material respects as of such date (except for those
which expressly relate to an earlier date);
(c) There shall not have been commenced against the Borrower an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or any case, proceeding or
other action for the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Borrower
or for any substantial part of its Property or for the winding up or
liquidation of its affairs, and such involuntary case or other case,
proceeding or other action shall remain undismissed, undischarged or
unbonded;
(d) No Default or Event of Default shall exist and be continuing
either prior to or after giving effect thereto; and
(e) Immediately after giving effect to the making of such Loan
(and the application of the proceeds thereof), the sum of the
aggregate principal amount of outstanding Loans shall not exceed the
Committed Amount.
The delivery of each Notice of Borrowing and each Notice of
Extension/Conversion shall constitute a representation and warranty by the
Borrower of the correctness of the matters specified in subsections (b),
(c), (d) and (e) above.
SECTION 5
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents to the Agent and each Lender that:
5.1 ORGANIZATION; EXISTENCE; COMPLIANCE WITH LAW.
Each of the Borrower and its Subsidiaries (a) is duly organized,
validly existing and is in good standing under the laws of the jurisdiction
of its incorporation or organization, (b) has the corporate or other
necessary power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, except to the extent that the
failure to have such legal right would not be reasonably expected to have a
Material Adverse Effect, (c) is duly qualified as a foreign entity and in
good standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires such
qualification, other than in such jurisdictions where the failure to be so
qualified and in good standing would not be reasonably expected to have a
Material Adverse Effect, and (d) is in compliance with all material
Requirements of Law, except to the extent that the failure to comply
therewith would not, in the aggregate, be reasonably expected to have a
Material Adverse Effect.
5.2 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
The Borrower has the corporate or other necessary power and authority,
and the legal right, to make, deliver and perform the Credit Documents to
which it is a party, and in the case of the Borrower, to borrow hereunder,
and has taken all necessary corporate action to authorize the borrowings on
the terms and conditions of this Credit Agreement and to authorize the
execution, delivery and performance of the Credit Documents to which it is
a party. No consent or authorization of, filing with, notice to or other
similar act by or in respect of, any Governmental Authority or any other
Person is required to be obtained or made by or on behalf of the Borrower
in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of the Credit Documents
to which the Borrower is a party. This Credit Agreement has been, and each
other Credit Document to which the Borrower is a party will be, duly
executed and delivered on behalf of the Borrower. This Credit Agreement
constitutes, and each other Credit Document to which the Borrower is a
party when executed and delivered will constitute, a legal, valid and
binding obligation of the Borrower enforceable against such party in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings
in equity or at law).
5.3 NO LEGAL BAR.
The execution, delivery and performance of the Credit Documents by the
Borrower, the borrowings hereunder and the use of the proceeds thereof (a)
will not violate any Requirement of Law or contractual obligation of the
Borrower or any of its Subsidiaries in any respect that would reasonably be
expected to have a Material Adverse Effect, (b) will not result in, or
require, the creation or imposition of any Lien on any of the properties or
revenues of any of the Borrower or any of its Subsidiaries pursuant to any
such Requirement of Law or contractual obligation, and (c) will not violate
or conflict with any provision of the Borrower's articles of incorporation
or by-laws.
5.4 GOVERNMENTAL REGULATIONS.
No part of the proceeds of the Loans will be used, directly or
indirectly, for the purpose of purchasing or carrying any "margin stock" in
violation of Regulation G or Regulation U. If requested by any Lender or
the Agent, the Borrower will furnish to the Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR
Form U-1 referred to in said Regulation U. No indebtedness being reduced
or retired out of the proceeds of the Loans was or will be incurred for the
purpose of purchasing or carrying any margin stock within the meaning of
Regulation U or any "margin security" within the meaning of Regulation T.
"Margin stock" within the meanings of Regulation U does not constitute more
than 25% of the value of the consolidated assets of the Borrower and its
Subsidiaries. None of the transactions contemplated by this Credit
Agreement (including, without limitation, the direct or indirect use of the
proceeds of the Loans) will violate or result in a violation of the
Securities Act of 1933, as amended, or the Securities Exchange Act of 1934,
as amended, or regulations issued pursuant thereto, or Regulation G, T, U
or X.
5.5 PURPOSE OF LOANS.
The proceeds of the Loans hereunder shall be used solely by the
Borrower to (a) repurchase stock in the Borrower, (b) to finance
acquisitions to the extent permitted under this Credit Agreement and (c)
for the working capital, commercial paper back up, capital expenditures and
other lawful corporate purposes of the Borrower and its Subsidiaries.
5.6 INCORPORATED REPRESENTATIONS AND WARRANTIES.
The Borrower hereby agrees that the representations and warranties
contained in Sections 5.1, 5.5, 5.6, 5.7, 5.8, 5.9, 5.10, 5.11(b)-(e) and
5.12 of the Existing Credit Agreement, as in effect as of the date hereof
(the "Incorporated Representations"), are hereby incorporated by reference
and shall be as binding on the Borrower as if set forth fully herein;
provided, however, SCHEDULE 5.12 of the Incorporated Representations shall
be deleted and replaced with SCHEDULE 5.12 attached hereto. The
incorporation by reference to the Existing Credit Agreement of the
Incorporated Representations pursuant to this Section 5.6 shall survive the
termination of the Existing Credit Agreement. For purposes of the
incorporation of the Incorporated Representations pursuant to this Section
5.6, all references in the Incorporated Representations to the "Agent"
shall be deemed to refer to the Agent hereunder, all references in the
Incorporated Representations to a "Lender" or the "Lender" shall be deemed
to refer to one or more of the Lenders hereunder, all references in the
Incorporated Representations to the "Required Lenders" shall be deemed to
refer to the Required Lenders hereunder, all references in the Incorporated
Representations to the "Credit Agreement," or any similar references, shall
be deemed to refer to this Credit Agreement, all references in the
Incorporated Representations to a "Note" or the "Notes" shall be deemed to
refer to one or more of the Notes issued pursuant to Section 2.1(e) hereof
and all references in the Incorporated Representations to a "Credit
Document" or the "Credit Documents," or any similar references, shall be
deemed to refer to one or more of the Credit Documents as defined in
Section 1.1 hereof.
SECTION 6
COVENANTS
The Borrower hereby covenants and agrees that so long as this Credit
Agreement is in effect or any amounts payable hereunder or under any other
Credit Document shall remain outstanding, and until all of the Commitments
hereunder shall have terminated:
6.1 USE OF PROCEEDS.
The Borrower will use the proceeds of the Loans solely for the
purposes set forth in Section 5.5.
