Exhibit 99.1
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PATHMARK STORES, INC.
$250,000,000
Amended and Restated Credit Agreement
dated as of October 1, 2004
The Lenders Party Hereto
Banc of America Securities LLC
as Arranger
Fleet Retail Group, Inc.
as Administrative Agent and as Collateral Agent
GMAC Commercial Finance LLC and General Electric Capital Corporation,
as co-Documentation Agents
The CIT Group/Business Credit, Inc.
as Syndication Agent
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TABLE OF CONTENTS
Page
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ARTICLE I Definitions..........................................................1
SECTION 1.01 Defined Terms..........................................1
SECTION 1.02 Classification of Loans and Borrowings................24
SECTION 1.03 Terms Generally.......................................24
SECTION 1.04 Accounting Terms; GAAP................................25
ARTICLE II The Credits........................................................25
SECTION 2.01 Commitments...........................................25
SECTION 2.02 Reserves..............................................25
SECTION 2.03 Loans and Borrowings..................................25
SECTION 2.04 Requests for Borrowings...............................26
SECTION 2.05 Swingline Loans.......................................27
SECTION 2.06 Letters of Credit.....................................28
SECTION 2.07 Funding of Borrowings.................................32
SECTION 2.08 Settlement Amongst Lenders............................33
SECTION 2.09 Interest Elections....................................33
SECTION 2.10 Termination and Reduction of Commitments..............35
SECTION 2.11 Repayment of Loans; Evidence of Debt..................35
SECTION 2.12 Prepayment of Loans...................................36
SECTION 2.13 Fees..................................................38
SECTION 2.14 Interest..............................................39
SECTION 2.15 Alternate Rate of Interest............................40
SECTION 2.16 Increased Costs.......................................41
SECTION 2.17 Break Funding Payments................................42
SECTION 2.18 Taxes.................................................43
SECTION 2.19 Payments Generally; Pro Rata Treatment;
Sharing of Set-offs...................................44
SECTION 2.20 Mitigation Obligations; Replacement of Lenders........46
ARTICLE III Representations and Warranties....................................47
SECTION 3.01 Organization; Powers..................................47
SECTION 3.02 Authorization; Enforceability.........................47
SECTION 3.03 Governmental Approvals; No Conflicts..................47
SECTION 3.04 Financial Condition; No Material Adverse Change.......48
SECTION 3.05 Properties............................................48
SECTION 3.06 Litigation and Environmental Matters, Etc.............49
SECTION 3.07 Compliance with Laws and Agreements...................49
SECTION 3.08 Investment and Holding Company Status.................50
SECTION 3.09 Taxes.................................................50
(i)
SECTION 3.10 ERISA.................................................50
SECTION 3.11 Disclosure............................................50
SECTION 3.12 Subsidiaries..........................................50
SECTION 3.13 Insurance.............................................51
SECTION 3.14 Labor Matters.........................................51
SECTION 3.15 Solvency..............................................51
SECTION 3.16 Security Documents....................................51
SECTION 3.17 Federal Reserve Regulations...........................52
SECTION 3.18 DDAs..................................................52
SECTION 3.19 Credit Card Arrangements..............................53
ARTICLE IV Conditions.........................................................53
SECTION 4.01 Effective Date........................................53
SECTION 4.02 Initial and Subsequent Extensions of Credit...........57
ARTICLE V Affirmative Covenants...............................................57
SECTION 5.01 Financial Statements and Other Information............58
SECTION 5.02 Notices of Material Events............................60
SECTION 5.03 Information Regarding Collateral......................60
SECTION 5.04 Existence; Conduct of Business........................61
SECTION 5.05 Payment of Obligations................................61
SECTION 5.06 Maintenance of Properties.............................61
SECTION 5.07 Insurance.............................................61
SECTION 5.08 Casualty and Condemnation.............................62
SECTION 5.09 Books and Records; Inspection.........................62
SECTION 5.10 Compliance with Laws..................................62
SECTION 5.11 Use of Proceeds and Letters of Credit.................62
SECTION 5.12 Subsidiaries..........................................63
SECTION 5.13 Further Assurances....................................63
SECTION 5.14 Physical Inventories. ..............................65
ARTICLE VI Negative Covenants.................................................65
SECTION 6.01 Indebtedness; Certain Equity Securities...............66
SECTION 6.02 Liens.................................................67
SECTION 6.03 Fundamental Changes...................................69
SECTION 6.04 Investments, Loans, Advances, Guarantees
and Acquisitions......................................70
SECTION 6.05 Asset Sales...........................................71
SECTION 6.06 Sale/Leaseback Transactions...........................72
SECTION 6.07 Hedging Agreements....................................73
SECTION 6.08 Restricted Payments...................................73
SECTION 6.09 Transactions with Affiliates..........................73
SECTION 6.10 Restrictive Agreements................................73
SECTION 6.11 Amendment of Material Documents.......................74
SECTION 6.12 Sale or Discount of Receivables.......................75
SECTION 6.13 Fiscal Year...........................................75
SECTION 6.14 Initial Subordinated Indebtedness.....................75
(ii)
SECTION 6.15 Cash Capital Expenditures.............................75
SECTION 6.16 Minimum Inventory.....................................76
SECTION 6.17 Minimum Consolidated EBITDA...........................76
ARTICLE VII Events of Default.................................................76
ARTICLE VIII The Administrative Agent.........................................79
ARTICLE IX Miscellaneous......................................................81
SECTION 9.01 Notices...............................................81
SECTION 9.02 Waivers; Amendments...................................81
SECTION 9.03 Expenses; Indemnity; Damage Waiver....................83
SECTION 9.04 Successors and Assigns................................85
SECTION 9.05 Survival..............................................87
SECTION 9.06 Counterparts; Integration; Effectiveness..............88
SECTION 9.07 Severability..........................................88
SECTION 9.08 Right of Setoff.......................................88
SECTION 9.09 Governing Law; Jurisdiction; Consent to
Service of Process....................................89
SECTION 9.10 WAIVER OF JURY TRIAL..................................90
SECTION 9.11 Headings..............................................90
SECTION 9.12 Confidentiality.......................................90
SECTION 9.13 Interest Rate Limitation..............................90
SECTION 9.14 Designated Senior Indebtedness. .....................91
SECTION 9.15 Existing Credit Agreement Amended and Restated........91
SCHEDULES:
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Schedule 1.01(a) -- Mortgaged Properties
Schedule 1.01(b) -- Stores Held for Sale
Schedule 2.0 -- Commitments
Schedule 3.04(c) -- Certain Material Adverse Changes
Schedule 3.05(c) -- Real Property
Schedule 3.05(d) -- Condemnation Proceedings and Sales
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 3.18 -- DDA's
Schedule 3.19 -- Credit Card Arrangements
Schedule 5.13 -- Cash Management Provisions
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens and Covered Real Property
Schedule 6.04 -- Existing Investments
Schedule 6.10 -- Existing Restrictions
EXHIBITS:
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(iii)
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of Shearman & Sterling
Exhibit B-2 -- Form of Opinion of General Counsel of the Borrower
Exhibit C -- Form of Opinion of Local Counsel
Exhibit D -- Form of Guarantee Agreement
Exhibit E -- Form of Indemnity, Subrogation and Contribution Agreement
Exhibit F -- Form of Pledge Agreement
Exhibit G -- Form of Security Agreement
Exhibit H -- Form of Mortgage
Exhibit H-1 -- Form of Mortgage Amendment
(iv)
AMENDED AND RESTATED CREDIT AGREEMENT dated as of October 1, 2004,
among PATHMARK STORES, INC., the LENDERS party hereto, FLEET RETAIL GROUP, INC.
as Administrative Agent and as Collateral Agent, GMAC Commercial Finance LLC and
General Electric Capital Corporation, as co-Documentation Agents, and The CIT
Group/ Business Credit, Inc., as Syndication Agent.
W I T N E S S E T H
WHEREAS, the Borrower has entered into a Credit Agreement dated as of
September 19, 2000 with, among others, JPMorgan Chase Bank (f/k/a The Chase
Manhattan Bank), as Administrative Agent for the lenders party thereto and such
lenders (as amended and in effect, the "Existing Credit Agreement"); and
WHEREAS, JPMorgan Chase Bank will resign as Administrative Agent under
the Existing Credit Agreement on the Effective Date (defined below) and Fleet
Retail Group, Inc. shall be appointed as Administrative Agent and as Collateral
Agent; and
WHEREAS, certain of the lenders under the Existing Credit Agreement
have assigned their rights and obligations thereunder to Persons who are, or
shall become, Lenders under this Agreement; and
WHEREAS, the Borrower and the remaining Lenders desire to amend and
restate the Existing Credit Agreement as provided herein.
NOW, THEREFORE, the parties hereto agree that the Existing Credit
Agreement shall be amended and restated in its entirety to read as follows:
ARTICLE I
Definitions
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SECTION 1.01 Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any LIBOR Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means Fleet Retail Group, Inc., in its capacity
as administrative agent for the Lenders hereunder.
Schedule 6.10
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"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day, and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means (a) with respect to any Revolving Lender
for purposes of SECTION 2.04, SECTION 2.05, SECTION 2.09 or SECTION 9.03(c), to
the extent relating to Letters of Credit or Swingline Loans, the percentage of
the total Revolving Commitments represented by such Lender's Revolving
Commitment and (b) with respect to any Lender in respect of any indemnity claim
under SECTION 9.03(c) with respect to the Administrative Agent, the percentage
of the total of the Revolving Exposures, outstanding Term Loans and unused
Commitments of all Classes hereunder represented by the aggregate amount of such
Lender's Revolving Exposure, outstanding Term Loans and unused Commitments. If
the Revolving Commitments hereunder have terminated or expired, the Applicable
Percentages shall be determined based upon the Revolving Commitments most
recently in effect, giving effect to any assignments.
"Applicable Rate" means, for any day, with respect to any Loan, the
applicable rate per annum set forth below under the caption "ABR Spread or
"LIBOR Spread", as the case may be, in each case based upon the Average Excess
Availability as of the most recent determination date:
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Average Excess ABR LIBOR
Availability Spread Spread
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Category 1 0% 1.50%
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Greater than
$150,000,000
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Category 2
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Less than or equal to
$150,000,000 but greater
than or equal to 0% 1.75%
$75,000,000
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Category 3
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Less than $75,000,000 but
greater than or equal to 0% 2.00%
$25,000,000
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Category 4 0% 2.25%
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Less than $25,000,000
=================================================================
(2)
Except as provided in the following two sentences, the Applicable Rate
shall be adjusted quarterly as of the first day of each fiscal quarter, based
upon the Average Excess Availability for the immediately preceding fiscal
quarter. In no event shall the Applicable Rate be set at Category 1 or Category
2 prior to the first day of the third fiscal quarter after of the Effective Date
(even if the Average Excess Availability requirements for Category 1 or Category
2 have been met).Upon the occurrence, and during the continuance, of an Event of
Default, at the option of the Administrative Agent or upon the direction of the
Required Lenders, the Applicable Rate shall be immediately increased to the
percentages set forth in Level 4 (even if the Average Excess Availability
requirements for another Level have been met) and interest shall be determined
in the manner set forth in SECTION 2.14.
"Asset Sale" means (a) the sale by the Borrower or any Subsidiary to
any Person other than the Borrower or any wholly owned Subsidiary of (i) any of
the stock of any Subsidiary or (ii) any other assets (whether tangible or
intangible) of the Borrower or any Subsidiary and (b) the assignment by the
Borrower or any Subsidiary to any Person other than the Borrower or any wholly
owned Subsidiary of any lease, whether a Capital Lease Obligation or an
Operating Lease, to which it is a party as lessee.
"Asset Swap" means any transaction or series of related transactions
pursuant to which the Borrower or one or more of the Subsidiaries shall
exchange, with a Person not a Subsidiary, one or more stores or facilities owned
by them for one or more stores or facilities owned by third parties where no
more than 10% of the aggregate consideration delivered by the Borrower and the
Subsidiaries shall consist of consideration other than the stores and facilities
being so exchanged.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by SECTION 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Average Excess Availability" means at any time of calculation, the
daily average of the difference between the then outstanding Commitments and the
then outstanding Credit Extensions for the immediately preceding fiscal quarter
of the Borrower.
"Average Liquidation Value" means the mid point between the Estimated
Liquidation Value High and the Estimated Liquidation Value Low of the Mortgaged
Properties as reflected from time to time in an evaluation prepared by Keen
Realty, LLC or such other Person as is reasonably acceptable to the Borrower and
the Administrative Agent.
"Bankruptcy Code" means the Federal Bankruptcy Code of 1978, as amended
from time to time.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means Pathmark Stores, Inc., a Delaware corporation.
(3)
"Borrowing" means (a) Loans of the same Class and Type, made, converted
or continued on the same date and, in the case of LIBOR Loans, as to which a
single Interest Period is in effect, or (b) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a Borrowing in
accordance with SECTION 2.04.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in Boston, Massachusetts, Charlotte, North
Carolina or New York City are authorized or required by law to remain closed,
provided that, when used in connection with a LIBOR Loan, the term "Business
Day" shall also exclude any day on which banks are not open for dealings in
dollar deposits in the London interbank market.
"Capital Lease" of any Person means any lease of real or personal
property or a combination thereof, by such Person as Lessee that is required to
be classified and accounted for as a capital lease on a balance sheet of such
Person under GAAP.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any Capital Lease, and the amount of
such obligations shall be the capitalized amount thereof determined in
accordance with GAAP.
"Cash Capital Expenditures" means, for any period, the sum (without
duplication) of the cash additions to property, plant and equipment and other
cash capital expenditures of the Borrower and its consolidated Subsidiaries that
are (or would be) set forth in a consolidated statement of cash flows of the
Borrower for such period prepared in accordance with GAAP, excluding, however,
from the calculation of Cash Capital Expenditures any such cash expenditures
made in connection with Capital Lease Obligations.
"Cash Collateral Account" has the meaning assigned to such term in
SECTION 2.06(j).
"Cash-Pay Preferred Stock" means Preferred Stock (i) that requires, or
would require, periodic payment of cash dividends or (ii) that requires, or
would require, the issuer thereof to make any other payment (including in
respect of any sinking fund or similar deposit) in cash under any circumstances
(whether as dividends, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such stock or otherwise) on any
date prior to the date that is six months after the Term Loan Maturity Date.
"CERCLA" means the Comprehensive Environmental Response, Compensation,
and Liability Act, 42 U.S.C. ss. 9601 et seq.
"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), other than
the two largest shareholders of the Borrower on the Effective Date, of shares
representing more than 25% of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of the Borrower, (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the
Borrower by Persons who were neither
(4)
(i) nominated by the board of directors of the Borrower nor (ii) appointed by
directors so nominated or (c) the occurrence of any change of control event as
defined in any indenture in respect of the Initial Subordinated Indebtedness
requiring the Borrower to prepay, redeem or repurchase (or make an offer to
prepay, redeem or repurchase) any portion of such Initial Subordinated
Indebtedness.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or Issuing Bank
(or, for purposes of SECTION 2.16(b), by any lending office of such Lender or by
such Lender's or Issuing Bank's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Term Loans, or Swingline Loans and, when used in reference to any Commitment,
refers to whether such Commitment is a Revolving Commitment or Term Commitment.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral" means any and all "Collateral", as defined in any
applicable Security Document.
"Commercial Letter of Credit" means any letter of credit or similar
instrument issued for the purpose of providing the primary payment mechanism in
connection with the purchase of any materials, goods or services by the Borrower
or any Subsidiary in the ordinary course of business of the Borrower or such
Subsidiary.
"Commitment" means a Revolving Commitment or Term Commitment, or any
combination thereof (as the context requires).
"Consolidated EBITDA" means, for any period, Consolidated Net Income
for such period, plus, without duplication and to the extent deducted from
revenues in determining Consolidated Net Income, the sum of (a) the aggregate
amount of Consolidated Interest Expense for such period, (b) the aggregate
amount of letter of credit fees paid during such period, (c) provisions for
taxes based on income for such period, (d) all amounts attributable to
depreciation and amortization for such period, (e) other non-cash items
(including charges for inventory accounted for on a last in, first out basis)
reducing Consolidated Net Income for such period and (f) all extraordinary
charges during such period, and minus, without duplication and to the extent
increasing Consolidated Net Income for such period, (g) all extraordinary gains
during such period, (h) net gains (howsoever classified) from the sale of Real
Property Assets in excess of $10,000,000 during any four fiscal quarter period,
and (i) other non-cash items (other than pension income related to the
Borrower's qualified pension plan, to the extent such pension income constitutes
a non-cash item) during such period, all as determined on a consolidated basis
with respect to the Borrower and its consolidated Subsidiaries in accordance
with GAAP.
(5)
"Consolidated Interest Expense" means, for any period, the interest
expense, both expensed and capitalized (including the interest component in
respect of Capital Lease Obligations), accrued or paid by the Borrower and its
consolidated Subsidiaries during such period, determined on a consolidated basis
in accordance with GAAP, including all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance financing
and net costs under Hedging Agreements, but excluding (a) any amounts referred
to in the Fee Letter payable to the Administrative Agent and the Lenders on or
before the Effective Date and (b) any deferred financing expenses amortized by
the Borrower and the Subsidiaries during such period.