6.2 INCORPORATED COVENANTS.
The Borrower hereby agrees that the affirmative and negative covenants
contained in Sections 6.1-6.7, Section 6.9, Section 6.10 and Section 7 of
the Existing Credit Agreement, as in effect as of the date hereof (the
"Incorporated Covenants"), are hereby incorporated by reference and shall
be as binding on the Borrower as if set forth fully herein, except that,
for purposes hereof, Schedule 6.1(c) to the Existing Credit Agreement
referred to in Section 6.1(c) of the Existing Credit Agreement shall be
deemed to refer to Schedule 6.2 attached hereto. The incorporation by
reference to the Existing Credit Agreement of the Incorporated Covenants
pursuant to this Section 6.2 shall survive the termination of the Existing
Credit Agreement. For purposes of the incorporation of the Incorporated
Covenants pursuant to this Section 6.2, all references in the Incorporated
Covenants to the "Agent" shall be deemed to refer to the Agent hereunder,
all references in the Incorporated Covenants to a "Lender" or the "Lenders"
shall be deemed to refer to one or more of the Lenders hereunder, all
references in the Incorporated Covenants to the "Required Lenders" shall be
deemed to refer to the Required Lenders hereunder, all references in the
Incorporated Covenants to the "Credit Agreement," or any similar reference,
shall be deemed to refer to this Credit Agreement, all references in the
Incorporated Covenants to a "Note" or the "Notes" shall be deemed to refer
to one or more of the Notes issued pursuant to Section 2.1(e) hereof and
all references in the Incorporated Covenants to a "Credit Document" or the
"Credit Documents," or any similar reference, shall be deemed to refer to
one or more of the Credit Documents as defined in Section 1.1 hereof.
SECTION 7
[INTENTIONALLY LEFT BLANK]
SECTION 8
EVENTS OF DEFAULT
8.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "EVENT OF DEFAULT"):
(a) PAYMENT. The Borrower shall
(i) default in the payment when due of any principal of
any of the Loans, or
(ii) default, and such defaults shall continue for five
(5) or more Business Days, in the payment when due of any
interest on the Loans, or of any other amounts owing
hereunder, under any of the other Credit Documents or in
connection herewith or therewith; or
(b) REPRESENTATIONS. Any representation, warranty or
statement made or deemed to be made by the Borrower herein, in
any of the other Credit Documents, or in any statement or
certificate delivered or required to be delivered pursuant hereto
or thereto shall prove untrue in any material respect on the date
as of which it was deemed to have been made; or
(c) COVENANTS. The Borrower shall
(i) default in the due performance or observance of any
term, covenant or agreement contained in Sections 6.2, 6.10
or 7.1 through 7.3, inclusive, of the Incorporated
Covenants, or
(ii) default in the due performance or observance by it
of any term, covenant or agreement (other than those
referred to in subsections (a), (b) or (c)(i) of this
Section 8.1) contained in this Credit Agreement and such
default shall continue unremedied for a period of at least
30 days after the earlier of a responsible officer of the
Borrower becoming aware of such default or notice thereof by
the Agent; or
(d) INCORPORATED EVENTS OF DEFAULT. The occurrence of an
"Event of Default" under and as defined in the Existing Credit
Agreement, as in effect as of the date hereof, which "Events of
Default" (the "Incorporated Events of Default"), are hereby
incorporated herein by reference and shall be as binding on the
Borrower as if set forth fully herein, such incorporation by
reference to survive termination of the Existing Credit
Agreement. For purposes of the incorporation of the Incorporated
Events of Default pursuant to this Section 8.1(d), all references
in the Incorporated Events of Default to the "Agent" shall be
deemed to refer to the Agent hereunder, all references in the
Incorporated Events of Default to a "Lender" or the "Lenders"
shall be deemed to refer to one or more of the Lenders hereunder,
all references in the Incorporated Events of Default to the
"Required Lenders" shall be deemed to refer to the Required
Lenders hereunder, all references in the Incorporated Events of
Default to the "Credit Agreement," or any similar references,
shall be deemed to refer to this Credit Agreement, all references
in the Incorporated Events of Default to a "Note" or the "Notes"
shall be deemed to refer to one or more of the Notes issued
pursuant to Section 2.1(e) hereof and all references in the
Incorporated Events of Default to a "Credit Document" or the
"Credit Documents," or any similar references, shall be deemed to
refer to one or more of the Credit Documents as defined in
Section 1.1 hereof.
8.2 ACCELERATION; REMEDIES.
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived by the Required
Lenders or cured to the satisfaction of the Required Lenders (pursuant to
the voting procedures in Section 10.6), the Agent shall, upon the request
and direction of the Required Lenders, by written notice to the Borrower
take any of the following actions:
(a) TERMINATION OF COMMITMENTS. Declare the Commitments
terminated whereupon the Commitments shall be immediately
terminated.
(b) ACCELERATION. Declare the unpaid principal of and any
accrued interest in respect of all Loans and any and all other
indebtedness or obligations of any and every kind owing by the
Borrower to the Agent and/or any of the Lenders hereunder to be
due whereupon the same shall be immediately due and payable
without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower.
(c) ENFORCEMENT OF RIGHTS. Enforce any and all rights and
interests created and existing under the Credit Documents and all
rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in
Section 8.1(d) of the Incorporated Events of Default shall occur, then the
Commitments shall automatically terminate and all Loans, all accrued
interest in respect thereof and all and other indebtedness or obligations
owing to the Agent and/or any of the Lenders hereunder automatically shall
immediately become due and payable without the giving of any notice or
other action by the Agent or the Lenders.
SECTION 9
AGENCY PROVISIONS
9.1 APPOINTMENT.
Each Lender hereby designates and appoints NationsBank, N.A. as
administrative agent (in such capacity as Agent hereunder, the "Agent") of
such Lender to act as specified herein and the other Credit Documents, and
each such Lender hereby authorizes the Agent as the agent for such Lender,
to take such action on its behalf under the provisions of this Credit
Agreement and the other Credit Documents and to exercise such powers and
perform such duties as are expressly delegated by the terms hereof and of
the other Credit Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere herein and in the other Credit Documents, the Agent
shall not have any duties or responsibilities, except those expressly set
forth herein and therein, or any fiduciary relationship with any Lender,
and no implied covenants, functions, responsibilities, duties, obligations
or liabilities shall be read into this Credit Agreement or any of the other
Credit Documents, or shall otherwise exist against the Agent. The
provisions of this Section are solely for the benefit of the Agent and the
Lenders and the Borrower shall have no rights as a third party beneficiary
of the provisions hereof. In performing its functions and duties under
this Credit Agreement and the other Credit Documents, the Agent shall act
solely as agent of the Lenders and does not assume and shall not be deemed
to have assumed any obligation or relationship of agency or trust with or
for the Borrower or any of its Affiliates.
9.2 DELEGATION OF DUTIES.
The Agent may execute any of its respective duties hereunder or under
the other Credit Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to
such duties; PROVIDED that the use of any agents or attorneys-in-fact shall
not relieve the Agent of its duties hereunder.