"Consolidated Net Income" means, for any period, net income or loss of
the Borrower and its consolidated Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, provided that there shall be
excluded (a) the income (or loss) of any Person in which any other Person (other
than the Borrower or any of its consolidated Subsidiaries or any director
holding qualifying shares in compliance with applicable law) has a joint
interest, except to the extent of the amount of dividends or other distributions
actually paid to the Borrower or any of its consolidated Subsidiaries by such
Person during such period and (b) the income (or loss) of any Person accrued
prior to the date it becomes a Subsidiary or is merged into or consolidated with
the Borrower or any of its consolidated Subsidiaries or the date that Person's
assets are acquired by the Borrower or any of its consolidated Subsidiaries.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise. The
terms "Controlling" and "Controlled" have meanings correlative thereto.
"Credit Extensions" means as of any day, the sum of (a) the principal
balance of all Loans then outstanding, and (b) the then amount of the LC
Exposure.
"DDAs" has the meaning set forth in SECTION 3.18 hereof.
"Default" means any event or condition that constitutes an Event of
Default or that upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" has the meaning assigned to such term in SECTION
3.06(b).
"dollars" or "$" refers to lawful money of the United States of
America.
"Effective Date" means the date on which the conditions specified in
SECTION 4.01 are satisfied (or waived in accordance with SECTION 9.02).
"Employee Stock Option Plan" means, collectively, (a) the Pathmark
Stores, Inc. 2000 Equity Plan and (b) the Pathmark Stores, Inc. 2000
Non-Employee Directors Equity Plan.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions or binding agreements
issued, promulgated or entered into by or with any Governmental Authority,
relating to the environment, preservation or reclamation of
(6)
natural resources, the handling, treatment, storage, disposal, Release or
threatened Release of any Hazardous Material or to public or employee health and
safety matters.
"Environmental Liability" means any liability (including any liability
for damages, natural resource damage, costs of environmental remediation,
administrative oversight costs, fines or penalties) of the Borrower or any
Subsidiary actually incurred and directly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the Release or threatened Release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equipment" shall have the meaning assigned to such term in the
Security Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Event of Default" has the meaning assigned to such term in Article
VII.
"Excess Availability" means at any time of calculation, the difference
between (a) the then outstanding Commitments and (b) the then outstanding Credit
Extensions.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute.
(7)
"Excluded Asset Sales" means (a) sales of (i) manufacturers' coupons to
entities engaged in the business of processing such coupons and obtaining
payment from the issuers thereof and (ii) receivables from third-party
healthcare providers and insurers, relating to reimbursements owed to the
Borrower or the Subsidiaries in connection with the sale of prescription
medicines, medical devices and other healthcare products, to entities engaged in
the business of processing and collecting such receivables from the obligors
thereunder, (b) sales of stores and related store assets listed on Schedule
1.01(b) and (c) sales of inventory made in connection with any transfer of
assets of the Borrower or the Subsidiaries, relating to the inventory
distribution functions of the Borrower's or such Subsidiary's business, to third
parties who will perform such functions under contractual out-sourcing
arrangements.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, any Issuing Bank or any other recipient in respect of any payment to be
made by or on account of any obligation of the Borrower hereunder, (a) taxes
imposed on (or measured by) its net income or overall gross receipts or
franchise taxes imposed (i) by the United States of America, (ii) by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, or as a result of a branch office (other
than a branch office that is deemed to exist solely as a result of the Loans or
any transaction contemplated hereunder) in the jurisdiction imposing such tax or
(iii) solely as a result of activities of such Lender that are unrelated to this
transaction in the jurisdiction imposing such tax, (b) any branch profits taxes
imposed by the United States of America or any similar tax imposed by any other
jurisdiction in which the principal office, applicable lending office or any
branch office (other than a branch office that is deemed to exist solely as a
result of the Loans or any other transaction contemplated hereunder) of any
Lender is located and (c) in the case of a Foreign Lender (other than an
assignee pursuant to a request by the Borrower under SECTION 2.20(b)), any
withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement, designates a new
lending office, becomes a party to a merger or to a similar conveyance of its
assets in which such Foreign Lender goes out of existence or is attributable to
such Foreign Lender's failure to comply with SECTION 2.18(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to SECTION 2.18(a) and complies with SECTION 2.18(e).
"Existing Credit Agreement" is defined in the recitals hereto.
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
(8)
"Fee Letter" means the letter entitled "Fee Letter" among the Borrowers
and the Administrative Agent dated as of October 1, 2004, as such letter may
from time to time be amended.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Financing Transactions" means the execution, delivery and performance
by each Loan Party of the Loan Documents to which it is to be a party, the
borrowing of Loans, the use of the proceeds thereof on the Effective Date and
the issuance of Letters of Credit hereunder.
"Fiscal Year" means the fiscal year of the Borrower and the
Subsidiaries ending on the Saturday closest to January 31 of each calendar year.
For purposes of this Agreement, any particular Fiscal Year shall be designated
by reference to the calendar year in which such Fiscal Year commences; thus, the
2004 Fiscal Year is the Fiscal Year ending on or about January 29, 2005.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized under the
laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government and, for purposes of SECTION 2.16(b), the National Association of
Insurance Commissioners.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including any
obligation of the guarantor, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness of the payment
thereof, (c) to maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or (d) as an account party in respect
of any letter of credit or
(9)
letter of guaranty issued to support such Indebtedness, provided that the term
"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business.
"Guarantee Agreement" means the Guarantee Agreement, substantially in
the form of Exhibit D, made by the Subsidiary Loan Parties in favor of the
Administrative Agent for the benefit of the Secured Parties.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants or
contaminants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other materials, substances or wastes of any nature
regulated pursuant to any Environmental Law, including any material listed as a
hazardous substance under Section 101(14) of CERCLA.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement
entered into by the Borrower or any Subsidiary.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or advances of any kind, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person under conditional sale or other
title retention agreements relating to property acquired by such Person, (d) all
obligations of such Person in respect of the deferred purchase price of property
or services (excluding current accounts payable incurred in the ordinary course
of business), (e) all Indebtedness of others secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on property owned or acquired by such Person, whether or
not the Indebtedness secured thereby has been assumed, (f) all Guarantees by
such Person of Indebtedness of others, (g) all Capital Lease Obligations of such
Person, (h) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit, (i) all obligations, contingent
or otherwise, of such Person in respect of bankers' acceptances, and (j) all
obligations with respect to Hedging Agreements. The Indebtedness of any Person
shall include the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnity, Subrogation and Contribution Agreement" means the
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit E, among the Borrower, the Subsidiary Loan Parties and the
Administrative Agent.
"Information Memorandum" means the Confidential Information Memorandum
dated September, 2004 relating to the Borrower and the Financing Transactions.
(10)
"Initial Subordinated Indebtedness" means the 8 3/4% Senior
Subordinated Notes due 2012 issued on January 29, 2002 in the face amount of
$200,000,000, on September 19, 2003 in the face amount of $100,000,000 and on
December 18, 2003 in the face amount of $50,000,000, each of which were issued
pursuant to that certain Indenture dated as of January 29, 2002, supplemented by
a First Supplemental Indenture dated as of January 30, 2002, among the Borrower,
as Issuer, the subsidiary guarantors thereunder and ▇▇▇▇▇ Fargo Minnesota,
National Association, as Trustee.
"Interest Election Request" means a request by the Borrower to convert
or continue a Revolving Borrowing or Term Borrowing in accordance with SECTION
2.09.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
first day of each month, (b) with respect to any LIBOR Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a LIBOR Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period.
"Interest Period" means, with respect to any LIBOR Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect, provided that (i) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day and (ii) any Interest Period
that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of
such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter shall
be the effective date of the most recent conversion or continuation of such
Borrowing.
"Issuing Bank" means Fleet National Bank in its capacity as the issuer
of Letters of Credit hereunder. Fleet National Bank may arrange for one or more
Letters of Credit to be issued by any of its Affiliates, in which case the term
"Issuing Bank" shall include any such Affiliate with respect to Letters of
Credit issued by such Affiliate.
"LC Availability Period" means the period from and including the
Effective Date to but excluding the earlier of (a) the date that is five
Business Days prior to the Revolving Maturity Date and (b) the date of
termination of the Revolving Commitments.
"LC Disbursement" means a payment made by any Issuing Bank pursuant to
a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC
(11)
Exposure of any Revolving Lender at any time shall be its Applicable Percentage
of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
"LIBO Rate" means, with respect to any LIBOR Borrowing for any Interest
Period, the rate appearing on Page 3750 of the Telerate Service (or on any
successor or substitute page of such Service, or any successor to or substitute
for such Service, providing rate quotations comparable to those currently
provided on such page of such Service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, as the rate for dollar deposits with a maturity comparable to
such Interest Period. In the event that such rate is not available at such time
for any reason, then the "LIBO Rate" with respect to such LIBOR Borrowing for
such Interest Period shall be the rate at which dollar deposits of $5,000,000
and for a maturity comparable to such Interest Period are offered by the
principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
"LIBOR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement, the Letters of Credit, the
Guarantee Agreement, the Indemnity, Subrogation and Contribution Agreement, the
Fee Letter, the Security Documents and any other instrument or agreement now or
hereafter executed and delivered in connection herewith or therewith or in
connection with (i) any transaction arising out of any cash management,
depository, or letter of credit provided by the Administrative Agent, the
Collateral Agent or any of their respective Affiliates, and (ii) at the
Borrowers' option, any investment, Hedging Agreement, equipment leasing or other
banking or financial services provided by the Administrative Agent, the
Collateral Agent or any of their respective Affiliates, each as amended and in
effect from time to time.
(12)
"Loan Parties" means the Borrower and the Subsidiary Loan Parties.
"Loans" means the loans made by the Lenders to the Borrower pursuant to
this Agreement.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" means (a) a material adverse effect on (i)
the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and the Subsidiaries taken as a whole or (ii) the
ability of the Loan Parties, considered as a whole, to perform any of their
obligations of a monetary nature under any Loan Document or (b) impairment of
the rights of the Administrative Agent or the Lenders to enforce any obligations
of a monetary nature under any Loan Document.
"Material Asset" means any fee or leasehold interest for any Related
Store and any other property of whatever kind and nature.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations of any one or more of the Borrower or any
Subsidiary in an aggregate principal amount exceeding $10,000,000, including
without limitation, in respect of the Initial Subordinated Indebtedness or one
or more Hedging Agreements. For purposes of determining Material Indebtedness at
any time, the "principal amount" of the obligations of the Borrower or any
Subsidiary in respect of any Hedging Agreement at such time shall be the maximum
aggregate amount (giving effect to any netting agreements) that the Borrower or
such Subsidiary Loan Party would be required to pay if such Hedging Agreement
were terminated at such time.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgage" means a mortgage, deed of trust, assignment of leases and
rents, leasehold mortgage or other substantially similar instrument granting a
Lien on any Mortgaged Property to secure the Obligations (or, with respect to
Mortgaged Properties located in New York, a portion of the Obligations). Each
Mortgage (and any amendments to the Mortgage to be executed on or after the
Closing Date) shall be substantially in the form of Exhibit H (or Exhibit H-1,
as applicable).
"Mortgaged Property" means, initially, each parcel of real property and
the improvements thereto owned or leased by a Loan Party and identified on
Schedule 1.01(a), and, from time to time, includes each other parcel of real
property and improvements thereto with respect to which a Mortgage is granted
pursuant to SECTION 5.12 or SECTION 5.13.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make contributions.
"Net Proceeds" means, with respect to any event, (a) the cash proceeds
received in respect of such event including (i) any cash received in respect of
any non-cash proceeds, but
(13)
only as and when received, (ii) casualty insurance proceeds, and (iii)
condemnation awards and similar payments, in each case net of (b) the sum of (i)
all reasonable commissions, discounts, fees and out-of-pocket expenses paid by
the Borrower and the Subsidiaries to third parties in connection with such
event, (ii) in the case of a sale, transfer or other disposition of an asset
(including pursuant to a sale and leaseback transaction or a casualty or other
insured damage or condemnation or similar proceeding), the amount of all
payments required to be made by the Borrower and the Subsidiaries as a result of
such event to repay Indebtedness (other than Loans and Letters of Credit), and
to pay any premium, penalty and interest with respect to such Indebtedness, to
the extent such Indebtedness is secured by such asset or otherwise subject to
mandatory prepayment as a result of such event, and (iii) the amount of all
taxes that are paid (or reasonably estimated to be payable) by the Borrower and
the Subsidiaries, and the amount of any reserves established by the Borrower and
the Subsidiaries to fund purchase price adjustments, contingent liabilities and
indemnities reasonably estimated to be payable, in each case during the two
years following the date of such event, and that are directly attributable to
such event (as determined reasonably and in good faith by the chief financial
officer of the Borrower), provided that any such reserves that, at the end of
such two-year period or on such earlier date as such reserves have been
determined by the Borrower to be no longer necessary, have not been applied to
such adjustments, contingent liabilities or indemnities shall constitute
additional "Net Proceeds" and shall give rise to a Prepayment Event as
contemplated under clause (e) of the definition of such term and (iv) the
reasonable costs and expenses of any repairs, alterations or improvements made
by the Borrower or any Subsidiary to the assets sold to the extent such repairs,
alterations or improvements were required pursuant to the terms of such event.
"Non-Recourse Indebtedness" means, as applied to any Person, all
Indebtedness of that Person secured by Liens on specified assets of that Person
under the terms of which (a) no recourse, other than to the Liens on such
specified assets, may be had against that or any other Person for the payment of
the principal of or interest or premium on such Indebtedness or for any claim
based thereon and (b) the enforcement of all obligations relating to such
Indebtedness is limited to foreclosure or other actions with respect to such
specified assets.
"Obligations" has the meaning assigned to such term in the Security
Agreement.
"Operating Lease" means, as applied to any Person, any lease (including
leases that may be terminated by the lessee at any time) of any property
(whether real, personal or mixed) that is not a Capital Lease other than any
such lease under which that Person is the lessor.
"Other Taxes" means any and all current or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made under any Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, any Loan Document.
"Payment Conditions" means at the time of determination, that (a) no
Default or Event of Default then exists or would arise as a result of the making
such payment, (b) the Borrower has maintained Average Excess Availability equal
to or greater than $50,000,000 for the thirty (30) days prior to making such
payment, (c) after giving effect to such payment, Excess Availability
(14)
will be equal to or greater than $50,000,000, and (d) Consolidated EBITDA,
calculated on a trailing twelve months basis, was at least $150,000,000.
"PBGC" means the Pension Benefit Guaranty Corporation defined in
Section 4002 of ERISA and any successor entity performing similar functions.
"Perfection Certificate" means a certificate in the form of Annex 1 to
the Security Agreement or any other form approved by the Administrative Agent.
"Permitted Acquisition" means an Investment in, a purchase of the
capital stock in, or the acquisition of all or a substantial portion of the
assets or properties of, any Person, the entering into any exchange of
securities with any Person, or the entering into any transaction, merger or
consolidation of any Person, or any acquisition of any retail store locations of
any Person (each of the foregoing an "Acquisition") in each case which satisfies
each of the following conditions:
(i) The Acquisition is of a business permitted to be conducted
by the Borrowers pursuant to SECTION 6.03(b) hereof;
(ii) Prior to and after giving effect to the Acquisition, no
Default or Event of Default will exist or will arise therefrom;
(iii) At least fifteen (15) days prior to the consummation of
an Acquisition, the Administrative Agent shall have received (A) copies
of purchase and sale agreements or other acquisition documents to be
executed in connection with the Permitted Acquisition, and (B) (i) to
the extent applicable and available, copies of the most recent audited,
and if later, unaudited financial statements of the Person which is the
subject of the Permitted Acquisition, and (ii) an unaudited pro forma
consolidated balance sheet and income statement of the Borrower and its
Subsidiaries as of the end of the most recently completed fiscal
quarter but prepared as though the Permitted Acquisition had occurred
on such date and related pro forma calculations of Average Excess
Availability for the subsequent four fiscal quarters period;
(iv) The Person making the Acquisition must be a Borrower or a
Subsidiary which will become a Borrower or a guarantor in accordance
with SECTION 5.12 hereof and the Borrower (including such Person) shall
take such steps as are necessary to grant to the Collateral Agent, for
the benefit of the Secured Parties, a legal, valid and enforceable
first priority security interest (except as provided in SECTION 6.02
hereof) in all of the assets and capital stock acquired in connection
with such acquisition;
(v) If the Borrower shall merge with such other Person, the
Borrower shall be the surviving party of such merger; and
(vi) Each of the Payment Conditions shall have been satisfied.
"Permitted Encumbrances" means:
(15)
(a) Liens imposed by law for taxes, assessments, governmental
charges or claims that are not yet due or are being contested in
compliance with SECTION 5.05;
(b) carriers', construction, warehousemen's, mechanics',
materialmen's, repairmen's and other like Liens imposed by law, arising
in the ordinary course of business and securing obligations that are
not overdue by more than 30 days or are being contested in compliance
with SECTION 5.05;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations or securing
liability to insurance carriers under insurance or self-insurance
arrangements;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
payment, performance and return-of-money bonds and other obligations of
a like nature, in each case in the ordinary course of business;
(e) liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII;
(f) easements, zoning restrictions, minor defects,
encroachments or irregularities in title, rights-of-way and similar
encumbrances on real property that do not secure any monetary
obligations and do not interfere in any material respect with the
ordinary conduct of business of the Borrower or any Subsidiary;
(g) leases, subleases and licenses granted to third parties
not interfering in any material respect with the ordinary conduct of
the business of the Borrower or any Subsidiary;
(h) any (i) interest or title of a lessor or sublessor under
any lease not otherwise prohibited by this Agreement, (ii) easement,
restriction or encumbrance to which the interest or title of such
lessor or sublessor may by subject or (iii) subordination of the
interest of the lessee or sublessee under such lease to any restriction
or encumbrance referred to in the preceding clause (ii);
(i) Liens arising from filing Uniform Commercial Code
financing statements relating solely to leases permitted by this
Agreement;
(j) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection
with the importation of goods;
(k) encumbrances referred to in Schedule B of the title
policies insuring the Mortgages; and
(l) customary setoff rights to the extent such rights
constitute a Lien on property.
(16)
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, any state of the
United States of America or any political subdivision of such state or
any public instrumentality thereof, in each case maturing within one
year from the date of acquisition thereof and having, at such date of
acquisition, the highest rating obtainable from S&P or from Moody's
(or, in the case of tax-exempt securities referred to as "Variable Rate
Demand Notes", maturing within 90 days from the date of acquisition
thereof and having, at such date of acquisition, a rating of at least A
from S&P or at least A2 from Moody's);
(c) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, a rating of at least A-2 from S&P or at least P-2 from
Moody's;
(d) investments in certificates of deposit, banker's
acceptances and time deposits maturing within one year from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof that has a combined capital and surplus
and undivided profits of not less than $250,000,000;
(e) Eurodollar time deposits maturing within one year from the
date of purchase thereof from any financial institution satisfying the
criteria described in clause (d) above;
(f) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (d) above; and
(g) mutual funds whose investment guidelines restrict such
funds' investments primarily to those satisfying the provisions of all
or any of clauses (a) through (e) above.
"Permitted Pending Lien Period" means, with respect to any Real
Property Asset or Equipment, the following periods:
(i) in the case of any fee or leasehold interest in
undeveloped land held by the Borrower or any Subsidiary for the
development of a Related Store, the period commencing on the date of
acquisition of such interest until the date 270 days thereafter (at
which point the Permitted Pending Lien Period for such interest shall
lapse unless clause (ii) or (iii) below shall be applicable),
(17)
(ii) in the case of any fee or leasehold interest in any Real
Property Asset consisting of a Related Store that is under
construction, the period commencing on the date of construction until
the date one year thereafter (at which point the Permitted Pending Lien
Period for such interest shall lapse unless clause (iii) below shall be
applicable),
(iii) in the case of any fee or leasehold interest in any Real
Property Asset consisting of a Related Store the construction of which
is complete, the period commencing on the date of such completion until
the date 270 days thereafter (at which point the Permitted Pending Lien
Period for such interest shall lapse), and
(iv) in the case of any Equipment, the period commencing on
the date of delivery of such Equipment until the date 270 days
thereafter (at which point the Permitted Pending Lien Period for such
Equipment shall lapse),
provided that if an Unavoidable Delay (as defined below) occurs during any time
period specified with respect to any Related Store in clause (i) or (ii) above,
such time period for such Related Store shall be extended for a period equal to
the duration of such Unavoidable Delay plus 5 Business Days, provided that, in
no case shall such extension exceed 90 days.
For purposes of the foregoing, the term "Unavoidable Delay" means the
prevention of, or delay in, the performance of any construction described in
clause (i) or (ii) above as a result of the occurrence of any unforeseeable
condition or event beyond the reasonable control of the Borrower or any
Subsidiary, including any strike, lockout, labor dispute, inability to obtain
labor or materials or reasonable substitutes therefor, act of God, governmental
restriction or regulation or control, enemy or hostile governmental action,
civil commotion, insurrection, sabotage or fire or other casualty.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plainbridge" means Plainbridge, LLC, a Delaware limited liability
company.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" means the Pledge Agreement, substantially in the
form of Exhibit F, among the Borrower, the Subsidiaries party thereto and the
Administrative Agent for the benefit of the Secured Parties.
"Preferred Stock" means, with respect to any corporation, capital stock
issued by such corporation that is entitled to a preference or priority, in
respect of dividends or distributions upon liquidation, over some other class of
capital stock issued by such corporation.
(18)
"Prepayment Event" means:
(a) any sale, transfer or other disposition of any property or
asset of the Borrower or any Subsidiary, other than sales, transfers
and other dispositions described in clauses (a), (b) and (e) of SECTION
6.05; or
(b) any casualty or other insured damage to, or any taking
under power of eminent domain or by condemnation or similar proceeding
of, any property or asset of the Borrower or any Subsidiary; or
(c) the issuance by the Borrower or any Subsidiary of any
equity securities (including, without limitation, Preferred Stock),
other than any such issuance of equity securities to the Borrower or a
Subsidiary; or
(d) the incurrence by the Borrower or any Subsidiary of any
Indebtedness, other than Indebtedness permitted by SECTION 6.01(a),
provided, however that the incurrence of Indebtedness permitted by
SECTION 6.01(a)(xiii) shall constitute a Prepayment Event for the
purposes hereof; or
(e) the existence of any reserves not applied to adjustments,
contingent liabilities or indemnities referred to in clause (iii) of
the definition of "Net Proceeds" upon the lapse of a period of two
years from the date of an event giving rise to Net Proceeds, or on such
earlier date as such reserves have been determined by the Borrower to
be no longer necessary (it being understood that the date upon which
the "Prepayment Event" contemplated by this clause (e) shall occur
shall be the date upon which such two-year period expires or on such
earlier date as such determination is made by the Borrower).
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by Bank of America, N.A. as its prime rate in effect at its
principal office in Charlotte, North Carolina; each change in the Prime Rate
shall be effective from and including the date such change is publicly announced
as being effective.
"Qualified Refinancing Terms" means, with respect to any Indebtedness
being refinanced at any time, that (A) the principal amount of the refinancing
Indebtedness does not exceed the principal amount of the Indebtedness so
refinanced plus any fees, expenses, premiums and penalties and (B) the interest
rates, maturities, amortization schedules, covenants, defaults, remedies and
other material terms of such refinancing Indebtedness are in each case (x) the
same as the corresponding provisions of the Indebtedness so refinanced, (y) more
favorable to the Lenders than the corresponding provisions of the Indebtedness
being refinanced or (z) otherwise satisfactory to the Administrative Agent and
the Required Lenders, provided that interest rates that are less than,
maturities that are longer than and amortization schedules that result in a
longer average life to maturity than the corresponding provisions of the
Indebtedness being refinanced shall be deemed satisfactory to the Administrative
Agent and the Required Lenders.
(19)
"Qualified Sale/Leaseback Transaction" means the sale, pursuant to a
Sale/Leaseback Transaction, of (a) any fee interest in any Real Property Asset
consisting of a Related Store the construction of which is complete, provided
that such sale occurs no more than 270 days after the later of the date of
completion of such construction and the date on which the Borrower or any
Subsidiary acquired such fee interest, or (b) any Equipment within 270 days
after the acquisition of such Equipment by the Borrower or any Subsidiary;
provided, however, that (i) no agreement in connection with such Qualified
Sale/Leaseback Transaction restricts the ability of the Borrower or any of the
Subsidiaries to create, incur, assume or suffer to exist any Indebtedness or any
Lien upon any of its properties, assets or revenues, whether now owned or
hereafter acquired, other than the real estate or Equipment that is the subject
of such Qualified Sale/Leaseback Transaction and (ii) such Qualified
Sale/Leaseback Transaction is consummated for consideration that is at least
equal to the aggregate fair market value of the real estate (and the related
improvements) or Equipment subject thereto (determined at the time of
consummation thereof in good faith by the chief financial officer of the
Borrower and, in the case of any Qualified Sale/Leaseback Transaction or series
of related Qualified Sale/Leaseback Transactions involving net proceeds in
excess of $10,000,000, the board of directors of the Borrower).
"Real Property Assets" means interests in land, buildings, improvements
and fixtures attached thereto or used in the operation thereof, in each case
owned or leased (as lessee) by the Borrower or any Subsidiary.
"Register" has the meaning assigned to such term in SECTION 9.04.
"Regulation U" means Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" means Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Related Fund" means, with respect to any Lender that is a fund that
invests in bank loans and similar extensions of credit, any other fund that
invests in bank loans and similar extensions of credit and is managed by the
same investment advisor as such Lender or by an Affiliate of such investment
advisor.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, trustees,
agents and advisors of such Person and such Person's Affiliates.
"Related Store" means any store or facility (including any grocery
store or supermarket) that is or is intended to be used by the Borrower or any
Subsidiary in connection with the business permitted under SECTION 6.03(b).
"Release" has the meaning assigned to such term in Section 101(22) of
CERCLA.
"Replacement Store Sale" means the sale or closure by the Borrower or
any Subsidiary of any store (an "old store"), provided that (1) another store (a
"new store") is bought or opened by the Borrower or a Subsidiary in the
proximate geographical area of such old store within three
(20)
months of the date on which such old store is so sold or closed and (2) such new
store's sales will be treated as "same store sales" of such old store as
reported by the Borrower.
"Required Lenders" means, at any time, Lenders having Revolving
Exposures, Term Loans and unused Commitments representing more than 50% of the
sum of the total Revolving Exposures, outstanding Term Loans and unused
Commitments at such time.
"Reserve Implementation Event" means any time that the Average
Liquidation Value of the Mortgaged Properties is less than $275,000,000 in the
aggregate (in which event a reserve in an amount determined by the
Administrative Agent in its discretion up to, and not to exceed, the amount of
such deficiency may be implemented).
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any shares of any class
of capital stock (including, without limitation, Preferred Stock) of the
Borrower or any Subsidiary, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any such shares of capital stock of the Borrower or any Subsidiary or any
option, warrant or other right to acquire any such shares of capital stock of
the Borrower or any Subsidiary.
"Revolving Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Revolving Maturity Date and
the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as
an amount representing the maximum aggregate amount of such Lender's Revolving
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to SECTION 2.10, or (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to SECTION 9.04. The initial amount
of each Lender's Revolving Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Revolving Commitment, as applicable. The initial aggregate amount of the
Lenders' Revolving Commitments is $180,000,000.
"Revolving", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loan constituting such Borrowing, are made pursuant to
SECTION 2.01(b).
"Revolving Exposure" means, with respect to any Lender at any time, the
sum of the outstanding principal amount of such Lender's Revolving Loans and its
LC Exposure and Swingline Exposure at such time.
"Revolving Lender" means a Lender with a Revolving Commitment or, if
the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"Revolving Loan" means a Loan made pursuant to clause (b) of SECTION
2.01.
(21)
"Revolving Maturity Date" means October 1, 2009.
"Sale/Leaseback Transaction" has the meaning assigned to such term in
SECTION 6.06.
"S&P" means Standard & Poor's.
"Secured Parties" shall have the meaning assigned to such term in the
Security Agreement.
"Security Agreement" means the Security Agreement, substantially in the
form of Exhibit G, among the Borrower, the Subsidiary Loan Parties and the
Administrative Agent for the benefit of the Secured Parties.
"Security Documents" means the Security Agreement, the Pledge
Agreement, the Mortgages and each other security agreement or other instrument
or document executed and delivered pursuant to SECTION 5.12 or SECTION 5.13 to
secure any of the Obligations.
"Settlement Date" as defined in SECTION 2.08(a).
"Special Purpose Subsidiary" means each wholly owned Subsidiary of the
Borrower that is organized for the purpose of, and is engaged solely in the
business of, (a) owning a fee or leasehold interest in a single Real Property
Asset and (b) owning or leasing Equipment located at such Real Property Asset,
in each case used in the operation of a Related Store, provided that, in the
case of any such Subsidiary formed after the date hereof, such interest in such
Real Property Asset and such Equipment is acquired by such wholly owned
Subsidiary (i) directly from a person other than the Borrower or any Subsidiary
or (ii) from the Borrower or any Subsidiary (A) in the case of the interest in
such Real Property Asset, no more than 270 days after the later of the date of
completion of the construction of such Related Store and the date on which the
Borrower or any Subsidiary acquired such interest and (B) in the case of
Equipment, within 270 days after the acquisition of such Equipment by the
Borrower or any Subsidiary.
"Standby Letter of Credit" means any standby letter of credit or
similar instrument issued for the purpose of supporting (a) Indebtedness of the
Borrower or any Subsidiary in respect of industrial revenue or development bonds
or financings, (b) workers' compensation liabilities of the Borrower or any
Subsidiary, (c) the obligations of third party insurers of the Borrower or any
Subsidiary arising by virtue of the laws of any jurisdiction requiring third
party insurers, (d) Capital Lease Obligations or obligations with respect to
Operating Leases of the Borrower or any Subsidiary, (e) performance, payment,
deposit or surety obligations of the Borrower or any Subsidiary, in any case if
required by law or governmental rule or regulation or in accordance with custom
and practice in the industry and (f) other obligations of the Borrower and the
Subsidiaries to the extent consistent with past practices of the Borrower and
the Subsidiaries or otherwise consistent with custom and practice in the
industry.
"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is
(22)
subject with respect to the Adjusted LIBO Rate for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. LIBOR Loans shall be deemed to constitute eurocurrency funding and
to be subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to any
Lender under such Regulation D or any comparable regulation. The Statutory
Reserve Rate shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.
"Subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity (a) of which securities or other ownership interests representing
more than 50% of the ordinary voting power in the election of Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof or, in the case of a partnership, more than 50% of the general
partnership interests are, as of such date, owned, controlled or held, or (b)
that is, as of such date, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.
"Subsidiary Loan Party" means any Subsidiary that is not a Foreign
Subsidiary or a Special Purpose Subsidiary (but only so long as such Special
Purpose Subsidiary remains liable with respect to Indebtedness that prohibits
such Special Purpose Subsidiary from entering into the Guarantee Agreement and
the Security Documents).
"Supermajority Lenders" means, at any time, Lenders having Revolving
Exposures, Term Loans and unused Commitments representing at least 66 2/3% of
the sum of the total Revolving Exposures, outstanding Term Loans and unused
Commitments at such time.
"Swingline Exposure" means, at any time, the aggregate principal amount
of all Swingline Loans outstanding at such time. The Swingline Exposure of any
Lender at any time shall be its Applicable Percentage of the total Swingline
Exposure at such time.
"Swingline Lender" means Fleet Retail Group, Inc., in its capacity as
lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to SECTION 2.05.
"Taxes" means any and all current or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans constituting such Borrowing, are made pursuant
to SECTION 2.01(a).
"Term Loan Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make a Term Loan hereunder on the
Effective Date, expressed as an amount representing the maximum principal amount
of the Term Loan to be made by such Lender hereunder, as such commitment may be
(a) reduced from time to time pursuant to SECTION 2.10, or (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
(23)
pursuant to SECTION 9.04. The initial amount of each Lender's Term Loan
Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Term Loan Commitment, as
applicable. The initial aggregate amount of the Lenders' Term Loan Commitments
is $70,000,000.
"Term Lender" means a Lender with a Term Loan Commitment or an
outstanding Term Loan.
"Term Loan" means a Loan made pursuant to clause (a) of SECTION 2.01.
"Term Loan Maturity Date" means October 1, 2009.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02 Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "LIBOR Loan") or by Class and Type (e.g.,
a "LIBOR Revolving Loan"). Borrowings also may be classified and referred to by
Class (e.g., a "Revolving Borrowing") or by Type (e.g., a "LIBOR Borrowing") or
by Class and Type (e.g., a "LIBOR Revolving Borrowing").
SECTION 1.03 Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
(24)
SECTION 1.04 Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided,
however, that for purposes of determining compliance with any covenant set forth
in Article VI, such terms shall be construed in accordance with GAAP as in
effect on the date of this Agreement applied on a basis consistent with the
application used in preparing the Borrower's financial statements referred to in
SECTION 3.04.
ARTICLE II
The Credits
-----------
SECTION 2.01 Commitments. Subject to the terms and conditions set forth
herein, each Lender agrees (a) to make a Term Loan to the Borrower on the
Effective Date in a principal amount not exceeding its Term Loan Commitment, and
(b) subject to the provisions of SECTION 2.03 hereof, to make Revolving Loans to
the Borrower from time to time after the Effective Date and during the Revolving
Availability Period in an aggregate principal amount that will not result in
such Lender's Revolving Exposure exceeding such Lender's Revolving Commitment.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Revolving Loans. Amounts
repaid in respect of Term Loans may not be reborrowed.
SECTION 2.02 Reserves. The Administrative Agent may, upon notice to the
Borrower, hereafter establish a reserve and reduce the amount of Loans available
to be borrowed in the event of the occurrence of any, and as set forth in the
definition of, Reserve Implementation Event.
SECTION 2.03 Loans and Borrowings.
(a) Obligations Several. Each Loan (other than a Swingline
Loan) shall be made as part of a Borrowing consisting of Loans of the same Class
and Type made by the Lenders ratably in accordance with their respective
Commitments of the applicable Class. The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder, provided that the Commitments of the Lenders are several and no
Lender shall be responsible for any other Lender's failure to make Loans as
required.
(b) Type of Loans. Subject to SECTION 2.15, each Revolving
Borrowing and Term Borrowing shall be comprised entirely of ABR Loans or LIBOR
Loans as the Borrower may request in accordance herewith. Notwithstanding
anything to the contrary contained herein, all Borrowings made on the Effective
Date and during the first two Business Days thereafter shall be ABR Borrowings.
Each Swingline Loan shall be an ABR Loan. Each Lender at its option may make any
LIBOR Loan by causing any domestic or foreign branch or Affiliate of such Lender
to make such Loan, so long as the exercise of such option would not cause the
Borrower to incur increased costs. Any exercise of such option shall not affect
the obligation of the Borrower to repay such Loan in accordance with the terms
of this Agreement.