9.3 EXCULPATORY PROVISIONS.
The Agent and its officers, directors, employees, agents, attorneys-
in-fact or affiliates shall not be (a) liable for any action lawfully taken
or omitted to be taken by it or such Person under or in connection herewith
or in connection with any of the other Credit Documents (except for its or
such Person's own gross negligence or willful misconduct), or (b)
responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by the Borrower contained
herein or in any of the other Credit Documents or in any certificate,
report, document, financial statement or other written or oral statement
referred to or provided for in, or received by the Agent under or in
connection herewith or in connection with the other Credit Documents, or
enforceability or sufficiency therefor of any of the other Credit
Documents, or for any failure of the Borrower to perform its obligations
hereunder or thereunder. The Agent shall not be responsible to any Lender
for the effectiveness, genuineness, validity, enforceability,
collectability or sufficiency of this Credit Agreement, or any of the other
Credit Documents or for any representations, warranties, recitals or
statements made herein or therein or made by the Borrower in any written or
oral statement or in any financial or other statements, instruments,
reports, certificates or any other documents in connection herewith or
therewith furnished or made by the Agent to the Lenders or by or on behalf
of the Borrower to the Agent or any Lender or be required to ascertain or
inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained herein or therein
or as to the use of the proceeds of the Loans or of the existence or
possible existence of any Default or Event of Default or to inspect the
properties, books or records of the Borrower or any of its Affiliates.
9.4 RELIANCE ON COMMUNICATIONS.
The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation reasonably
believed by it to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrower,
independent accountants and other experts selected by the Agent with
reasonable care). The Agent may deem and treat the Lenders as the owner of
their respective interests hereunder for all purposes unless a written
notice of assignment, negotiation or transfer thereof shall have been filed
with the Agent in accordance with Section 10.3(b) hereof. The Agent shall
be fully justified in failing or refusing to take any action under this
Credit Agreement or under any of the other Credit Documents unless it shall
first receive such advice or concurrence of the Required Lenders as it
deems appropriate or it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred
by it by reason of taking or continuing to take any such action. The Agent
shall in all cases be fully protected in acting, or in refraining from
acting, hereunder or under any of the other Credit Documents in accordance
with a request of the Required Lenders (or to the extent specifically
provided in Section 10.6, all the Lenders) and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the
Lenders (including their successors and assigns).
9.5 NOTICE OF DEFAULT.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless the Agent
has received notice from a Lender or the Borrower referring to the Credit
Document, describing such Default or Event of Default and stating that such
notice is a "notice of default." In the event that the Agent receives such
a notice, the Agent shall give prompt notice thereof to the Lenders. The
Agent shall take such action with respect to such Default or Event of
Default as shall be reasonably directed by the Required Lenders.
9.6 NON-RELIANCE ON AGENT AND OTHER LENDERS.
Each Lender expressly acknowledges that each of the Agent and its
officers, directors, employees, agents, attorneys-in-fact or affiliates has
not made any representations or warranties to it and that no act by the
Agent or any affiliate thereof hereinafter taken, including any review of
the affairs of the Borrower or any of its Affiliates, shall be deemed to
constitute any representation or warranty by the Agent to any Lender. Each
Lender represents to the Agent that it has, independently and without
reliance upon the Agent or any other Lender, and based on such documents
and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, assets, operations, property, financial
and other conditions, prospects and creditworthiness of the Borrower or its
Affiliates and made its own decision to make its Loans hereunder and enter
into this Credit Agreement. Each Lender also represents that it will,
independently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Credit Agreement, and to make such
investigation as it deems necessary to inform itself as to the business,
assets, operations, property, financial and other conditions, prospects and
creditworthiness of the Borrower and its Affiliates. Except for notices,
reports and other documents expressly required to be furnished to the
Lenders by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, assets, property, financial or other
conditions, prospects or creditworthiness of the Borrower or any of its
Affiliates which may come into the possession of the Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates.
9.7 INDEMNIFICATION.
The Lenders agree to indemnify the Agent in its capacity as such (to
the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to their respective
Commitments (or if the Commitments have expired or been terminated, in
accordance with the respective principal amounts of outstanding Loans and
Participation Interests of the Lenders), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at
any time (including without limitation at any time following the final
payment of all of the obligations of the Borrower hereunder and under the
other Credit Documents) be imposed on, incurred by or asserted against the
Agent in its capacity as such in any way relating to or arising out of this
Credit Agreement or the other Credit Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Agent
under or in connection with any of the foregoing; PROVIDED that no Lender
shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of the Agent. If any indemnity furnished to the Agent for any
purpose shall, in the opinion of the Agent, be insufficient or become
impaired, the Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional
indemnity is furnished. The agreements in this Section shall survive the
repayment of the Loans and other obligations under the Credit Documents and
the termination of the Commitments hereunder.
9.8 AGENT IN ITS INDIVIDUAL CAPACITY.
The Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower, its
Subsidiaries or their respective Affiliates as though the Agent were not
the Agent hereunder. With respect to the Loans made by and all obligations
of the Borrower hereunder and under the other Credit Documents, the Agent
shall have the same rights and powers under this Credit Agreement as any
Lender and may exercise the same as though it were not the Agent, and the
terms "Lender" and "Lenders" shall include the Agent in its individual
capacity.
9.9 SUCCESSOR AGENT.
The Agent may, at any time, resign upon 20 days' written notice to the
Lenders, and may be removed, upon show of cause, by the Required Lenders
upon 30 days' written notice to the Agent. Upon any such resignation or
removal, the Required Lenders shall have the right to appoint a successor
Agent; PROVIDED that, so long as no Default or Event of Default has
occurred and is continuing, such successor Agent shall be reasonably
acceptable to the Borrower. If no successor Agent shall have been so
appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the notice of resignation or notice of
removal, as appropriate, then the retiring Agent shall select a successor
Agent provided such successor is a Lender hereunder or a commercial bank
organized under the laws of the United States of America or of any State
thereof and has a combined capital and surplus of at least $400,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor,
such successor Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations as
Agent, as appropriate, under this Credit Agreement and the other Credit
Documents and the provisions of this Section 9 shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Agent
under this Credit Agreement.
9.10 DOCUMENTATION AGENT.
The Documentation Agent, in its capacity as such, shall have no
rights, powers, duties or obligations under this Credit Agreement or any of
the other Credit Documents.
SECTION 10
MISCELLANEOUS
10.1 NOTICES.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (i) when
delivered, (ii) when transmitted and received (by confirmation of receipt)
via telecopy (or other facsimile device) to the number set out below, (iii)
the day following the day on which the same has been delivered prepaid to a
reputable national overnight air courier service, or (iv) the third
Business Day following the day on which the same is sent by certified or
registered mail, postage prepaid, in each case to the respective parties at
the address, in the case of the Borrower and the Agent, set forth below,
and, in the case of the Lenders, set forth on SCHEDULE 2.1(A), or at such
other address as such party may specify by written notice to the other
parties hereto:
if to the Borrower:
AutoZone, Inc.