(25)
(c) Minimum Amounts; Limitation on Number of Borrowings. At
the commencement of each Interest Period for any LIBOR Borrowing, such Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000 and
not less than $5,000,000. At the time that each ABR Revolving Borrowing is made,
such Borrowing shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $5,000,000, provided that an ABR Revolving
Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the total Revolving Commitments or that is required to finance the
reimbursement of an LC Disbursement as contemplated by SECTION 2.06(c). Each
Swingline Loan shall be in an amount that is an integral multiple of $100,000
and not less than $500,000. Borrowings of more than one Type and Class may be
outstanding at the same time, provided that there shall not at any time be more
than a total of six (6) LIBOR Borrowings outstanding.
(d) Limitations on Interest Periods. Notwithstanding any other
provision of this Agreement, the Borrower shall not be entitled to request, or
to elect to convert or continue, any Borrowing if the Interest Period requested
with respect thereto would end after the Revolving Maturity Date or the Term
Loan Maturity Date, as applicable.
SECTION 2.04 Requests for Borrowings. To request a Revolving Borrowing
or Term Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a LIBOR Borrowing, not later than 12:00
noon, New York City time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 12:00 noon, New
York City time, on the date of the proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request
in a form approved by the Administrative Agent and signed by the Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with SECTION 2.03:
(i) whether the requested Borrowing is to be a Revolving
Borrowing or Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business
Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a
LIBOR Borrowing;
(v) in the case of a LIBOR Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated
by the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of SECTION 2.07.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested LIBOR
(26)
Revolving Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month's duration. Promptly following receipt of a
Borrowing Request in accordance with this Section, the Administrative Agent
shall advise each Lender of the details thereof and of the amount of such
Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.05 Swingline Loans.
(a) Availability. Subject to the terms and conditions set
forth herein, the Swingline Lender agrees to make Swingline Loans to the
Borrower from time to time during the Revolving Availability Period, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of outstanding Swingline Loans exceeding
$30,000,000 or (ii) the sum of the total Revolving Exposures exceeding the total
Revolving Commitments, provided that the Swingline Lender shall not be required
to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Swingline Loans.
(b) Notice and Funding of Swingline Loans. To request a
Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 1:00 p.m., New York
City time, on the day of a proposed Swingline Loan. Each such notice shall be
irrevocable and shall specify the requested date (which shall be a Business Day)
and amount of the requested Swingline Loan. The Administrative Agent will
promptly advise the Swingline Lender of any such notice received from the
Borrower. The Swingline Lender shall make each Swingline Loan available to the
Borrower by means of a credit to the general deposit account of the Borrower
with the Swingline Lender (or, in the case of a Swingline Loan made to finance
the reimbursement of an LC Disbursement as provided in SECTION 2.06(e), by
remittance to an Issuing Bank) by 3:00 p.m., New York City time, on the
requested date of such Swingline Loan.
(c) Participations. The Swingline Lender may by written notice
given to the Administrative Agent not later than 10:00 a.m., New York City time,
on any Business Day require the Revolving Lenders to acquire participations on
such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Revolving
Lenders will participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each Revolving Lender,
specifying in such notice such Lender's Applicable Percentage of such Swingline
Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the Administrative
Agent, for the account of the Swingline Lender, such Lender's Applicable
Percentage of such Swingline Loan or Loans. Each Revolving Lender acknowledges
and agrees that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever.
(27)
Each Revolving Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as
provided in SECTION 2.07 with respect to Loans made by such Lender (and SECTION
2.07 shall apply, mutatis mutandis, to the payment obligations of the Revolving
Lenders), and the Administrative Agent shall promptly pay to the Swingline
Lender the amounts so received by it from the Revolving Lenders. The
Administrative Agent shall notify the Borrower of any participations in any
Swingline Loan acquired pursuant to this paragraph, and thereafter payments in
respect of such Swingline Loan shall be made to the Administrative Agent and not
to the Swingline Lender. Any amounts received by the Swingline Lender from the
Borrower (or other party on behalf of the Borrower) in respect of a Swingline
Loan after receipt by the Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative Agent;
any such amounts received by the Administrative Agent shall be promptly remitted
by the Administrative Agent to the Revolving Lenders that shall have made their
payments pursuant to this paragraph and to the Swingline Lender, as their
interests may appear. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the Borrower of any default in the
payment thereof.
SECTION 2.06 Letters of Credit.
(a) General. Subject to the terms and conditions set forth
herein, the Borrower may request the issuance of Letters of Credit for its own
account, in a form reasonably acceptable to the Administrative Agent and the
applicable Issuing Bank, at any time and from time to time during the LC
Availability Period. In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any form of letter
of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, any Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Issuing Bank) to
the applicable Issuing Bank and the Administrative Agent (reasonably in advance
of the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with paragraph (c)
of this Section), the amount of such Letter of Credit, the name and address of
the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by the
applicable Issuing Bank, the Borrower also shall submit a letter of credit
application on such Issuing Bank's standard form in connection with any request
for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or extension (i) the LC
Exposure shall not exceed $125,000,000 and (ii) the total Revolving Exposures
shall not exceed the total Revolving Commitments.
(28)
(c) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year after the
date of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Revolving Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of the applicable Issuing Bank or the Lenders,
such Issuing Bank hereby grants to each Revolving Lender, and each Revolving
Lender hereby acquires from such Issuing Bank, a participation in such Letter of
Credit equal to such Lender's Applicable Percentage of the aggregate amount
available to be drawn under such Letter of Credit. In consideration and in
furtherance of the foregoing, each Revolving Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
the applicable Issuing Bank, such Lender's Applicable Percentage of each LC
Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the
date due as provided in paragraph (e) of this Section, or of any reimbursement
payment required to be refunded to the Borrower for any reason. Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and
continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever.
(e) Reimbursement. If an Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit issued by such Issuing Bank, then
the Borrower shall automatically, and without any action on the part of any
Person, be deemed to have requested in accordance with SECTION 2.04 that the
reimbursement by the Borrower of such LC Disbursement be financed by the
proceeds of an ABR Revolving Borrowing to be made on the Required LC
Disbursement Repayment Date in an equivalent amount (and, to the extent such ABR
Revolving Borrowing is made, the Borrower's obligation to make such payment
shall be discharged and replaced by such ABR Revolving Borrowing). As used in
this SECTION 2.06(e), "Required LC Disbursement Repayment Date" means, with
respect to any LC Disbursement, the date that such LC Disbursement is made, if
the Borrower shall have received notice of such LC Disbursement prior to 10:00
a.m., New York City time, on such date, or, if such notice has not been received
by the Borrower prior to such time on such date, then not later than 12:00 noon,
New York City time, on (i) the Business Day that the Borrower receives such
notice, if such notice is received prior to 10:00 a.m., New York City time, on
the day of receipt, or (ii) the Business Day immediately following the day that
the Borrower receives such notice, if such notice is not received prior to such
time on the day of receipt.
If any ABR Revolving Borrowing referred to in the paragraph above
cannot be made when required (whether due to the failure to satisfy any
applicable conditions precedent or otherwise), the Borrower shall reimburse such
LC Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on the Required LC
Disbursement Repayment Date with respect thereto. If the Borrower fails to make
any such payment when due, the Administrative Agent shall notify each Revolving
Lender
(29)
of the applicable LC Disbursement, the payment then due from the Borrower in
respect thereof and such Lender's Applicable Percentage thereof.
Promptly following receipt of such notice, each Revolving Lender shall
pay to the Administrative Agent its Applicable Percentage of the payment then
due from the Borrower, in the same manner as provided in SECTION 2.07 with
respect to Loans made by such Lender (and SECTION 2.07 shall apply, mutatis
mutandis, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the applicable Issuing Bank the
amounts so received by it from the Revolving Lenders. Promptly following receipt
by the Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the
applicable Issuing Bank or, to the extent that Revolving Lenders have made
payments pursuant to this paragraph to reimburse such Issuing Bank, then to such
Lenders and such Issuing Bank as their interests may appear. Any payment made by
a Revolving Lender pursuant to this paragraph to reimburse the applicable
Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving
Loans as contemplated above) shall not constitute a Loan and shall not relieve
the Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section shall be
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision herein or therein, (ii) any
draft or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the applicable Issuing Bank under a
Letter of Credit against presentation of a draft or other document that does not
strictly comply with the terms of such Letter of Credit or (iv) any other event
or circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, the Borrower's obligations
hereunder.
Neither the Administrative Agent, the Lenders nor the applicable
Issuing Bank, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from
causes beyond the control of such Issuing Bank, provided that the foregoing
shall not be construed to excuse such Issuing Bank from liability to the
Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by
such Issuing Bank's failure to exercise care when determining whether drafts and
other documents presented under a Letter of Credit strictly comply with the
terms thereof. The parties hereto expressly agree that, in the absence of gross
negligence or wilful misconduct on the part of the applicable Issuing Bank (as
finally determined by a court of competent jurisdiction),
(30)
such Issuing Bank shall be deemed to have exercised care in each such
determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented
that appear on their face to be in substantial compliance with the terms of a
Letter of Credit, the applicable Issuing Bank may, in its sole discretion,
either accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the contrary,
or refuse to accept and make payment upon such documents if such documents are
not in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The applicable Issuing Bank
shall, promptly following its receipt thereof, examine all documents purporting
to represent a demand for payment under a Letter of Credit issued by it. The
applicable Issuing Bank shall promptly notify the Administrative Agent and the
Borrower by telephone (confirmed by telecopy) of such demand for payment and
whether such Issuing Bank has made or will make an LC Disbursement thereunder,
provided that any failure to give or delay in giving such notice shall not
relieve the Borrower of its obligation to reimburse such Issuing Bank and the
Revolving Lenders with respect to any such LC Disbursement.
(h) Interim Interest. If the applicable Issuing Bank shall
make any LC Disbursement, then, unless the Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the unpaid amount
thereof shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the Borrower reimburses such
LC Disbursement, at the rate per annum then applicable to ABR Revolving Loans,
provided that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then SECTION 2.14(c) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
applicable Issuing Bank, except that interest accrued on and after the date of
payment by any Revolving Lender pursuant to paragraph (e) of this Section to
reimburse such Issuing Bank shall be for the account of such Lender to the
extent of such payment.
(i) Replacement of an Issuing Bank. Any Issuing Bank may be
replaced at any time by written agreement among the Borrower, the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank, if any. The
Administrative Agent shall notify the Lenders of any such replacement of the
replaced Issuing Bank. At the time any such replacement shall become effective,
the Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to SECTION 2.13(b). From and after the effective date of
any such replacement, (i) any successor Issuing Bank shall have all the rights
and obligations of an Issuing Bank under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(31)
(j) Cash Collateralization. If any Event of Default shall
occur and be continuing, on the Business Day that the Borrower receives notice
from the Administrative Agent or the Required Lenders (or, if the maturity of
the Loans has been accelerated, Revolving Lenders with LC Exposure representing
greater than 50% of the total LC Exposure) demanding the deposit of cash
collateral pursuant to this paragraph, the Borrower shall deposit in an account
with the Administrative Agent, in the name of the Administrative Agent and for
the benefit of the Lenders (the "Cash Collateral Account"), an amount in cash
equal to 105% of the LC Exposure as of such date plus any accrued and unpaid
interest thereon, provided that the obligation to deposit such cash collateral
shall become effective immediately, and such deposit shall become immediately
due and payable, without demand or other notice of any kind, upon the occurrence
of any Event of Default with respect to the Borrower described in clause (h) or
(i) of Article VII. Each such deposit shall be held by the Administrative Agent
as collateral for the payment and performance of the obligations of the Borrower
under this Agreement.
The Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any
interest earned on the investment of such deposits, which investments shall be
made at the option and sole discretion of the Administrative Agent and at the
Borrower's risk and expense, such deposits shall not bear interest. Interest or
profits, if any, on such investments shall accumulate in such account. Moneys in
such account shall be applied by the Administrative Agent to reimburse each
Issuing Bank for LC Disbursements for which it has not been reimbursed and, to
the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or,
if the maturity of the Loans has been accelerated (but subject to the consent of
Revolving Lenders with LC Exposure representing greater than 50% of the total LC
Exposure), be applied to satisfy other obligations of the Borrower under this
Agreement. If the Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned to the Borrower within
three Business Days after all Events of Default have been cured or waived.
SECTION 2.07 Funding of Borrowings.
(a) Funding by Lenders. Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 2:00 p.m., New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders, provided that Swingline Loans shall be made as provided
in SECTION 2.05. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an
account of the Borrower maintained with the Administrative Agent and designated
by the Borrower in the applicable Borrowing Request, provided that ABR Revolving
Loans made to finance the reimbursement of an LC Disbursement as provided in
SECTION 2.06(e) shall be remitted by the Administrative Agent to the applicable
Issuing Bank.
(b) Non-Receipt From Lenders of Funds. Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such
(32)
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.08 Settlement Amongst Lenders.
(a) The amount of each Lender's Applicable Percentage of
outstanding Loans shall be computed weekly (or more frequently in the
Administrative Agent's discretion) and shall be adjusted upward or downward
based on all Revolving Loans and repayments of Loans received by the
Administrative Agent as of 3:00 p.m., Boston time, on the first Business Day
following the end of the period specified by the Administrative Agent (such
date, the "Settlement Date").
(b) The Administrative Agent shall deliver to each of the
Lenders promptly after the Settlement Date a summary statement of the amount of
outstanding Loans for the period and the amount of repayments received for the
period. As reflected on the summary statement: each Lender shall transfer to the
Administrative Agent (as provided below), or the Administrative Agent shall
transfer to each Lender, such amounts as are necessary to insure that, after
giving effect to all such transfers, the amount of Loans made by each Lender
shall be equal to such Lender's Applicable Percentage of Loans outstanding as of
such Settlement Date. If the summary statement requires transfers to be made to
the Administrative Agent by the Lenders and is received prior to 12:00 Noon,
Boston time, on a Business Day, such transfers shall be made in immediately
available funds no later than 3:00 p.m., Boston time, that day; and, if received
after 12:00 Noon, Boston time, then no later than 3:00 p.m., Boston time, on the
next Business Day. The obligation of each Lender to transfer such funds is
irrevocable, unconditional and without recourse to or warranty by the
Administrative Agent. If and to the extent any Lender shall not have so made its
transfer to the Administrative Agent, such Lender agrees to pay to the
Administrative Agent, forthwith on demand such amount, together with interest
thereon, for each day from such date until the date such amount is paid to the
Administrative Agent at the greater of the Federal Funds Effective Rate and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.
SECTION 2.09 Interest Elections.
(a) Interest Election. Each Revolving Borrowing and Term
Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a LIBOR Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request.
(33)
Thereafter, the Borrower may elect to convert such Borrowing to a different Type
or to continue such Borrowing and, in the case of a LIBOR Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Swingline Borrowings, which may not be converted or continued.
(b) Notification by Borrower. To make an election pursuant to
this Section, the Borrower shall notify the Administrative Agent of such
election by telephone by the time that a Borrowing Request would be required
under SECTION 2.04 if the Borrower were requesting a Revolving Borrowing of the
Type resulting from such election to be made on the effective date of such
election. Each such telephonic Interest Election Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a form approved
by the Administrative Agent and signed by the Borrower.
(c) Content of Notices. Each telephonic and written Interest
Election Request shall specify the following information in compliance with
SECTION 2.03 and paragraph (f) of this Section:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a LIBOR Borrowing; and
(iv) if the resulting Borrowing is a LIBOR Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a LIBOR Borrowing but does not
specify an Interest Period, then the Borrower shall be deemed to have selected
an Interest Period of one month's duration.
(d) Notification of Lenders. Promptly following receipt of an
Interest Election Request, the Administrative Agent shall advise each Lender of
the details thereof and of such Lender's portion of each resulting Borrowing.
(e) Failure to Elect; Events of Default. If the Borrower fails
to deliver a timely Interest Election Request with respect to a LIBOR Borrowing
prior to the end of the
(34)
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long
as an Event of Default is continuing (i) no outstanding Borrowing may be
converted to or continued as a LIBOR Borrowing and (ii) unless repaid, each
LIBOR Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
SECTION 2.10 Termination and Reduction of Commitments.
(a) Scheduled Termination and Reduction. Unless previously
terminated, (i) the Term Loan Commitments shall terminate at 5:00 p.m., New York
City time, on the Effective Date and (ii) the Revolving Commitments shall
terminate on the Revolving Maturity Date.
(b) Voluntary Reduction of Commitments. The Borrower may at
any time terminate, or from time to time reduce, the Commitments of any Class,
provided that (i) each reduction of the Commitments of any Class shall be in an
amount that is an integral multiple of $1,000,000 and not less than $5,000,000
and (ii) the Borrower shall not terminate or reduce the Revolving Commitments
if, after giving effect to any concurrent prepayment of the Revolving Loans in
accordance with SECTION 2.12(a), the sum of the Revolving Exposures would exceed
the total Revolving Commitments.
(c) Notice of Voluntary Reduction; No Reinstatement of
Commitments. The Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (b) of this Section at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant
to this Section shall be irrevocable, provided that a notice of termination of
the Revolving Commitments delivered by the Borrower may state that such notice
is conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments of any Class shall be
permanent. Each reduction of the Commitments of any Class shall be made ratably
among the Lenders in accordance with their respective Commitments of such Class.
SECTION 2.11 Repayment of Loans; Evidence of Debt.
(a) Repayment of Loans. The Borrower hereby unconditionally
promises to pay (i) to the Administrative Agent for the account of each Lender
the then unpaid principal amount of each Revolving Loan of such Lender on the
Revolving Maturity Date, (ii) to the Administrative Agent for the account of
each Lender the then unpaid principal amount of each Term Loan of such Lender on
the Term Loan Maturity Date, and (iii) to the Swingline Lender the then unpaid
principal amount of each Swingline Loan on the Revolving Maturity Date.
(35)
(b) Maintenance of Records by Lenders. Each Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.
(c) Maintenance of Records by Administrative Agent. The
Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, the Class and Type thereof and the Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder
and (iii) the amount of any sum received by the Administrative Agent hereunder
for the account of the Lenders and each Lender's share thereof.
(d) Effect of Entries. The entries made in the accounts
maintained pursuant to paragraph (b) or (c) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded therein,
provided that the failure of any Lender or the Administrative Agent to maintain
such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this
Agreement.
(e) Promissory Notes. Any Lender may request that Loans of any
Class made by it be evidenced by a promissory note. In such event, the Borrower
shall prepare, execute and deliver to such Lender a promissory note payable to
the order of such Lender (or, if requested by such Lender, to such Lender and
its registered assigns) and in a form approved by the Administrative Agent and
the Borrower. Thereafter, the Loans evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to
SECTION 9.04) be represented by one or more promissory notes in such form
payable to the order of the payee named therein (or, if such promissory note is
a registered note, to such payee and its registered assigns).
SECTION 2.12 Prepayment of Loans.
(a) Optional Prepayments. The Borrower shall have the right at
any time and from time to time to prepay any Revolving Loans in whole or in
part, subject to the requirements of this Section. The Borrower may not
voluntarily prepay the Term Loans without the consent of the Administrative
Agent and the Required Lenders unless prior thereto or contemporaneously
therewith the Revolving Commitments are terminated and all other Obligations are
or have been paid in full.
(b) Mandatory Prepayments - Cash Collections. The Loans shall
be repaid daily from the proceeds received in the FRG Concentration Account and
each Blocked Account (as each of those terms is defined on Schedule 5.13
hereto), which proceeds shall be applied by the Administrative Agent as provided
herein or in Section 6.02 of the Security Agreement, as applicable.
(c) Mandatory Prepayments - Prepayment Events. If any Net
Proceeds are received by or on behalf of the Borrower or any Subsidiary in
respect of any Prepayment Event, then the Borrower shall, no later than the
second Business Day after such Net Proceeds are
(36)
received (or, in the case of any Prepayment Event described in clause (e), no
later than the second Business Day after such Prepayment Event arises), pay to
the Administrative Agent the amount of such Net Proceeds received, which Net
Proceeds shall be applied by the Administrative Agent as provided herein or in
Section 6.02 of the Security Agreement, as applicable.
(d) Mandatory Prepayments - Revolving Credit Loans Exceeding
Commitments. If (a) the sum of (i) the aggregate principal amount of all
Revolving Loans (including Swingline Loans) outstanding under the Revolving
Commitments at any time and (ii) the LC Exposure at such time exceeds (b) the
aggregate Revolving Commitments less any reserves imposed under SECTION 2.02
hereof at such time, then the Borrower will immediately pay to the
Administrative Agent an amount equal to such excess, provided that, if the
amounts to be so paid to the Administrative Agent on any date exceed the
aggregate principal amount of the Revolving Loans (including Swingline Loans)
then outstanding, then the Borrower will immediately cash collateralize
outstanding Letters of Credit in the manner provided in SECTION 2.06(j) in an
amount equal to such excess.
(e) Mandatory Prepayments - Loans Exceeding Commitments. If
(a) the sum of (i) the aggregate principal amount of all Revolving Loans
(including Swingline Loans) outstanding under the Revolving Commitments at any
time and (ii) the LC Exposure at such time and (iii) the aggregate principal
amount of the Term Loans outstanding at such time exceeds (b) the sum of (i) the
aggregate Revolving Commitments, plus (ii) the aggregate principal amount of the
Term Loans outstanding at such time less (iii) any reserves imposed under
SECTION 2.02 hereof at such time, then the Borrower will immediately pay to the
Administrative Agent an amount equal to such excess for application first to the
outstanding Revolving Loans (including Swingline Loans), provided that, if the
amounts to be so paid to the Administrative Agent on any date exceed the
aggregate principal amount of such Revolving Loans then outstanding, then the
Borrower will immediately cash collateralize outstanding Letters of Credit in
the manner provided in SECTION 2.06(j) in an amount equal to such excess, and
further provided that, if the amounts to be so paid to the Administrative Agent
on any date exceed the aggregate principal amount of such Revolving Loans and
the outstanding Letters of Credit, the Borrower will immediately prepay the Term
Loans in an amount equal to such excess.
(f) Notice to Administrative Agent. The Borrower shall notify
the Administrative Agent (and in the case of prepayment of a Swingline Loan, the
Swingline Lender) by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a LIBOR Borrowing, not later than
12:00 Noon, New York City time, three Business Days before the date of
prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than
12:00 Noon, New York City time, on the date of prepayment or (iii) in the case
of prepayment of a Swingline Loan, not later than 1:00 p.m., New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date, the principal amount of each Borrowing or portion
thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably
detailed calculation of the amount of such prepayment, provided that, if a
notice of optional prepayment is given in connection with a conditional notice
of termination of the Revolving Commitments as contemplated by SECTION 2.10,
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with SECTION 2.10. Promptly following receipt of any such
notice (other than a notice relating
(37)
solely to Swingline Loans), the Administrative Agent shall advise the Lenders of
the contents thereof. Each partial prepayment of any Borrowing shall be in an
amount that would be permitted in the case of an advance of a Borrowing of the
same Type as provided in SECTION 2.03, except as necessary to apply fully the
required amount of a mandatory prepayment. Each prepayment of a Borrowing shall
be applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by SECTION 2.14.
(g) Application of Payments. If the Obligations have not been
accelerated, payments received by the Administrative Agent shall be applied in
the following order: first, to pay interest due and payable on Credit Extensions
and to pay fees and expense reimbursements and indemnification then due and
payable to the Administrative Agent, the Issuing Bank, the Collateral Agent, and
the Lenders; second to repay outstanding Swingline Loans; third, to repay other
outstanding Revolving Loans that are ABR Loans and all outstanding reimbursement
obligations under Letters of Credit; fourth, if an Event of Default has occurred
and is then continuing, at the Administrative Agent's option, (i) to fund a cash
collateral deposit to the Cash Collateral Account (or, at the Borrower's option,
to make Permitted Investments in which the Collateral Agent has a first
perfected Lien) sufficient to pay, and with direction to pay, all such
outstanding Revolving Loans that are LIBOR Loans on the last day of the
then-pending Interest Period therefor, or (ii) to repay outstanding Revolving
Loans that are LIBOR Loans and all Breakage Costs due in respect of such
repayment; fifth if an Event of Default has occurred and is then continuing, to
fund a cash collateral deposit in the Cash Collateral Account in an amount equal
to 105% of all LC Exposure; sixth, if the provisions of SECTION 2.12(e) are
applicable, or at the Administrative Agent's option or at the direction of the
Supermajority Lenders if an Event of Default has occurred and is continuing, to
prepay the Term Loan; seventh, to pay all other Obligations that are then
outstanding and then due and payable. If all Obligations are paid in accordance
with the foregoing, any excess shall be released to the Borrower.
(h) All credits against the Obligations shall be conditioned
upon final payment to the Administrative Agent of the items giving rise to such
credits. If any item deposited to the FRG Concentration Account and credited to
the Loans is dishonored or returned unpaid for any reason, whether or not such
return is rightful or timely, the Administrative Agent shall have the right to
reverse such credit and charge the amount of such item to the Borrower and the
Borrower shall indemnify the Administrative Agent, the Collateral Agent, the
Issuing Bank and the Lenders against all claims and losses resulting from such
dishonor or return.
SECTION 2.13 Fees.
(a) Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at a rate per annum equal to 0.375% on the average daily unused
amount of the Revolving Commitment of such Lender during the period from and
including the Effective Date to but excluding the date on which such Commitment
terminates. Accrued commitment fees shall be payable in arrears on the first day
of each month of each year and on the date on which the Revolving Commitments
terminate, commencing on the first such date to occur after the date hereof. All
commitment fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number
(38)
of days elapsed (including the first day but excluding the last day). For
purposes of computing commitment fees with respect to Revolving Commitments, a
Revolving Commitment of a Lender shall be deemed to be used to the extent of the
outstanding Revolving Loans and LC Exposure of such Lender (and the Swingline
Exposure of such Lender shall be disregarded for such purpose).
(b) Participation Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Lender a participation
fee with respect to its participations in Letters of Credit, which shall accrue
at a rate equal to (i) in the case of the portion of such Lender's LC Exposure
that is attributable to Standby Letters of Credit, the same Applicable Rate as
interest on LIBOR Revolving Loans on the average daily amount of such portion of
such Lender's LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements), in each case during the period from and
including the Effective Date to but excluding the later of the date on which
such Lender's Revolving Commitment terminates and the date on which such Lender
ceases to have any LC Exposure, and (ii) in the case of the portion of such
Lender's LC Exposure that is attributable to Commercial Letters of Credit,
one-half of the same Applicable Rate as interest on LIBOR Revolving Loans on the
average daily amount of such portion of such Lender's LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements), in each case
during the period from and including the Effective Date to but excluding the
later of the date on which such Lender's Revolving Commitment terminates and the
date on which such Lender ceases to have any LC Exposure. The Borrower also
agrees to pay to each Issuing Bank such Issuing Bank's standard fees with
respect to the issuance, amendment, renewal or extension of any Letter of Credit
or processing of drawings thereunder. Accrued participation fees shall be
payable in arrears on the first day of January, April, July and October of each
year, commencing on the first such date to occur after the Effective Date,
provided that all such fees shall be payable on the date on which the Revolving
Commitments terminate and any such fees accruing after the date on which the
Revolving Commitments terminate shall be payable on demand. Any other fees
payable to any Issuing Bank pursuant to this paragraph shall be payable within
10 days after demand. All participation fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(c) Administration Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Borrower and the Administrative
Agent in the Fee Letter.
(d) Fees Non-Refundable. All fees payable hereunder shall be
paid on the dates due, in immediately available funds, to the Administrative
Agent (or to the applicable Issuing Bank, in the case of fees payable to it) for
distribution, in the case of commitment fees and participation fees, to the
Lenders entitled thereto. Fees paid shall not be refundable under any
circumstances.
SECTION 2.14 Interest.
(a) ABR Loans. The Loans comprising each ABR Borrowing (other
than any Swingline Loan) shall bear interest at the Alternate Base Rate plus the
Applicable Rate. Each
(39)
Swingline Loan shall bear interest at the Alternate Base Rate plus the
Applicable Rate with respect to ABR Revolving Loans.
(b) LIBOR Loans. The Loans comprising each LIBOR Borrowing
shall bear interest at the Adjusted LIBO Rate for the Interest Period in effect
for such Borrowing plus the Applicable Rate.
(c) Default Interest. Notwithstanding the foregoing, upon the
occurrence and during the continuance of an Event of Default, at the option of
the Administrative Agent or upon the direction of the Required Lenders, interest
shall accrue on all outstanding Loans (including Swingline Loans) (after as well
as before judgment, as and to the extent permitted by law) at a rate per annum
(computed on the basis of the actual number of days elapsed over a year of 360
days) equal to the rate (including the Applicable Margin) in effect from time to
time plus 2.00% per annum.
(d) Timing of Payment of Interest. Accrued interest on each
Loan shall be payable in arrears (i) on each Interest Payment Date for such Loan
and (ii) in the case of Revolving Loans, upon termination of the Revolving
Commitments, provided that (A) interest accrued pursuant to paragraph (c) of
this Section shall be payable on demand, (B) in the event of any repayment or
prepayment of any Loan (other than a prepayment of an ABR Revolving Loan prior
to the end of the Revolving Availability Period), accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (C) in the event of any conversion of any LIBOR Loan
prior to the end of the current Interest Period therefor, accrued interest on
such Loan shall be payable on the effective date of such conversion.
(e) Computation. All interest hereunder shall be computed on
the basis of a year of 360 days, except that interest computed by reference to
the Alternate Base Rate at times when the Alternate Base Rate is based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in
a leap year) and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). The applicable
Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.15 Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a LIBOR Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such
Interest Period will not adequately and fairly reflect the cost to such Lenders
(or Lender) of making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;
(40)
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a LIBOR Borrowing shall be ineffective and
(ii) if any Borrowing Request requests a LIBOR Borrowing, such Borrowing shall
be made as an ABR Borrowing.
SECTION 2.16 Increased Costs.
(a) Costs of Making or Maintaining LIBOR Loans or Letters of
Credit. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or Issuing
Bank; or
(ii) impose on any Lender or any Issuing Bank or the London
interbank market any other condition (other than with respect to Taxes,
which shall be governed exclusively by SECTION 2.18) affecting this
Agreement or LIBOR Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any LIBOR Loan (or of maintaining its obligation
to make any such Loan) or to increase the cost to such Lender or such Issuing
Bank of participating in, issuing or maintaining any Letter of Credit or to
reduce the amount of any sum received or receivable by such Lender or such
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or such Issuing Bank, as the case may be, in
accordance with paragraph (c) below such additional amount or amounts as will
compensate such Lender or such Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or any Issuing Bank
determines that any Change in Law regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender's or such Issuing
Bank's capital or on the capital of such Lender's or such Issuing Bank's holding
company, if any, as a consequence of this Agreement or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by such Issuing Bank, to a level below that which such Lender or
such Issuing Bank or such Lender's or such Issuing Bank's holding company could
have achieved but for such Change in Law (taking into consideration such
Lender's or such Issuing Bank's policies and the policies of such Lender's or
such Issuing Bank's holding company with respect to capital adequacy), then from
time to time the Borrower will pay to such Lender or such Issuing Bank, as the
case may be, such additional amount or amounts as will compensate such Lender or
such Issuing Bank or such Lender's or such Issuing Bank's holding company for
any such reduction suffered.
(41)
(c) Certification. A certificate of a Lender or any Issuing
Bank setting forth the amount or amounts necessary to compensate such Lender or
such Issuing Bank or its holding company, as the case may be, as specified in
paragraph (a) or (b) of this Section and setting forth in reasonable detail the
basis of the calculation of such amount or amounts shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender or Issuing Bank, as the case may be, the amount shown as due on any
such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any
Lender or any Issuing Bank to demand compensation pursuant to this Section shall
not constitute a waiver of such Lender's or such Issuing Bank's right to demand
such compensation, provided that the Borrower shall not be required to
compensate a Lender or such Issuing Bank pursuant to this Section for any
increased costs or reductions incurred more than 270 days prior to the date that
such Lender or such Issuing Bank, as the case may be, notifies the Borrower of
the Change in Law giving rise to such increased costs or reductions and of such
Lender's or such Issuing Bank's intention to claim compensation therefor, and
provided further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 270-day period referred to above shall be
extended to include the period of retroactive effect thereof.
SECTION 2.17 Break Funding Payments. In the event of (a) the payment of
any principal of any LIBOR Loan other than on the last day of an Interest Period
applicable thereto (including as a result of an Event of Default), (b) the
conversion of any LIBOR Loan other than on the last day of the Interest Period
applicable thereto, (c) the failure to borrow, convert, continue or prepay any
Revolving Loan or Term Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under SECTION
2.12(f) and is revoked in accordance therewith), or (d) the assignment of any
LIBOR Loan other than on the last day of the Interest Period applicable thereto
as a result of a request by the Borrower pursuant to SECTION 2.20, then, in any
such event, the Borrower shall compensate each Lender for the loss, cost and
expense attributable to such event in accordance with the first two sentences of
this Section. In the case of a LIBOR Loan, such loss, cost or expense to any
Lender shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest that would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted LIBO
Rate that would have been applicable to such Loan, for the period from the date
of such event to the last day of the then current Interest Period therefor (or,
in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of
interest that would accrue on such principal amount for such period at the
interest rate that such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other
banks in the LIBOR market. A certificate of any Lender setting forth any amount
or amounts that such Lender is entitled to receive pursuant to this Section and
setting forth in reasonable detail the basis of calculation of such amount or
amounts shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
(42)
SECTION 2.18 Taxes.
(a) Gross-up for Deduction or Withholding of U.S. Taxes. Any
and all payments by or on account of any obligation of the Borrower hereunder or
under any other Loan Document shall be made free and clear of and without
deduction for any Taxes, provided that if the Borrower shall be required to
deduct any Taxes from such payments, then (i) if such deducted Tax is an
Indemnified Tax or Other Tax the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) Other Taxes. In addition, the Borrower shall pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Indemnification. The Borrower shall indemnify the
Administrative Agent, each Lender and each Issuing Bank, within 10 days after
written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative Agent, such Lender or Issuing Bank, as the case
may be, on or with respect to any payment by or on account of any obligation of
the Borrower hereunder or under any other Loan Document (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto (other than penalties, interest and reasonable
expenses arising from the gross negligence or wilful misconduct of such Lender),
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability and a copy of any written communication
shall be delivered to the Borrower by a Lender or Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or Issuing Bank,
and shall be conclusive absent manifest error, provided, however, that the
Lender shall not be obligated to make any of its tax returns available to the
Borrower.
(d) Delivery by Borrower of Receipt. As soon as practicable
after any payment of Indemnified Taxes or Other Taxes by the Borrower to a
Governmental Authority, the Borrower shall deliver to the Administrative Agent
the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative
Agent.