123 South Front Street
Memphis, TN 38103
Attn: Chief Financial Officer
Telephone: (901) 495-7181
Telecopy: (901) 495-8317
with a copy to the Treasurer and to the General Counsel for the
Borrower at the same address;
if to the Agent:
NationsBank, N.A.
Independence Center, 15th Floor
NC1-001-15-04
101 N. Tryon Street
Charlotte, North Carolina 28255
Attn: Agency Services
Telephone: (704) 388-3917
Telecopy: (704) 386-9923
with a copy to:
NationsBank, N.A.
NationsBank Corporate Center
NC1-007-8-7
100 N. Tryon Street
Attn: Mark Halmrast
Telephone: (704) 386-0649
Telecopy: (704) 386-1270
10.2 RIGHT OF SET-OFF.
In addition to any rights now or hereafter granted under applicable
law , and not by way of limitation of any such rights, upon the occurrence
of an Event of Default, each Lender is authorized at any time and from time
to time, without presentment, demand, protest or other notice of any kind
(all of which rights being hereby expressly waived), to set-off and to
appropriate and apply any and all deposits (general or special) and any
other indebtedness at any time held or owing by such Lender (including,
without limitation branches, agencies or Affiliates of such Lender wherever
located) to or for the credit or the account of the Borrower against
obligations and liabilities of such Person to such Lender hereunder, under
the Notes or the other Credit Documents , irrespective of whether such
Lender shall have made any demand hereunder and although such obligations,
liabilities or claims, or any of them, may be contingent or unmatured, and
any such set-off shall be deemed to have been made immediately upon the
occurrence of an Event of Default even though such charge is made or
entered on the books of such Lender subsequent thereto. Any Person
purchasing a participation in the Loans and Commitments hereunder pursuant
to Section 3.13 or Section 10.3(d) may exercise all rights of set-off with
respect to its participation interest as fully as if such Person were a
Lender hereunder.
10.3 BENEFIT OF AGREEMENT.
(a) GENERALLY. This Credit Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; PROVIDED that the
Borrower may not assign or transfer any of its interests without prior
written consent of the Lenders; PROVIDED FURTHER that the rights of
each Lender to transfer, assign or grant participations in its rights
and/or obligations hereunder shall be limited as set forth in this
Section 10.3, PROVIDED however that nothing herein shall prevent or
prohibit any Lender from (i) pledging its Loans hereunder to a Federal
Reserve Bank in support of borrowings made by such Lender from such
Federal Reserve Bank, or (ii) granting assignments or selling
participations in such Lender's Loans and/or Commitments hereunder to
its parent company and/or to any Affiliate or Subsidiary of such
Lender.
(b) ASSIGNMENTS. Each Lender may assign all or a portion of its
rights and obligations hereunder, pursuant to an assignment agreement
substantially in the form of SCHEDULE 10.3(B), to (i) any Lender or
any Affiliate or Subsidiary of a Lender, or (ii) any other commercial
bank, financial institution or "accredited investor" (as defined in
Regulation D of the Securities and Exchange Commission) that, so long
as no Default or Event of Default has occurred and is continuing, is
reasonably acceptable to the Borrower; PROVIDED that (i) any such
assignment (other than any assignment to an existing Lender) shall be
in a minimum aggregate amount of $5,000,000 (or, if less, the
remaining amount of the Commitment being assigned by such Lender) of
the Commitments and in integral multiples of $1,000,000 above such
amount, (ii) so long as no Event of Default has occurred and is
continuing, no Lender shall assign more than 50% of such Lender's
original Commitment and (iii) each such assignment shall be of a
constant, not varying, percentage of all such Lender's rights and
obligations under this Credit Agreement. Any assignment hereunder
shall be effective upon delivery to the Agent of written notice of the
assignment together with a transfer fee of $3,500 payable to the Agent
for its own account from and after the later of (i) the effective date
specified in the applicable assignment agreement and (ii) the date of
recording of such assignment in the Register pursuant to the terms of
subsection (c) below. The assigning Lender will give prompt notice to
the Agent and the Borrower of any such assignment. Upon the
effectiveness of any such assignment (and after notice to, and (to the
extent required pursuant to the terms hereof), with the consent of,
the Borrower as provided herein), the assignee shall become a "Lender"
for all purposes of this Credit Agreement and the other Credit
Documents and, to the extent of such assignment, the assigning Lender
shall be relieved of its obligations hereunder to the extent of the
Loans and Commitment components being assigned. Along such lines the
Borrower agrees that upon notice of any such assignment and surrender
of the appropriate Note or Notes, it will promptly provide to the
assigning Lender and to the assignee separate promissory notes in the
amount of their respective interests substantially in the form of the
original Note (but with notation thereon that it is given in
substitution for and replacement of the original Note or any
replacement notes thereof). By executing and delivering an assignment
agreement in accordance with this Section 10.3(b), the assigning
Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as
follows: (i) such assigning Lender warrants that it is the legal and
beneficial owner of the interest being assigned thereby free and clear
of any adverse claim; (ii) except as set forth in clause (i) above,
such assigning Lender makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with this Credit Agreement,
any of the other Credit Documents or any other instrument or document
furnished pursuant hereto or thereto, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this
Credit Agreement, any of the other Credit Documents or any other
instrument or document furnished pursuant hereto or thereto or the
financial condition of the Borrower or any of its respective
Affiliates or the performance or observance by the Borrower of any of
its obligations under this Credit Agreement, any of the other Credit
Documents or any other instrument or document furnished pursuant
hereto or thereto; (iii) such assignee represents and warrants that it
is legally authorized to enter into such assignment agreement; (iv)
such assignee confirms that it has received a copy of this Credit
Agreement, the other Credit Documents and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into such assignment agreement; (v)
such assignee will independently and without reliance upon the Agent,
such assigning Lender or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under
this Credit Agreement and the other Credit Documents; (vi) such
assignee appoints and authorizes the Agent to take such action on its
behalf and to exercise such powers under this Credit Agreement or any
other Credit Document as are delegated to the Agent by the terms
hereof or thereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations which by
the terms of this Credit Agreement and the other Credit Documents are
required to be performed by it as a Lender.
(c) MAINTENANCE OF REGISTER. The Agent shall maintain at one of
its offices in Charlotte, North Carolina (i) a copy of each Lender
assignment agreement delivered to it in accordance with the terms of
subsection (b) above and (ii) a register for the recordation of the
identity of the principal amount, type and Interest Period of each
Loan outstanding hereunder, the names, addresses and the Commitments
of the Lenders pursuant to the terms hereof from time to time (the
"REGISTER"). The Agent will make reasonable efforts to maintain the
accuracy of the Register and to promptly update the Register from time
to time, as necessary. The Register shall be prima facie, but not
conclusive, evidence of the information contained therein and the
Borrower, the Agent and the Lenders may treat each Person whose name
is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Credit Agreement. The Register
shall be available for inspection by the Borrower and each Lender, at
any reasonable time and from time to time upon reasonable prior
notice.