(e) Foreign Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the jurisdiction
in which the Borrower is located, the Code or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall
deliver to the Borrower or to the appropriate taxing authority if directed by
the Borrower (in each case with a copy to the Administrative Agent), at the time
or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Borrower as will permit such
(43)
payments to be made without withholding or at a reduced rate. Without limiting
the generality of the foregoing, each Foreign Lender shall, on the date it
becomes a Lender hereunder, deliver to the Borrower (with a copy to the
Administrative Agent) either (i) Form W-8ECI, (ii) Form W-8BEN evidencing such
Lender's entitlement to a complete exemption from withholding under an
applicable income tax treaty or (iii) in the case of a Lender that is not a
bank, Form W-8BEN or Form W-8IMY (or other form reasonably acceptable to the
Borrower) together with certifications to the effect that such Lender (x) is not
a bank within the meaning of Code section 881(c)(3)(A), (y) is not a 10%
shareholder of the Borrower within the meaning of Code section 881(c)(3)(B) and
(z) is not a controlled foreign corporation related to the Borrower within the
meaning of Code section 881(c)(3)(C).
(f) Refunds of Taxes. If the Administrative Agent or a Lender
(or assignee) receives a refund in respect of, or is granted a credit against or
release or remission for, any Taxes or Other Taxes that in its sole discretion
it determines is attributable to Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this SECTION 2.18, it shall within 30 days from
the date of such receipt pay over such refund, credit, release or remission to
the Borrower (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this SECTION 2.18 with respect to the Taxes
or Other Taxes giving rise to such refund, credit, release or remission), net of
all reasonable out-of-pocket expenses of the Administrative Agent or such Lender
(or assignee) and without interest (other than interest paid by the relevant
Governmental Authority with respect to such refund); provided, however, that the
Borrower, upon the request of the Administrative Agent or such Lender (or
assignee), agrees to repay the amount paid over to the Borrower (plus penalties,
interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender (or assignee) in the event the
Administrative Agent or such Lender (or assignee) is required to repay such
refund, to such Governmental Authority. The Administrative Agent or a Lender
will in good faith consider a request by the Borrower in seeking a refund,
credit, release or remission with respect to Taxes actually indemnified by the
Borrower, provided that neither the Administrative Agent nor any Lender shall be
under an obligation to take any action that such Person determines in its sole
discretion may have an adverse consequence.
SECTION 2.19 Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.
(a) Payments by the Borrower. The Borrower shall make each
payment required to be made by it hereunder or under any other Loan Document
(whether of principal, interest, fees or reimbursement of LC Disbursements, or
of amounts payable under SECTION 2.16, SECTION 2.17 or SECTION 2.18, or
otherwise) prior to 1:00 p.m., New York City time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at the offices of Fleet National Bank
at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, except payments to be made
directly to an Issuing Bank or the Swingline Lender as expressly provided herein
and except that payments pursuant to SECTION 2.16, SECTION 2.17, SECTION 2.18
and SECTION 9.03 shall be made directly to the Persons entitled thereto and
payments pursuant to
(44)
other Loan Documents shall be made to the Persons specified therein. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment under any Loan Document shall be due on a day
that is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
under each Loan Document shall be made in dollars.
(b) Insufficient Funds - LC Disbursements. If at any time
insufficient funds are received by and available to the Administrative Agent to
pay fully all amounts of principal, unreimbursed LC Disbursements, interest and
fees then due hereunder, such funds shall be applied (i) first, towards payment
of interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal and unreimbursed LC
Disbursements then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC Disbursements then
due to such parties.
(c) Right of Set-off. If any Lender shall, by exercising any
right of set-off or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Revolving Loans, Term Loans or
participations in LC Disbursements or Swingline Loans resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans, Term Loans and participations in LC Disbursements and Swingline
Loans and accrued interest thereon than the proportion received by any other
Lender, then the Lender receiving such greater proportion shall purchase (for
cash at face value) participations in the Revolving Loans, Term Loans and
participations in LC Disbursements and Swingline Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans, Term Loans and
participations in LC Disbursements and Swingline Loans, provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d) Non-Receipt from Borrower of Funds. Unless the
Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of
the Lenders or an Issuing Bank hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower
(45)
has made such payment on such date in accordance herewith and may, in reliance
upon such assumption, distribute to the Lenders or such Issuing Bank, as the
case may be, the amount due. In such event, if the Borrower has not in fact made
such payment, then each of the Lenders or such Issuing Bank, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or Issuing Bank with interest thereon, for
each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.
(e) Certain Deductions by the Administrative Agent. If any
Lender shall fail to make any payment required to be made by it pursuant to
SECTION 2.05(c), SECTION 2.06(d) or (e), SECTION 2.07(b), SECTION 2.09, SECTION
2.19(d) or SECTION 9.03(c), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to satisfy
such Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.20 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender
requests compensation under SECTION 2.16, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to SECTION 2.18, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to SECTION 2.16 or SECTION 2.18, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests
compensation under SECTION 2.16, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to SECTION 2.18, or if any Lender defaults in its obligation
to fund Loans hereunder, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in SECTION 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment), provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Revolving Commitment is
being assigned, each Issuing Bank and the Swingline Lender), which consent shall
not unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in LC
Disbursements and Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to
(46)
the extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts) and (iii) in the case of any such
assignment resulting from a claim for compensation under SECTION 2.16 or
payments required to be made pursuant to SECTION 2.18, such assignment will
result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
ARTICLE III
Representations and Warranties
------------------------------
The Borrower represents and warrants to the Lenders that:
SECTION 3.01 Organization; Powers. Each of the Borrower and the
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02 Authorization; Enforceability. The Financing Transactions
to be entered into by each Loan Party are within such Loan Party's corporate
powers and have been duly authorized by all necessary corporate and, if
required, stockholder action. This Agreement has been duly executed and
delivered by the Borrower and constitutes, and each other Loan Document to which
any Loan Party is to be a party, when executed and delivered by such Loan Party,
will constitute, a legal, valid and binding obligation of the Borrower or such
Loan Party (as the case may be), enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION 3.03 Governmental Approvals; No Conflicts. The Financing
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect and except filings
necessary to perfect Liens created under the Loan Documents, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of the Subsidiaries or any order
of any Governmental Authority, (c) will not violate or result in a default under
any indenture, agreement or other instrument binding upon the Borrower or any of
the Subsidiaries or its assets, or give rise to a right thereunder to require
any payment to be made by the Borrower or any of the Subsidiaries, and (d) will
not result in the creation or imposition of any Lien on any asset of the
Borrower or any of the Subsidiaries, except Liens created under the Loan
Documents.
(47)
SECTION 3.04 Financial Condition; No Material Adverse Change.
(a) Financial Condition. The Borrower has heretofore furnished
to the Lenders (i) its consolidated balance sheet and statements of income,
stockholders equity and cash flows as of and for the 2003 Fiscal Year, reported
on by Deloitte & Touche LLP, independent public accountants, (ii) its
consolidated balance sheet and statements of income, stockholders equity and
cash flows as of and for the fiscal quarter and the portion of the 2004 Fiscal
Year ended July 31, 2004, certified by its chief financial officer, and (iii)
for each fiscal month during the 2004 Fiscal Year ended not later than 30 days
prior to the date hereof, its monthly "Operating Cash Flow (EBITDA)" report,
certified by its chief financial officer. Such financial statements present
fairly, in all material respects and on a consolidated basis, the actual or pro
forma (as the case may be) financial position and results of operations and cash
flows of the Borrower and its consolidated Subsidiaries as of such dates and for
such periods in accordance with GAAP, subject to normal year-end audit
adjustments and the absence of footnotes in the case of the statements referred
to in clause (iv) above.
(b) Undisclosed Liabilities. Except as disclosed in the
financial statements referred to above or the notes thereto or in the
Information Memorandum and except for the Disclosed Matters, after giving effect
to the Financing Transactions, neither the Borrower nor any of the Subsidiaries
has, as of the Effective Date, any material contingent liabilities, unusual
long-term commitments or unrealized losses.
(c) Material Adverse Change. Since July 31, 2004, there has
been no material adverse change in the business, assets, operations, prospects
or condition, financial or otherwise, of the Borrower and the Subsidiaries,
taken as a whole (other than as set forth in Schedule 3.04(c)).
SECTION 3.05 Properties.
(a) Property Generally. Each of the Borrower and the
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business (including its Mortgaged
Properties). Except as permitted by SECTION 6.02, all such property is free and
clear of Liens.
(b) Intellectual Property. Each of the Borrower and the
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, patents and other intellectual property material to its business,
and the use thereof by the Borrower and the Subsidiaries does not infringe upon
the rights of any other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
(c) Real Property. Schedule 3.05(c) sets forth the address of
each real property that is owned or leased by the Borrower or any of the
Subsidiaries as of the Effective Date that is material to the business of the
Borrower or any Subsidiary after giving effect to the Financing Transactions.
(48)
(d) Condemnation. Except as set forth on Schedule 3.05(d), as
of the Effective Date, neither the Borrower nor any of the Subsidiaries has
received notice of (i) any pending or contemplated condemnation proceeding
affecting any Mortgaged Property where such proceeding, if determined adversely
to the Borrower, could reasonably be expected to materially and adversely affect
the operation thereof or (ii) any sale or disposition thereof in lieu of
condemnation. Except for Permitted Encumbrances, neither any Mortgaged Property
nor any interest therein is subject to any right of first refusal, option or
other contractual right to purchase such Mortgaged Property or interest therein.
SECTION 3.06 Litigation and Environmental Matters, Etc.
(a) Litigation. There are no actions, suits or proceedings by
or before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
of the Subsidiaries as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect (other
than as set forth in Part A of Schedule 3.06).
(b) Environmental Laws. Except with respect to any matters
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, and except as set forth in Part B of
Schedule 3.06 (such matters, together with the matters set forth in Part A of
Schedule 3.06, being herein called the "Disclosed Matters"), neither the
Borrower nor any of the Subsidiaries (i) is currently not in compliance with any
Environmental Law or does not maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received written notice of any claim with
respect to any Environmental Liability or (iv) knows of any basis for any
Environmental Liability.
(c) Disclosed Matters, Etc. Since the date of this Agreement,
there has been no change in the status of the Disclosed Matters that,
individually or in the aggregate, has resulted in, or materially increased the
likelihood of, a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.
(d) Burdensome Restrictions. Except as disclosed in Schedule
6.10, none of the Borrower nor any of the Subsidiaries is a party to any
agreement or arrangement that would impose restrictions upon the Borrower or any
of the Subsidiaries of the type prohibited under SECTION 6.10.
SECTION 3.07 Compliance with Laws and Agreements. Each of the Borrower
and the Subsidiaries is in compliance with all laws, regulations and orders of
any Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.
(49)
SECTION 3.08 Investment and Holding Company Status. Neither the
Borrower nor any of the Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09 Taxes. Each of the Borrower and the Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10 ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts that have been
issued prior to the Effective Date, exceed by more than $500,000 the fair market
value of the assets of such Plan as of such date, and the present value of all
accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No.
87) did not, as of such date of the most recent financial statements reflecting
such amounts, exceed by more than $1,000,000 the fair market value of the assets
of all such underfunded Plans as of such date.
SECTION 3.11 Disclosure. The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which the
Borrower or any of the Subsidiaries is subject, and all other matters (other
than matters of a general economic nature or matters otherwise generally known)
known to any of them, that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. Neither the Information
Memorandum nor any of the other reports, financial statements, certificates or
other information furnished by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or any other Loan Document or delivered hereunder or thereunder (as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time (it
being understood that such projected financial information is subject to
significant financial uncertainties and contingencies and that no assurance can
be given that such projections will be realized).
SECTION 3.12 Subsidiaries. Schedule 3.12 sets forth the name of, and
the ownership interest of the Borrower in, each Subsidiary of the Borrower and
identifies each Subsidiary that is a Subsidiary Loan Party or a Special Purpose
Subsidiary, in each case as of the Effective Date.
(50)
SECTION 3.13 Insurance. Schedule 3.13 sets forth a description of all
insurance maintained by or on behalf of the Borrower and the Subsidiaries as of
the Effective Date. As of the Effective Date, all premiums in respect of such
insurance that are due and payable have been paid.
SECTION 3.14 Labor Matters. There are no strikes, lockouts or slowdowns
against the Borrower or any Subsidiary pending (or, to the knowledge of the
Borrower, threatened) that could reasonably be expected to have a Material
Adverse Effect. All payments due from the Borrower or any Subsidiary, or for
which any claim may be made against the Borrower or any Subsidiary, on account
of wages and employee health and welfare insurance and other benefits, have been
paid or accrued as a liability on the books of the Borrower or such Subsidiary,
except to the extent that the failure to make such payments or accrue such
liability could not reasonably be expected to have a Material Adverse Effect.
The consummation of the Financing Transactions will not give rise to any right
of termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which the Borrower or any Subsidiary is bound
where such right or termination or renegotiation could reasonably be expected to
have a Material Adverse Effect.
SECTION 3.15 Solvency. Immediately after the consummation of the
Financing Transactions to occur on the Effective Date and immediately following
the making of each Loan made on the Effective Date and after giving effect to
the application of the proceeds of such Loans, (a) the fair value of the assets
of each Loan Party, at a fair valuation, will exceed its debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of
the property of each Loan Party will be greater than the amount that will be
required to pay the probable liability of its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) each Loan Party will be able to pay its debts
and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) each Loan Party will not have
unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted and is proposed to be conducted
following the Effective Date. The amount of any contingent liability at any time
shall be computed as the amount that, in light of all facts and circumstances
existing at the time, represents the amount that could reasonably be expected to
become an actual or material liability.
SECTION 3.16 Security Documents.
(a) Pledge Agreement. The Pledge Agreement is effective to
create in favor of the Administrative Agent, for the ratable benefit of the
Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Pledge Agreement) and, when the Collateral is
delivered to the Administrative Agent, the Pledge Agreement shall constitute a
fully perfected first priority Lien on all right, title and interest of the
pledgor thereunder in such Collateral to the extent such delivery is effective
to perfect a Lien on such Collateral, in each case prior and superior in right
to any other Person other than with respect to Liens expressly permitted by
SECTION 6.02 which have priority by operation of law over the Liens in favor of
the Secured Parties.
(51)
(b) Security Agreement. The Security Agreement is effective to
create in favor of the Administrative Agent, for the ratable benefit of the
Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Security Agreement) in which a Lien may be
perfected by filing a financing statement and, when financing statements in
appropriate form are filed in the offices specified on Schedule 6 to the
Perfection Certificate, the Security Agreement shall constitute a fully
perfected Lien on all right, title and interest of the grantors thereunder in
such Collateral (other than the Intellectual Property (as defined in the
Security Agreement), in each case prior and superior in right to any other
Person, other than with respect to Liens expressly permitted by SECTION 6.02
which have priority by operation of law over the Liens in favor of the Secured
Parties.
(c) Intellectual Property. When the Security Agreement is
filed in the United States Patent and Trademark Office and the United States
Copyright Office, the Security Agreement shall constitute a fully perfected Lien
on all right, title and interest of the Loan Parties in the Intellectual
Property (as defined in the Security Agreement) in which a Lien may be perfected
by filing, recording or registering a security agreement, financing statement or
analogous document in the United States Patent and Trademark Office or the
United States Copyright Office, as applicable, in each case prior and superior
in right to any other Person other than with respect to Liens expressly
permitted by SECTION 6.02 which have priority by operation of law over the Liens
in favor of the Secured Parties (it being understood that subsequent recordings
in the United States Patent and Trademark Office and the United States Copyright
Office may be necessary to perfect a lien on registered trademarks, trademark
applications and copyrights acquired by the Loan Parties after the date hereof).
(d) Mortgages. The Mortgages are effective to create, subject
to the exceptions listed in each title insurance policy covering such Mortgage,
in favor of the Administrative Agent, for the ratable benefit of the Secured
Parties, a legal, valid and enforceable Lien on all of the Loan Parties' right,
title and interest in and to the Mortgaged Properties thereunder and the
proceeds thereof, and when the Mortgages are filed in the appropriate recording
offices, the Mortgages shall constitute a Lien on all right, title and interest
of the Loan Parties in such Mortgaged Properties and the proceeds thereof, in
each case prior and superior in right to any other person, other than with
respect to the rights of Persons pursuant to Liens expressly permitted by
SECTION 6.02 which have priority by operation of law over the Liens in favor of
the Secured Parties.
SECTION 3.17 Federal Reserve Regulations. No part of the proceeds of
any Loan or any Letter of Credit will be used, whether directly or indirectly,
and whether immediately, incidentally or ultimately, for any purpose that
entails a violation of, or that is inconsistent with, the provisions of
Regulation U or X.
SECTION 3.18 DDAs. Annexed hereto as Schedule 3.18 is a list of all
present checking or other demand deposit accounts maintained by any Loan Party
(the "DDAs"), which Schedule includes, with respect to each depository (i) the
name and address of that depository; (ii) the account number(s) maintained with
such depository; and (iii) to the extent known, a contact person at such
depository.
(52)
SECTION 3.19 Credit Card Arrangements. Annexed hereto as Schedule 3.19
is a list describing all arrangements to which any Loan Party is a party with
respect to the payment to any Loan Party of the proceeds of all credit card
charges for sales by such Loan Party.
ARTICLE IV
Conditions
----------
SECTION 4.01 Effective Date. This Agreement shall not become effective
and the obligations of the Lenders to make Loans and of the Issuing Banks to
issue Letters of Credit hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance
with SECTION 9.02):
(a) Execution. The Administrative Agent (or its counsel) shall
have received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.
(b) Opinions. The Administrative Agent shall have received a
favorable written opinion (addressed to the Administrative Agent and
the Lenders and dated the Effective Date) of each of (i) Shearman &
Sterling, counsel for the Borrower, substantially in the form of
Exhibit B-1, (ii) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower,
substantially in the form of Exhibit B-2, and (iii) local counsel in
each jurisdiction where a Mortgaged Property is located, substantially
in the form of Exhibit C, and, in the case of each such opinion
required by this paragraph, covering such other matters relating to the
Loan Parties, the Loan Documents or the Financing Transactions as the
Required Lenders shall reasonably request. The Borrower hereby requests
such counsel to deliver such opinions.
(c) Corporate Documents. The Administrative Agent shall have
received such documents and certificates as the Administrative Agent or
its counsel may reasonably request relating to the organization,
existence and good standing of each Loan Party, the authorization of
the Financing Transactions and any other legal matters relating to the
Loan Parties, the Loan Documents or the Financing Transactions, all in
form and substance satisfactory to the Administrative Agent and its
counsel.
(d) Officer's Certificate. The Administrative Agent shall have
received a certificate, dated the Effective Date and signed by the
President, a Vice President or a Financial Officer of the Borrower,
confirming compliance with the conditions set forth in paragraphs (a)
and (b) of SECTION 4.02.
(e) Fees and Expenses. The Lenders and their Affiliates shall
have received all fees and other amounts due and payable on or prior to
the Effective Date, including, to the extent invoiced, reimbursement or
payment of all out-of-pocket expenses required to be reimbursed or paid
by any Loan Party hereunder or under any other Loan Document.
(53)
(f) Pledge Agreement. The Administrative Agent shall have
received counterparts of the Pledge Agreement signed on behalf of the
Borrower and each Subsidiary Loan Party thereto, together with stock
certificates representing all the outstanding shares of capital stock
of each Subsidiary (other than each Special Purpose Subsidiary) owned
by or on behalf of any Loan Party as of the Effective Date after giving
effect to the Financing Transactions (except that stock certificates
representing shares of common stock of a Foreign Subsidiary may be
limited to 65% of the outstanding shares of voting common stock of such
Foreign Subsidiary), promissory notes evidencing all intercompany
Indebtedness owed to any Loan Party by the Borrower or any Subsidiary
as of the Effective Date after giving effect to the Financing
Transactions and stock powers and instruments of transfer, endorsed in
blank, with respect to such stock certificates and promissory notes.
(g) Security Agreement. The Administrative Agent shall have
received counterparts of the Security Agreement signed on behalf of the
Borrower and each Subsidiary Loan Party, together with the following:
(i) all documents and instruments, including Uniform
Commercial Code financing statements, required by law or
reasonably requested by the Administrative Agent to be filed,
registered or recorded to create or perfect the Liens intended
to be created under the Security Agreement and all such
documents and instruments shall have been so filed, registered
or recorded to the satisfaction of the Collateral Agent; and
(ii) a completed Perfection Certificate dated the
Effective Date and signed by an executive officer or Financial
Officer of the Borrower, together with all attachments
contemplated thereby, including the results of a search of the
Uniform Commercial Code (or equivalent) filings made with
respect to the Loan Parties in the jurisdictions contemplated
by the Perfection Certificate and copies of the financing
statements (or similar documents) disclosed by such search and
evidence reasonably satisfactory to the Administrative Agent
that the Liens indicated by such financing statements (or
similar documents) are permitted by SECTION 6.02 or have been
released.
(h) Mortgages. The Administrative Agent shall have received
counterparts of a Mortgage with respect to each Mortgaged Property
signed on behalf of the record owner or lessee, as applicable, of such
Mortgaged Property. The Administrative Agent shall also have received,
(A) with respect to each Mortgaged Property that is
owned by a Loan Party, a policy or policies of title insurance
issued by a nationally recognized title insurance company,
insuring the Lien of each such Mortgage as a valid first Lien
on the Mortgaged Property described therein, free of any other
Liens except as permitted by SECTION 6.02, in form and
substance reasonably acceptable to the Administrative Agent,
together with such endorsements, coinsurance and
(54)
reinsurance as the Administrative Agent or the Required
Lenders may reasonably request, and
(B) with respect to each Mortgaged Property that is
leased by a Loan Party, a consent in form satisfactory to the
Administrative Agent from the lessor under the respective
lease to the extent required under SECTION 5.13(c), covering
such Mortgaged Properties as the Administrative Agent may
reasonably request.
(i) Guarantee Agreement. The Administrative Agent shall have
received (i) counterparts of the Guarantee Agreement signed on behalf
of each Subsidiary Loan Party and (ii) counterparts of the Indemnity,
Subrogation and Contribution Agreement signed on behalf of the Borrower
and each Subsidiary Loan Party.
(j) Insurance. The Administrative Agent shall have received
evidence satisfactory to it that the insurance required by SECTION 5.07
is in effect.
(k) Environmental Liabilities. The Lenders shall be reasonably
satisfied as to the amount and nature of any Environmental Liabilities
to which the Borrower and the Subsidiaries may be subject, and the
plans of the Borrower with respect thereto, after giving effect to the
Financing Transactions and the consummation of the other transactions
contemplated hereby.
(l) Minimum Excess Availability; Working Capital Requirements.
After giving effect to the Credit Extensions made or outstanding on the
Effective Date, the Borrower shall have Excess Availability of at least
(i) $75,000,000 if the Closing Date occurs on September 30, 2004, or
(ii) $65,000,000 if the Closing Date occurs after September 30, 2004.
For purposes hereof, Excess Availability shall be calculated without
duplication of any LC Exposure under the back-to-back Letter of Credit
issued to JPMorgan Chase Bank and any Letters of Credit issued
hereunder to beneficiaries of letters of credit issued by JPMorgan
Chase Bank which are supported by such back-to-back Letter of Credit.
In addition, the Lenders shall be reasonably satisfied with the
sufficiency of amounts available under this Agreement to meet the
ongoing working capital requirements of the Borrower and the
Subsidiaries following the Financing Transactions and the consummation
of the other transactions contemplated hereby.
(m) Financial Statements; Capitalization, Etc. The Lenders
shall have received the financial statements referred to in SECTION
3.04(a), and shall be satisfied with the capitalization, structure and
equity ownership of the Borrower and the Subsidiaries and with the tax
position and contingent tax liabilities of the Borrower and the
Subsidiaries, and any tax sharing agreements to which the Borrower and
the Subsidiaries will be a party.
(n) Assignment of Existing Indebtedness. All rights of the
administrative agent and the lenders under the Existing Credit
Agreement and all security documents relating thereto shall have been
assigned to the Administrative Agent and the Lenders,
(55)
including, without limitation, all Liens on the assets of the Borrower
or any Subsidiary securing any obligations thereunder or under any
related agreement, each such assignment to be reasonably satisfactory
in form and substance to the Administrative Agent.
(o) Employment Arrangements. The Lenders shall be satisfied
with respect to arrangements for the retention of key senior management
personnel, including evidence of the execution and delivery of
satisfactory employment agreements with respect to such key personnel,
and shall be satisfied with the composition of the boards of directors
of the Loan Parties.
(p) Business Plan; Financial Projections. The Lenders shall
have received and be satisfied with (a) a detailed business plan for
the 2004 Fiscal Year and (b) financial projections and business
assumptions for the Borrower and the subsidiaries for the period from
the Effective Date through the end of the 2005 Fiscal Year.
(q) Valuations; Due Diligence Investigation. The Lenders shall
have received (i) an appraisal of the Loan Parties' inventory and an
opinion of value of each Mortgaged Property and (ii) a satisfactory
independent commercial finance examination of the Borrower and the
Subsidiaries, in each case, in form and substance reasonably
satisfactory to the Administrative Agent.
(r) Borrowing Request. The Administrative Agent shall have
received a Borrowing Request and a letter of credit request described
in SECTION 2.04 with respect to the Loans to be made, and Letters of
Credit to be issued on the Effective Date.
(s) Consents. All necessary consents and approvals to the
transactions contemplated hereby shall have been obtained and shall be
reasonably satisfactory to the Agents.
(t) No Material Adverse Change. The Administrative Agent shall
be reasonably satisfied that any financial statements delivered to it
fairly present the business and financial condition of the Borrower and
its Subsidiaries, and that there has been no material adverse change in
the assets, business, operation, financial condition or income of the
Borrower and its Subsidiaries, taken as a whole, since the date of the
most recent financial information delivered to the Administrative
Agent.
(u) Litigation. There shall not be pending any litigation or
other proceeding, the result of which could reasonably be expected to
have a Material Adverse Effect on the Borrower and its Subsidiaries,
taken as a whole.
(v) Material Contracts. There shall not have occurred any
default, nor shall any event exist which is, or solely with the passage
of time, the giving of notice or both, would be a default under any
Material Indebtedness of any Loan Party. The consummation of the
transactions contemplated hereby shall not conflict with, or result in
a default or event of default under, any material agreement of any Loan
Party (and the Administrative Agent and the Lenders shall receive a
satisfactory opinion of Borrower's
(56)
counsel to that effect). No event shall exist which is, or solely with
the passage of time, the giving of notice or both, would be a default
under any material agreement of any Loan Party.
(w) Governmental Regulations. No material changes in
governmental regulations or policies affecting the Loan Parties, the
Administrative Agent, or any Lender involved in this transaction shall
have occurred prior to the Effective Date which could, individually or
in the aggregate, materially adversely affect the transactions
contemplated by this Agreement.
(x) Syndication. There shall not have occurred any disruption
or material adverse change in the financial or capital markets in
general that would, in the reasonable opinion of the Administrative
Agent, have a material adverse effect on the syndication of the Loans.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
SECTION 4.02 Initial and Subsequent Extensions of Credit. The
obligation of each Lender to make a Loan on the occasion of any Borrowing, and
of each Issuing Bank to issue, amend, renew or extend any Letter of Credit, is
subject to the satisfaction of the following conditions:
(a) Truth of Representations and Warranties. The
representations and warranties of each Loan Party set forth in the Loan
Documents shall be true and correct in all material respects on and as
of the date of such Borrowing or the date of issuance, amendment,
renewal or extension of such Letter of Credit, as applicable, except to
the extent such representations and warranties specifically relate to
an earlier date, in which case such representations and warranties
shall have been true, correct and complete in all material respects on
and as of such earlier date.
(b) No Defaults. At the time of and immediately after giving
effect to such Borrowing or the issuance, amendment, renewal or
extension of such Letter of Credit, as applicable, no Default shall
have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
ARTICLE V
Affirmative Covenants
---------------------
Until the Commitments have expired or been terminated and the principal
of and interest on each Loan and all fees payable hereunder shall have been paid
in full and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees with
the Lenders that:
(57)
SECTION 5.01 Financial Statements and Other Information. The Borrower
will furnish to the Administrative Agent (and the Administrative Agent will
furnish to the Lenders):
(a) within 90 days after the end of each Fiscal Year, its
audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end of and
for such year, setting forth in each case in comparative form the
figures for the previous Fiscal Year, all reported on by Deloitte &
Touche LLP or other independent public accountants of recognized
national standing (without a "going concern" or like qualification or
exception and without any qualification or exception as to the scope of
such audit) to the effect that such consolidated financial statements
present fairly in all material respects the financial condition and
results of operations of the Borrower and its consolidated Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied
(except as otherwise disclosed in such financial statements);
(b) within 45 days after the end of each of the first three
fiscal quarters of each Fiscal Year, its consolidated balance sheet and
related statements of operations, stockholders' equity and cash flows
as of the end of and for such fiscal quarter and the then elapsed
portion of the Fiscal Year, setting forth in each case in comparative
form the figures for the corresponding period or periods of (or, in the
case of the balance sheet, as of the end of) the previous Fiscal Year,
all certified by one of its Financial Officers as presenting fairly in
all material respects the financial condition and results of operations
of the Borrower and its consolidated Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied, subject to normal
year-end and audit adjustments and the absence of footnotes;
(c) within 30 days after the end of each of the first two
fiscal months of each fiscal quarter of the Borrower, the monthly
"Operating Cash Flow (EBITDA)" report for such month and for the
preceding twelve month period, substantially in the form delivered to
the Lenders prior to the Effective Date;
(d) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer of
the Borrower (i) certifying as to whether a Default has occurred and,
if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) in the
case of such financial statements under clause (a) or (b) above,
setting forth reasonably detailed calculations demonstrating compliance
with SECTION 6.15, SECTION 6.16 and SECTION 6.17 and determining the
Applicable Rate and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the Borrower's
audited financial statements referred to in SECTION 3.04 and, if any
such change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements
under clause (a) above, a certificate of the accounting firm that
reported on such financial statements (i) stating that their audit has
included a review of the terms of Article VI, SECTION 6.01 through
SECTION 6.05, SECTION 6.08 and SECTION 6.14 through SECTION 6.17 of
(58)
this Agreement and any definitions set forth in this Agreement relating
thereto, in each case as they relate to accounting matters, and (ii)
stating whether, in connection with their audit, any condition or event
that constitutes a Default has come to their attention, specifying the
nature and period of existence thereof, provided that such accountants
shall not be liable by reason of any failure to obtain knowledge of any
such Default that would not be disclosed in the course of their audit
examination;
(f) within thirty (30) days after the end of each of the
fiscal quarters of the Borrower, a detailed report setting forth (i)
new Capital Leases and Operating Leases for Real Property Assets
entered into by the Borrower or other Loan Parties during the preceding
fiscal quarter, (ii) a list of new Related Stores of the Borrower and
the other Loan Parties opened during the preceding fiscal quarter,
(iii) a list of Related Stores of the Borrower and the other Loan
Parties closed for operation during the preceding fiscal quarter, (iv)
a list of Capital Leases and Operating Leases for Real Property Assets
which were terminated by the Borrower or the other Loan Parties during
the preceding fiscal quarter and (v) any transactions of the type
described in SECTION 6.05(e) or (f);
(g) promptly upon receipt thereof, copies of any management
letter submitted by the Borrower's independent certified public
accountants to management in connection with their annual audit;
(h) notice of any (i) sale or other disposition of assets of
any Borrower permitted under SECTION 6.05(c), (d), (h) and (i) hereof
promptly following the date of consummation of such sale or disposition
or (ii) incurrence of any Indebtedness permitted under SECTION
6.01(a)(iv)(to the extent not included under Section 5.01(f) above),
(a)(vi), or (a)(xiii), in each case in excess of $2,000,000, within
thirty (30) days following the incurrence of such Indebtedness;
(i) as soon as practicable and in any event no later than
February 28 of each Fiscal Year, a detailed consolidated budget for
such Fiscal Year (including a projected consolidated balance sheet and
related statements of projected operations and cash flow as of the end
of and for such Fiscal Year) and, promptly when available, any
significant revisions of such budget;
(j) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Borrower or any Subsidiary with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national
securities exchange, as the case may be; and
(k) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Borrower or any Subsidiary, or compliance with the
terms of any Loan Document, as the Administrative Agent or any Lender
may reasonably request.
(59)
SECTION 5.02 Notices of Material Events. The Borrower will furnish to
the Administrative Agent and each Lender prompt written notice of the following
promptly after any officer of the Borrower obtains knowledge thereof:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Borrower or any Affiliate thereof that could
reasonably be expected (after giving effect to coverage and policy
limits of insurance policies maintained by the Borrower and the
Subsidiaries issued by unaffiliated insurers) to result in a Material
Adverse Effect;
(c) any pending or threatened (in writing) strike, work
stoppage, unfair labor practice claim, or other labor dispute affecting
any Loan Party or the termination of any collective bargaining
agreement or other labor contract to which any Loan Party is a party,
in each case which could reasonably be expected to have, or has
resulted in, a Material Adverse Effect;
(d) notice of any claim asserted against any Loan Party or any
of their assets for any Environmental Liability, or the occurrence of
any Release, in each case which could reasonably be expected to have,
or has resulted in, a Material Adverse Effect;
(e) notice of any default by any Loan Party under any Capital
Lease or Operating Lease relating to Real Property Assets which could
reasonably be expected to have, or has resulted in, a Material Adverse
Effect, together with a copy of all notices of such default received
from any lessor; and
(f) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03 Information Regarding Collateral.
(a) Changes in Corporate Name or Location, Etc. The Borrower
will furnish to the Administrative Agent prompt written notice of any change (i)
in any Loan Party's corporate name or in any trade name used to identify it in
the conduct of its business or in the ownership of its properties, (ii) in the
location of any Loan Party's chief executive office or its principal place of
business or any office or facility at which Equipment or Inventory (as each such
term is defined in the Security Agreement) owned by it is located (including the
establishment of any such new office or facility), (iii) in any Loan Party's
identity or corporate structure or (iv) in any Loan Party's Federal Taxpayer
Identification Number or state organizational number. The Borrower agrees not to
effect or permit any change referred to in the preceding sentence unless all
filings have been made under the Uniform Commercial Code or
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otherwise that are required in order for the Administrative Agent to continue at
all times following such change to have a perfected security interest in all the
Collateral. The Borrower also agrees promptly to notify the Administrative Agent
if any material portion of the Collateral is damaged or destroyed.