(d) PARTICIPATIONS. Each Lender may sell, transfer, grant or
assign participations in all or any part of such Lender's interests
and obligations hereunder; PROVIDED that (i) such selling Lender shall
remain a "Lender" for all purposes under this Credit Agreement (such
selling Lender's obligations under the Credit Documents remaining
unchanged) and the participant shall not constitute a Lender
hereunder, (ii) no such participant shall have, or be granted, rights
to approve any amendment or waiver relating to this Credit Agreement
or the other Credit Documents except to the extent any such amendment
or waiver would (A) reduce the principal of or rate of interest on or
Fees in respect of any Loans in which the participant is participating
or (B) postpone the date fixed for any payment of principal (including
extension of the Termination Date or the date of any mandatory
prepayment), interest or Fees in which the participant is
participating, and (iii) sub-participations by the participant (except
to an affiliate, parent company or affiliate of a parent company of
the participant) shall be prohibited. In the case of any such
participation, the participant shall not have any rights under this
Credit Agreement or the other Credit Documents (the participant's
rights against the selling Lender in respect of such participation to
be those set forth in the participation agreement with such Lender
creating such participation) and all amounts payable by the Borrower
hereunder shall be determined as if such Lender had not sold such
participation, PROVIDED, however, that such participant shall be
entitled to receive additional amounts under Sections 3.6, 3.9 and
3.11 on the same basis as if it were a Lender provided that it shall
not be entitled to receive any more than the selling Lender would have
received had it not sold the participation.
10.4 NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Agent or any Lender in
exercising any right, power or privilege hereunder or under any other
Credit Document and no course of dealing between the Agent or any Lender
and the Borrower shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any
other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder.
The rights and remedies provided herein are cumulative and not exclusive of
any rights or remedies which the Agent or any Lender would otherwise have.
No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Agent or the
Lenders to any other or further action in any circumstances without notice
or demand.
10.5 PAYMENT OF EXPENSES, ETC.
The Borrower agrees to: (a) pay all reasonable out-of-pocket costs
and expenses (i) of the Agent in connection with the negotiation,
preparation, execution and delivery and administration of this Credit
Agreement and the other Credit Documents and the documents and instruments
referred to therein (including, subject to agreed upon limitations, the
reasonable fees and expenses of Moore & Van Allen, PLLC, special counsel to
the Agent) and any amendment, waiver or consent relating hereto and thereto
including, but not limited to, any such amendments, waivers or consents
resulting from or related to any work-out, renegotiation or restructure
relating to the performance by the Borrower under this Credit Agreement and
(ii) of the Agent and the Lenders in connection with enforcement of the
Credit Documents and the documents and instruments referred to therein
(including, without limitation, in connection with any such enforcement,
the reasonable fees and disbursements of counsel (including allocated costs
of internal counsel) for the Agent and each of the Lenders); (b) pay and
hold each of the Lenders harmless from and against any and all future stamp
and other similar taxes with respect to the foregoing matters and save each
of the Lenders harmless from and against any and all liabilities with
respect to or resulting from any delay or omission (other than to the
extent attributable to such Lender) to pay such taxes; and (c) indemnify
each Lender, its officers, directors, employees, representatives and agents
from and hold each of them harmless against any and all losses,
liabilities, claims, damages or expenses incurred by any of them as a
result of, or arising out of, or in any way related to, or by reason of (i)
any investigation, litigation or other proceeding (whether or not any
Lender is a party thereto, but excluding any investigation initiated by the
Person seeking indemnification hereunder) related to the entering into
and/or performance of any Credit Document or the use of proceeds of any
Loans (including other extensions of credit) hereunder or the consummation
of any other transactions contemplated in any Credit Document, including,
without limitation, the reasonable fees and disbursements of counsel
(including allocated costs of internal counsel) incurred in connection with
any such investigation, litigation or other proceeding or (ii) the presence
or Release of any Materials of Environmental Concern at, under or from any
Property owned, operated or leased by the Borrower or any of its
Subsidiaries, or the failure by the Borrower or any of its Subsidiaries to
comply with any Environmental Law (but excluding, in the case of either of
clause (i) or (ii) above, any such losses, liabilities, claims, damages or
expenses to the extent (A) incurred by reason of gross negligence or
willful misconduct on the part of the Person to be indemnified, (B) owing
to the Borrower or (C) owing to another Person entitled to indemnification
hereunder).
10.6 AMENDMENTS, WAIVERS AND CONSENTS.
Neither this Credit Agreement nor any other Credit Document nor any of
the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination
is in writing entered into by, or approved in writing by, the Required
Lenders and the Borrower, PROVIDED, HOWEVER, that:
(a) no such amendment, change, waiver, discharge or termination
shall, without the consent of each Lender directly affected thereby,
(i) reduce the rate or extend the time of payment of interest (other
than as a result of waiving the applicability of any post-default
increase in interest rates) on any Loan or fees hereunder, (ii) reduce
the rate or extend the time of payment of any fees owing hereunder,
(iii) extend (A) the Commitments of the Lenders, or (B) the final
maturity of any Loan, or any portion thereof, or (iv) reduce the
principal amount on any Loan;
(b) no such amendment, change, waiver, discharge or termination
shall, without the consent of each Lender directly affected thereby,
(i) increase the Commitments of the Lenders over the amount thereof in
effect (it being understood and agreed that a waiver of any Default or
Event of Default shall not constitute a change in the terms of any
Commitment of any Lender), (ii) amend, modify or waive any provision
of this Section 10.6 or Section 3.6, 3.10, 3.11, 3.12, 3.13, 8.1(a),
10.2, 10.3, 10.5 or 10.9, (iii) reduce or increase any percentage
specified in, or otherwise modify, the definition of "Required
Lenders," or (iv) consent to the assignment or transfer by the
Borrower of any of its rights and obligations under (or in respect of)
the Credit Documents to which it is a party;
(c) no provision of Section 9 may be amended without the consent
of the Agent; and
(d) designation of the Master Account or of any Financial Officer
may not be made without the written consent of at least two Financial
Officers of the Borrower.
10.7 COUNTERPARTS.
This Credit Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all
of which shall constitute one and the same instrument. It shall not be
necessary in making proof of this Credit Agreement to produce or account
for more than one such counterpart.
10.8 HEADINGS.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or
construction of any provision of this Credit Agreement.
10.9 SURVIVAL.
All indemnities set forth herein, including, without limitation, in
Section 3.9, 3.11, 9.7 or 10.5 shall survive the execution and delivery of
this Credit Agreement, the making of the Loans, the repayment of the Loans
and other obligations under the Credit Documents and the termination of the
Commitments hereunder, and all representations and warranties made by the
Borrower herein shall survive delivery of the Notes and the making of the
Loans hereunder.
10.10 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL
BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NORTH CAROLINA. Any legal action or proceeding
with respect to this Credit Agreement or any other Credit Document may
be brought in the courts of the State of North Carolina in Mecklenburg
County, or of the United States for the Western District of North
Carolina, and, by execution and delivery of this Credit Agreement, the
Borrower hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the nonexclusive jurisdiction
of such courts. The Borrower further irrevocably consents to the
service of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to it at the address set out for
notices pursuant to Section 10.1, such service to become effective
three (3) days after such mailing. Nothing herein shall affect the
right of the Agent to serve process in any other manner permitted by
law or to commence legal proceedings or to otherwise proceed against
the Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with
this Credit Agreement or any other Credit Document brought in the
courts referred to in subsection (a) hereof and hereby further
irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE AGENT, THE
LENDERS AND THE BORROWER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
10.11 SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable
and the remaining provisions shall remain in full force and effect and
shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
10.12 ENTIRETY.
This Credit Agreement together with the other Credit Documents
represent the entire agreement of the parties hereto and thereto, and
supersede all prior agreements and understandings, oral or written, if any,
including any commitment letters or correspondence relating to the Credit
Documents or the transactions contemplated herein and therein.
10.13 BINDING EFFECT; TERMINATION.
(a) This Credit Agreement shall become effective at such time on
or after the Closing Date when it shall have been executed by the
Borrower and the Agent, and the Agent shall have received copies
hereof (telefaxed or otherwise) which, when taken together, bear the
signatures of each Lender, and thereafter this Credit Agreement shall
be binding upon and inure to the benefit of the Borrower, the Agent
and each Lender and their respective successors and assigns.
(b) The term of this Credit Agreement shall be until no Loans or
any other amounts payable hereunder or under any of the other Credit
Documents shall remain outstanding and until all of the Commitments
hereunder shall have expired or been terminated.
10.14 CONFIDENTIALITY.
The Agent and the Lenders agree to keep confidential (and to cause
their respective affiliates, officers, directors, employees, agents and
representatives to keep confidential) all information, materials and
documents furnished to the Agent or any such Lender by or on behalf of the
Borrower (whether before or after the Closing Date) which relates to the
Borrower or any of its Subsidiaries (the "Information"). Notwithstanding
the foregoing, the Agent and each Lender shall be permitted to disclose
Information (i) to its affiliates, officers, directors, employees, agents
and representatives in connection with its participation in any of the
transactions evidenced by this Credit Agreement or any other Credit
Documents or the administration of this Credit Agreement or any other
Credit Documents; (ii) to the extent required by applicable laws and
regulations or by any subpoena or similar legal process, or requested by
any Governmental Authority; (iii) to the extent such Information (A)
becomes publicly available other than as a result of a breach of this
Credit Agreement or any agreement entered into pursuant to clause (iv)
below, (B) becomes available to the Agent or such Lender on a non-
confidential basis from a source other than the Borrower or (C) was
available to the Agent or such Lender on a non-confidential basis prior to
its disclosure to the Agent or such Lender by the Borrower; (iv) to any
assignee or participant (or prospective assignee or participant) so long as
such assignee or participant (or prospective assignee or participant) first
specifically agrees in a writing furnished to and for the benefit of the
Borrower to be bound by the terms of this Section 10.14; or (v) to the
extent that the Borrower shall have consented in writing to such
disclosure. Nothing set forth in this Section 10.14 shall obligate the
Agent or any Lender to return any materials furnished by the Borrower.
10.15 SOURCE OF FUNDS.
Each of the Lenders hereby represents and warrants to the Borrower
that at least one of the following statements is an accurate representation
as to the source of funds to be used by such Lender in connection with the
financing hereunder:
(a) no part of such funds constitutes assets allocated to any
separate account maintained by such Lender in which any employee
benefit plan (or its related trust) has any interest;
(b) to the extent that any part of such funds constitutes assets
allocated to any separate account maintained by such Lender, such
Lender has disclosed to the Borrower the name of each employee benefit
plan whose assets in such account exceed 10% of the total assets of
such account as of the date of such purchase (and, for purposes of
this subsection (b), all employee benefit plans maintained by the same
employer or employee organization are deemed to be a single plan);
(c) to the extent that any part of such funds constitutes assets
of an insurance company's general account, such insurance company has
complied with all of the requirements of the regulations issued under
Section 401(c)(1)(A) of ERISA; or
(d) such funds constitute assets of one or more specific benefit
plans which such Lender has identified in writing to the Borrower.
As used in this Section 10.15, the terms "employee benefit plan" and
"separate account" shall have the respective meanings assigned to such
terms in Section 3 of ERISA.
10.16 CONFLICT.
To the extent that there is a conflict or inconsistency between any
provision hereof, on the one hand, and any provision of any Credit
Document, on the other hand, this Credit Agreement shall control.
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Credit Agreement to be duly executed and delivered as
of the date first above written.
BORROWER: AUTOZONE, INC.
a Nevada corporation
By: /s/ Robert J. Hunt
Name: Robert J. Hunt
Title: EVP, CFO
By: /s/ Harry L. Goldsmith
Name: Harry L. Goldsmith
Title: Sr. V.P.
LENDERS: NATIONSBANK, N.A.,
individually in its capacity as a
Lender and in its capacity as Agent
By: /s/ Mark D. Halmrast
Name: Mark D. Halmrast
Title: Senior Vice President
SUNTRUST BANK, NASHVILLE, N.A.,
individually in its capacity as a
Lender and in its capacity as
Documentation Agent
By: /s/ Bryan W. Ford
Name: Bryan W. Ford
Title: Vice President
SCHEDULE 1.1
APPLICABLE PERCENTAGE
Applicable Percentage Applicable Percentage
Pricing S&P/Moody's Consolidated for for
Level Rating Leverage Ratio Eurodollar Loans Facility Fee
- ------- ------------ -------------- --------------------- --------------------
Level I AA/Aa2 or above N.A. 12.5 bps for the period 6.25 bps
commencing on the Closing Date
through and including June 22,
1998; 20.0 bps for the period
commencing on June 23, 1998
through and including August
21, 1998; 27.5 bps for the
period commencing on August 22,
1998 through and including
November 19, 1998; and 35.0 bps
on and after November 20, 1998.
Level II A/A2 or above Less than or equal to 15.0 bps for the period 7.0 bps
0.25:1.00 commencing on the Closing Date
through and including June 22,
1998; 22.5 bps for the period
commencing on June 23, 1998
through and including August
21, 1998; 30.0 bps for the
period commencing on August 22,
1998 through and including
November 19, 1998; and 37.5 bps
on and after November 20, 1998.
Level III BBB+/Baa1 or above Greater than 0.25:1.00, 18.5 bps for the period 9.0 bps
but less than or equal commencing on the Closing Date
to 0.35:1.00 through and including June 22,
1998 26.0 bps for the period
commencing on June 23, 1998
through and including August
21, 1998; 33.5 bps for the
period commencing on August 22,
1998 through and including
November 19, 1998; and 41.0 bps
on and after November 20, 1998.
Level IV BBB/Baa2 or above Greater than 0.35:1.00, 25.0 bps for the period 12.5 bps
but less than or equal commencing on the Closing Date
to 0.40:1.00 through and including June 22,
1998; 32.5 bps for the period
commencing on June 23, 1998
through and including August
21, 1998; 40.0 bps for the
period commencing on August 22,
1998 through and including
November 19, 1998; and 47.5 bps
on and after November 20, 1998.
Level V BBB-/Baa3 Greater than 0.40:1.00 35.0 bps for the period 15.0 bps
commencing on the Closing Date
through and including June 22,
1998; 42.5 bps for the period
commencing on June 23, 1998
through and including August
21, 1998; 50.0 bps for the
period commencing on August 22,
1998 through and including
November 19, 1998; and 57.5 bps
on and after November 20, 1998.
If no Rating exists, the applicable Pricing Level shall be based on the
Consolidated Leverage Ratio. In the event of a Split Rating, the applicable
Pricing Level shall be based on the higher Rating. In the event of a Double
Split Rating, the applicable Pricing Level shall be based on the Pricing Level
which is one above that corresponding to the lower Rating. If the ratings and
the Consolidated Leverage Ratio indicate different Pricing Levels, the
applicable Pricing Level is the numerically lower of the two, except in the
instance of Pricing Level I where the Consolidated Leverage Ratio shall have no
effect.
As used herein:
"RATING" means the senior unsecured (non-credit enhanced) long term debt
rating of the Borrower, as published by S&P and/or Moody's.
"SPLIT RATING" means the ratings of S&P and Moody's would indicate
different Pricing Levels, but the Pricing Levels are not more than one Pricing
Level apart.
"DOUBLE SPLIT RATING" means the ratings of S&P and Moody's would indicate
different Pricing Levels, but the Pricing Levels are two or more Pricing Levels
apart.
SCHEDULE 2.1(A)
LENDERS
Commitment
Lender Percentage Commitment
- ------ ---------- ----------
NationsBank, N.A. 66.6666667% $100,000,000
NationsBank Corporate Center
NC1007-8-7
Charlotte, NC 28255
Attn: Jeb Ball
Tel: (704) 386-9718
Fax: (704) 388-0373
SunTrust Bank, Nashville, N.A. 33.3333333% $50,000,000
6410 Poplar Avenue
Suite 320
Memphis, TN 38119
Attn: Bryan W. Ford
Tel: (901) 766-7561
Fax: (901) 766-7565
SCHEDULE 2.1(B)(I)
FORM OF NOTICE OF BORROWING
NationsBank, N.A.,
as Agent for the Lenders
101 N. Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Ladies and Gentlemen:
The undersigned, AUTOZONE, INC. (the "BORROWER"), refers to the Credit
Agreement dated as of February 23, 1998 (as amended, modified, extended or
restated from time to time, the "CREDIT AGREEMENT"), among the Borrower, the
Lenders, NationsBank, N.A., as Agent, and SunTrust Bank, Nashville, N.A., as
Documentation Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The Borrower hereby gives notice pursuant to Section 2.1 of the Credit
Agreement that it requests a Loan advance under the Credit Agreement, and in
connection therewith sets forth below the terms on which such Loan advance is
requested to be made:
(a) Date of Borrowing
(which is a Business Day)
(b) Principal Amount of
Borrowing
(c) Interest rate basis
(d) Interest Period and the
last day thereof
In accordance with the requirements of Section 4.2, the Borrower hereby
reaffirms the representations and warranties set forth in the Credit Agreement
as provided in subsection (b) of such Section, and confirms that the matters
referenced in subsections (c), (d) and (e) of such Section, are true and
correct.
Very truly yours,
AUTOZONE, INC.
By:
Name:
Title:
SCHEDULE 2.1(E)
FORM OF NOTE
$_________________ February 23, 1998
FOR VALUE RECEIVED, AUTOZONE, INC., a Nevada corporation (the
"BORROWER"), hereby promises to pay to the order of __________________________,
its successors and assigns (the "LENDER"), at the office of NationsBank, N.A.,
as Agent (the "AGENT"), at 101 N. Tryon Street, Independence Center, NC1-001-
15-04, Charlotte, North Carolina 28255 (or at such other place or places as
the holder hereof may designate), at the times set forth in the Credit
Agreement, dated as of February 23, 1998, among the Borrower, the Lenders, the
Agent and the Documentation Agent (as it may be amended, modified, extended or
restated from time to time, the "CREDIT AGREEMENT"; all capitalized terms not
otherwise defined herein shall have the meanings set forth in the Credit
Agreement), but in no event later than the Termination Date, in Dollars and in
immediately available funds, the principal amount of
________________________DOLLARS ($____________) or, if less than such principal
amount, the aggregate unpaid principal amount of all Loans made by the Lender
to the Borrower pursuant to the Credit Agreement, and to pay interest from the
date hereof on the unpaid principal amount hereof, in like money, at said
office, on the dates and at the rates selected in accordance with Section
2.1(d) of the Credit Agreement.
Upon the occurrence and during the continuance of an Event of Default, the
balance outstanding hereunder shall bear interest as provided in Section 3.1 of
the Credit Agreement. Further, in the event the payment of all sums due
hereunder is accelerated under the terms of the Credit Agreement, this Note,
and all other indebtedness of the Borrower to the Lender shall become
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or accelerated
maturity, the Borrower agrees to pay, in addition to the principal and
interest, all costs of collection, including reasonable attorneys' fees.
All borrowings evidenced by this Note and all payments and prepayments of
the principal hereof and interest hereon and the respective dates thereof shall
be endorsed by the holder hereof on SCHEDULE A attached hereto and incorporated
herein by reference, or on a continuation thereof which shall be attached
hereto and made a part hereof; PROVIDED, HOWEVER, that any failure to endorse
such information on such schedule or continuation thereof shall not in any
manner affect the obligation of the Borrower to make payments of principal and
interest in accordance with the terms of this Note.
This Note and the Loans evidenced hereby may be transferred in whole or in
part only by registration of such transfer on the Register maintained by or on
behalf of the Borrower as provided in Section 10.3(c) of the Credit Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed
by its duly authorized officer as of the day and year first above written.
AUTOZONE, INC.
By:
Name:
Title:
By:
Name:
Title:
SCHEDULE A TO THE
NOTE
OF AUTOZONE, INC.
DATED FEBRUARY 23, 1998
Unpaid Name of
Type Principal Person
of Interest Payments Balance Making
Date Loan Period Principal Interest of Note Notation
- ----- ----- -------- ------------------ ------- --------
SCHEDULE 3.2
FORM OF NOTICE OF EXTENSION/CONVERSION
NationsBank, N.A.,
as Agent for the Lenders
101 N. Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Ladies and Gentlemen:
The undersigned, AutoZone, Inc. (the "BORROWER"), refers to the Credit
Agreement dated as of February 23, 1998 (as amended, modified, extended or
restated from time to time, the "CREDIT AGREEMENT"), among the Borrower, the
Lenders, NationsBank, N.A., as Agent, and SunTrust Bank, Nashville, N.A., as
Documentation Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The Borrower hereby gives notice pursuant to Section 3.2 of the Credit
Agreement that it requests an extension or conversion of a Loan outstanding
under the Credit Agreement, and in connection therewith sets forth below the
terms on which such extension or conversion is requested to be made:
(a) Date of Extension or Conversion
(which is the last day of the
the applicable Interest Period)
(b) Principal Amount of
Extension or Conversion
(c) Interest rate basis
(d) Interest Period and the
last day thereof
In accordance with the requirements of Section 4.2, the Borrower hereby
reaffirms the representations and warranties set forth in the Credit Agreement
as provided in subsection (b) of such Section, and confirms that the matters
referenced in subsections (c), (d) and (e) of such Section, are true and
correct.
Very truly yours,
AUTOZONE, INC.
By:
Name:
Title:
SCHEDULE 5.12
LIST OF SUBSIDIARIES
[chart of AutoZone, Inc. subsidiaries appears here containing:
AutoZone, Inc.
AutoZone de Mexico
Service Zone de Mexico
Data Zone de Mexico
AutoZone Management, L.P.
AutoZone Texas, L.P.
ADAP, Inc.
Alldata Corporation
AutoZone Stores, Inc.
AutoZone Properties, Inc.
AutoZone Development Corporation
AutoZoners, Inc.
AutoZone Marketing Company
AutoZone Leadership, Inc.]
SCHEDULE 6.2
FORM OF OFFICER'S COMPLIANCE CERTIFICATE
For the fiscal quarter ended _________________, 19___.
I, ______________________, [Title] of AutoZone, Inc. (the "BORROWER")
hereby certify that, to the best of my knowledge and belief, with respect to
that certain Credit Agreement dated as of February 23, 1998 (as amended,
modified, extended or restated from time to time, the "CREDIT AGREEMENT"; all
of the defined terms in the Credit Agreement are incorporated herein by
reference) among the Borrower, the Lenders party thereto, NationsBank, N.A., as
Agent, and SunTrust Bank, Nashville, N.A., as Documentation Agent:
. The company-prepared financial statements which accompany this
certificate are true and correct in all material respects and have
been prepared in accordance with GAAP applied on a consistent basis,
subject to changes resulting from normal year-end audit adjustments.
. Since ___________ (the date of the last similar certification, or, if
none, the Closing Date) no Default or Event of Default has occurred
under the Credit Agreement; and
Delivered herewith are detailed calculations demonstrating compliance by the
Borrower with the financial covenant contained in Section 6.10 of the
Incorporated Covenants as of the end of the fiscal period referred to above.
This ______ day of ___________, 19__.
AUTOZONE, INC.
By:
Name:
Title:
SCHEDULE 10.3(B)
FORM OF ASSIGNMENT AND ACCEPTANCE
THIS ASSIGNMENT AND ACCEPTANCE dated as of _______________, 199_ is
entered into between ________________ ("ASSIGNOR") and ____________________
("ASSIGNEE").
Reference is made to the Credit Agreement dated as of February 23, 1998,
as amended and modified from time to time thereafter (the "CREDIT AGREEMENT")
among AutoZone, Inc., the Lenders party thereto, NationsBank, N.A., as Agent,
and SunTrust Bank, Nashville, N.A., as Documentation Agent. Terms defined in
the Credit Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor,
effective as of the Effective Date set forth below, the interests set forth
below (the "ASSIGNED INTEREST") in the Assignor's rights and obligations under
the Credit Agreement, including, without limitation, the interests set forth
below in the Commitments and outstanding Loans of the Assignor on the effective
date of the assignment designated below (the "EFFECTIVE DATE"), together with
unpaid Fees accrued on the assigned Commitments to the Effective Date and
unpaid interest accrued on the assigned Loans to the Effective Date. Each of
the Assignor and the Assignee hereby makes and agrees to be bound by all the
representations, warranties and agreements set forth in Section 10.3(b) of the
Credit Agreement, a copy of which has been received by the Assignee. From and
after the Effective Date (i) the Assignee, if it is not already a Lender under
the Credit Agreement, shall be a party to and be bound by the provisions of the
Credit Agreement and, to the extent of the interests purchased and assumed by
the Assignee under this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
of the interests sold and assigned by the Assignor under this Assignment and
Acceptance, relinquish its rights and be released from its obligations under
the Credit Agreement.
2. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of North Carolina.
3. Terms of Assignment
(a) Date of Assignment:
(b) Legal Name of Assignor:
(c) Legal Name of Assignee:
(d) Effective Date of Assignment:
(e) Commitment of Assignee
after giving effect to this
Assignment and Acceptance as
of the Effective Date $_________________
(f) Commitment of Assignor
after giving effect to this
Assignment and Acceptance as
of the Effective Date $_________________
(g) Commitment Percentage of Assignee
after giving effect to this
Assignment and Acceptance
as of the Effective Date
(set forth to at least 8 decimals) %
(h) Commitment Percentage of Assignor
after giving effect to this
Assignment and Acceptance
as of the Effective Date
(set forth to at least 8 decimals) %
4. This Assignment and Acceptance shall be effective only upon consent
of the Borrower and the Agent, if applicable, delivery to the Agent of this
Assignment and Acceptance together with the transfer fee payable pursuant to
Section 10.3(b) in connection herewith and recordation in the Register pursuant
to Section 10.3(c) of the terms hereof.
5. This Assignment and Acceptance may be executed in any number of
counterparts, each of which where so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Assignment and Acceptance to
produce or account for more than one such counterpart.
The terms set forth above
are hereby agreed to:
, as Assignor
By:
Name:
Title:
, as Assignee
By:
Name:
Title:
Notice address of Assignee:
<>
5
1000
9-MOS
AUG-29-1998
MAY-9-1998
5869
0
19304
0
768540
853279
1569967
326379
2210688
634639
0
0
0
1527
1223197
2210688
2026032
2026032
1180830
1180830
618015
0
9747
217440
81600
0
0
0
0
135840
.89
.88
5
1000
9-MOS 9-MOS
AUG-30-1997 AUG-31-1996
MAY-10-1997 MAY-4-1996
4838 4782
0 0
22435 15083
0 0
750569 531255
824184 592692
1224666 964254
244522 176615
1827034 1404008
609054 589762
0 0
0 0
0 0
1510 1496
989018 793379
1827034 1404008
1745052 1413042
1745052 1413042
1008823 828322
1008823 828322
548339 425467
0 0
5955 727
181935 158526
68450 58800
0 0
0 0
0 0
0 0
113485 99726
.75 .67
.74 .66