SECTION 5.04 Existence; Conduct of Business. The Borrower will, and
will cause each of the Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and trade names material to the conduct of its business,
provided that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution permitted under SECTION 6.03 and provided further
that neither the Borrower nor any of the Subsidiaries shall be required to
preserve, renew or keep in full force and effect any of the foregoing if the
board of directors of the Borrower or such Subsidiary, as the case may be, shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Borrower or of such Subsidiary, as the case may be, and that
the loss thereof is not disadvantageous in any material respect to the Borrower
or such Subsidiary, as the case may be.
SECTION 5.05 Payment of Obligations. The Borrower will, and will cause
each of the Subsidiaries to, pay its Indebtedness and other obligations,
including Tax liabilities, lease payments and trade payables, when due except
where (a) the validity or amount thereof is being contested in good faith by
appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on
its books adequate reserves or has made other appropriate provision with respect
thereto to the extent required in accordance with GAAP, (c) such contest
effectively suspends the enforcement of any Lien securing such obligation, (d)
no Lien or claim having priority over the Lien of the Collateral Agent shall
have arisen, and (e) the failure to make payment pending such contest could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.06 Maintenance of Properties. The Borrower will, and will
cause each of the Subsidiaries to, or to the extent that the right or obligation
to do so rests with another Person, exercise commercially reasonable efforts to
cause such other Person to, keep and maintain all property material to the
conduct of its business in good working order and condition, ordinary wear and
tear excepted.
SECTION 5.07 Insurance. The Borrower will, and will cause each of the
Subsidiaries to, maintain, with financially sound and reputable insurance
companies:
(a) Insurance Generally. Insurance with respect to its
properties and business and the properties and businesses of the
Subsidiaries against loss or damage of the kinds customarily carried or
maintained under similar circumstances by corporations of established
reputation engaged in similar businesses, in such amounts (giving
effect to self-insurance for insurance other than casualty insurance
which shall not be self-insured except to the extent of any
deductible), with such deductibles and by such methods as shall be
customary for corporations similarly situated in the industry. Each
such policy of insurance that insures against loss or damage with
respect to any Collateral shall name the Administrative Agent for the
benefit of Lenders as the loss payee thereunder (but may provide that
prior to the occurrence of an Event of Default, payments of less than
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$5,000,000 per occurrence shall be payable solely to the Borrower
(subject to the Borrower's obligations under SECTION 2.12 hereof)) and
shall provide for at least 30 days prior written notice to the
Administrative Agent of any modification or cancellation of such
policy. Upon receipt by the Administrative Agent of any insurance
proceeds as loss payee, the Administrative Agent shall, and the
Borrower hereby authorizes the Administrative Agent to, apply such
insurance proceeds, to the extent that they are Net Proceeds, to prepay
the Loans in accordance with SECTION 2.12(c).
(b) Flood Hazard Insurance. If at any time the area in which
any Mortgaged Property is located is designated (i) a "flood hazard
area" in any Flood Insurance Rate Map published by the Federal
Emergency Management Agency (or any successor agency), the Borrower
shall obtain flood insurance in such total amount as is reasonable and
customary for companies engaged in the business of operating
supermarkets, and otherwise comply with the National Flood Insurance
Program as set forth in the Flood Disaster Protection Act of 1973, as
amended from time to time, or (ii) a "Zone 1" area, the Borrower shall
obtain earthquake insurance in such total amount as is reasonable and
customary for companies engaged in the business of operating
supermarkets.
SECTION 5.08 Casualty and Condemnation. Notice of Casualties or
Condemnation. The Borrower will furnish to the Administrative Agent and the
Lenders prompt written notice of any casualty or other insured damage to any
material portion of Collateral or the commencement of any action or proceeding
for the taking of any material portion of Collateral under power of eminent
domain or by condemnation or similar proceeding.
SECTION 5.09 Books and Records; Inspection. The Borrower will, and will
cause each of the Subsidiaries to, keep proper books of record and account in
which full, true and correct entries are made of all dealings and transactions
in relation to its business and activities. The Borrower will, and will cause
each of the Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice, to visit and
inspect its properties, to examine and make extracts from its books and records,
and to discuss its affairs, finances and condition with its officers and
independent accountants (provided that, so long as no Default or Event of
Default shall have occurred and be continuing, representatives of the Borrower
or such Subsidiary may be present at and participate in such discussions with
such independent accountants), all at such reasonable times during normal
business hours and as often as reasonably requested.
SECTION 5.10 Compliance with Laws. The Borrower will, and will cause
each of the Subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority (including Environmental Laws) applicable to it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.11 Use of Proceeds and Letters of Credit. The proceeds of the
Loans will be used only for working capital and other general corporate
purposes. No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a
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violation of Regulations U and X. Letters of Credit will be issued only for
general corporate purposes.
SECTION 5.12 Subsidiaries.
(a) Additional Subsidiaries. If any additional Subsidiary is
formed or acquired after the Effective Date, the Borrower will notify the
Administrative Agent and the Lenders thereof and (a) if such Subsidiary is a
Subsidiary Loan Party, the Borrower will cause such Subsidiary to become a party
to the Guarantee Agreement, the Indemnity, Subrogation and Contribution
Agreement and each applicable Security Document in the manner provided therein
within 15 Business Days after such Subsidiary is formed or acquired and, subject
to preexisting Liens on such Subsidiary's assets and the terms thereof (to the
extent the same are permitted under this Agreement), promptly take such actions
to create and perfect Liens on such Subsidiary's assets to secure the
Obligations as the Administrative Agent or the Required Lenders shall reasonably
request and (b) if any shares of capital stock or Indebtedness of such
Subsidiary are owned by or on behalf of any Loan Party, the Borrower will cause
such shares and promissory notes evidencing such Indebtedness to be pledged
pursuant to the Pledge Agreement within 15 Business Days after such Subsidiary
is formed or acquired (except that, if such Subsidiary is a Foreign Subsidiary,
shares of common stock of such Subsidiary to be pledged pursuant to the Pledge
Agreement may be limited to 65% of the outstanding shares of voting common stock
of such Subsidiary).
(b) Subsidiaries to be Wholly Owned. The Borrower will, and
will cause each of the Subsidiaries to, take such action from time to time as
shall be necessary to ensure that each Subsidiary Loan Party is a wholly owned
Subsidiary of the Borrower. In the event that any additional shares of stock
shall be issued by any Subsidiary, the respective Obligor agrees forthwith to
deliver to the Administrative Agent pursuant to each applicable Security
Document such shares of stock (except that, if such Subsidiary is a Foreign
Subsidiary, shares of common stock of such Subsidiary to be pledged pursuant to
the Pledge Agreement may be limited to 65% of the outstanding shares of voting
common stock of such Subsidiary).
SECTION 5.13 Further Assurances.
(a) Execution of Documents and Financing Statements, Etc. The
Borrower will, and will cause each Subsidiary Loan Party to, execute any and all
further documents, financing statements, agreements and instruments, and take
all such further actions (including the filing and recording of financing
statements, fixture filings, mortgages, deeds of trust and other documents),
that may be required under any applicable law, or which the Administrative Agent
or the Required Lenders may reasonably request, to effectuate the transactions
contemplated by the Loan Documents or to grant or perfect or continue the
perfection of the Liens created or intended to be created by the Security
Documents or the validity or priority of any such Lien, all at the expense of
the Loan Parties. The Borrower also agrees to provide to the Administrative
Agent, from time to time upon request, evidence reasonably satisfactory to the
Administrative Agent as to the perfection and priority of the Liens created or
intended to be created by the Security Documents.
(63)
(b) Liens on Material Assets. If (i) any Material Assets
(including any real property or improvements thereto or any interest therein)
are acquired by the Borrower or any Subsidiary Loan Party after the Effective
Date (other than assets constituting Collateral under the Security Agreement
that become subject to the Lien of the Security Agreement upon acquisition
thereof) or (ii) Liens permitted pursuant to SECTION 6.02 in favor of any Person
other than the Administrative Agent or the Lenders on any Material Assets are
released or cease to exist and such assets are not subject to any Liens (other
than Permitted Encumbrances), the Borrower will notify the Administrative Agent
and the Lenders thereof, and, unless consented otherwise by the Administrative
Agent or the Required Lenders, the Borrower will cause such assets to be
subjected to a Lien securing the Obligations, subject (in the case of clause (i)
above) to preexisting Liens on such assets and the terms thereof (to the extent
the same are permitted under this Agreement), and will take, and cause the
Subsidiary Loan Parties to take, such actions as shall be necessary or
reasonably requested by the Administrative Agent to grant and perfect such
Liens, including actions described in paragraph (a) of this Section, all at the
expense of the Loan Parties, provided that the Loan Parties shall not be
required to subject any Real Property Asset or any Equipment to a Lien in favor
of the Administrative Agent under the Security Documents during the Permitted
Pending Lien Period for such Real Property Asset or Equipment.
(c) Leasehold Mortgage Consent Rights. The Borrower will, and
will cause each of the Subsidiaries to, use their respective best efforts to
obtain lease terms in any lease entered into by the Borrower or any Subsidiary
Loan Party after the date hereof not expressly prohibiting the recording in the
relevant real estate filing office of an appropriate memorandum of lease and the
encumbrancing of the leasehold interest of the Borrower or such Subsidiary Loan
Party, as the case may be, in the property that is the subject of such lease
pursuant to a Mortgage and the assignment of such leasehold interest to the
successful bidder at a foreclosure or similar sale (and to a subsequent third
party assignee by the Administrative Agent or any Lender to the extent the
Administrative Agent or such Lender is the successful bidder at such sale) in
the event of a foreclosure or similar action pursuant to such Mortgage. It is
understood that the foregoing shall apply to all leases, whether such lease is
an Operating Lease or a Capital Lease, and including any lease entered into in
connection with any Sale/Leaseback Transaction.
(d) Cash Management. The Borrower will, and will cause each of
the other Loan Parties, to establish and maintain with the Administrative Agent,
Bank of America, N.A. (or any of its Affiliates), or any Lender (or with other
banks that have entered into agreements with the Administrative Agent, in form
and substance satisfactory to the Administrative Agent, with respect to cash and
proceeds), cash management systems providing that all cash and proceeds of
accounts receivable and similar instruments collected by the Loan Parties in the
ordinary course of business are deposited with the Administrative Agent (or such
other banks) under arrangements permitting the creation and perfection of a
first priority security interest in all such cash and proceeds except to the
extent that the Administrative Agent otherwise consents (such consent not to be
unreasonably withheld). Without limiting the foregoing, the Borrower will, and
will cause each of the other Loan Parties to comply with the provisions set
forth on Schedule 5.13 hereto.
(e) Review of Real Property Assets. The Administrative Agent
may, from time to time, engage a third party, reasonably acceptable to the
Borrower, (i) to conduct a review
(64)
and evaluation relating to the Real Property Assets, including, without
limitation, MAI appraisals of the Real Property Assets, and/or (ii) to undertake
one Phase I environmental site assessment during the term of this Agreement of
the Real Property Assets (other than leasehold interests), provided that during
the continuance of any Event of Default, the Administrative Agent may undertake
such additional environmental site assessments as it deems reasonably necessary
in connection with the enforcement of its remedies. In that connection the
Borrower will, and will cause each of its Subsidiaries to, cooperate in all
respects with the Administrative Agent and such third parties to enable such
review, assessment and evaluation to be timely completed in a manner
satisfactory to the Administrative Agent and the Lenders and will not, and will
cause each of its Subsidiaries not to, cause such review, assessment and
evaluation to be hindered, impeded or delayed. Without limiting the foregoing or
SECTION 5.09, the Borrower will, and will cause each of its Subsidiaries to,
permit representatives designated by the Administrative Agent or such third
parties, upon reasonable prior notice, to visit and inspect its properties, to
examine and make extracts from its books and records, and to discuss the Real
Property Assets with its officers and any lessors of Real Property Assets, all
as often as reasonably requested. The cost of such review, assessment and
evaluation shall be borne by the Borrower. Without limiting the foregoing, the
Borrower acknowledges that the Administrative Agent may cause updated valuations
of the Real Property Assets to be undertaken by ▇▇▇▇▇ Realty, LLC or another
Person acceptable to the Borrower and the Administrative Agent generally
consistent in scope and methodology with the review and evaluation undertaken
prior to the Effective Date, provided that, as long as no Event of Default has
arisen and is continuing, such updated valuations shall occur no more frequently
than annually.
(f) New York Mortgages. As of the Effective Date, the
Mortgages covering the Mortgaged Property located in New York secure only
certain of the Obligations. In the event that the outstanding Credit Extensions
are equal to or greater than $225,000,000 for fifteen (15) consecutive Business
Days, upon the request of the Administrative Agent (or at the direction of the
Supermajority Lenders), the Loan Parties shall execute such documents as may be
reasonably necessary to amend such Mortgages in order that they secure all of
the Obligations.
SECTION 5.14 Physical Inventories. The Borrower, at its own expense,
shall cause (i) not less than one physical inventory to be undertaken in each
twelve (12) month period during which this Agreement is in effect, and (ii)
periodic cycle counts consistent with past practices to be undertaken, each of
the foregoing using practices consistent with practices in effect on the date
hereof. Upon the request of the Administrative Agent, the Borrower shall provide
the Administrative Agent with a reconciliation of the results of each such
inventory (and the Administrative Agent will furnish same to the Lenders).
ARTICLE VI
Negative Covenants
------------------
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have
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expired or terminated and all LC Disbursements shall have been reimbursed, the
Borrower covenants and agrees with the Lenders that:
SECTION 6.01 Indebtedness; Certain Equity Securities.
(a) Indebtedness. The Borrower will not, and will not permit
any Subsidiary (other than Special Purpose Subsidiaries) to, create, incur,
assume or permit to exist any Indebtedness, except that:
(i) the Borrower and the Subsidiaries may become and remain
liable with respect to the Obligations;
(ii) the Borrower may become and remain liable with respect to
Indebtedness to any Subsidiary Loan Party, and any Subsidiary may
become and remain liable with respect to Indebtedness to the Borrower
or any Subsidiary Loan Party, provided that (x) all such intercompany
Indebtedness shall be evidenced by promissory notes that are pledged to
the Administrative Agent pursuant to the terms of the Pledge Agreement,
(y) all such intercompany Indebtedness owed by the Borrower or any
Subsidiary Loan Party shall be subordinated in right of payment to the
payment in full of the Obligations pursuant to the terms of the
applicable promissory notes or an intercompany subordination agreement
and (z) any payment by any Subsidiary Loan Party under the Guarantee
Agreement shall result in a pro tanto reduction of the amount of any
intercompany Indebtedness owed by such Subsidiary to the Borrower or to
any of the Subsidiary Loan Parties for whose benefit such payment is
made;
(iii) the Borrower and the Subsidiaries, as applicable, may
remain liable with respect to Indebtedness described on Schedule 6.01;
(iv) the Borrower and its Subsidiaries may become and remain
liable with respect to Capital Lease Obligations (exclusive of Related
Store leases which are treated as Capital Lease Obligations) in an
amount not to exceed $50,000,000 in the aggregate after the Closing
Date, and may become and remain liable with respect to other
Indebtedness which is secured by Liens permitted under SECTION 6.02(d);
(v) the Borrower and the Subsidiaries may become and remain
liable with respect to Indebtedness incurred to refinance, in whole or
in part, any outstanding Indebtedness of the Borrower or any of the
Subsidiaries permitted under clause (iii) or (iv) of this Section or
any Indebtedness previously incurred pursuant to this clause (v), so
long as (A) such refinancing is effected upon Qualified Refinancing
Terms and (B) in the case of any such Indebtedness secured by Liens,
the conditions set forth in SECTION 6.02(e) are satisfied;
(vi) the Borrower and the Subsidiaries may become and remain
liable with respect to Indebtedness under Hedging Agreements permitted
under SECTION 6.07;
(vii) the Borrower and the Subsidiaries may become and remain
liable with respect to Indebtedness in respect of indemnification and
purchase price adjustment
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obligations incurred in connection with any sales of assets so long as
such indemnification and purchase price adjustment obligations are
customary in light of the type of sales of assets in connection with
which they were incurred;
(viii) the Borrower and the Subsidiaries may become and remain
liable with respect to Indebtedness under guarantees in the ordinary
course of business of the obligations of suppliers, customers,
franchisees and licensees of the Borrower and the Subsidiaries in an
aggregate amount not to exceed at any time $10,000,000;
(ix) the Borrower and the Subsidiaries may become and remain
liable with respect to Indebtedness under guarantees of trade credit
extended to Plainbridge in the ordinary course of business for the
purchase of goods by Plainbridge, as the case may be, for or on behalf
of the Borrower;
(x) the Borrower and any Subsidiary may remain and become
liable with respect to Indebtedness in respect of leasehold interests
assigned by the Borrower or such Subsidiary to any Person other than
the Borrower or any Subsidiary, provided that the Indebtedness in
respect of such leasehold interest was otherwise permitted hereunder
immediately prior to such assignment;
(xi) one or more Loan Parties may Guarantee Indebtedness of
one or more other Loan Parties provided that such Indebtedness is
otherwise permitted hereunder;
(xii) the Borrower may become and remain liable with respect
to the Initial Subordinated Indebtedness in an aggregate principal
amount not to exceed $350,000,000 at any time outstanding; and
(xiii) the Borrower and the Subsidiaries may become and remain
liable with respect to other unsecured Indebtedness in an aggregate
principal amount not to exceed $30,000,000 at any time outstanding.
(b) Certain Equity Securities. The Borrower will not, and it
will not permit any Subsidiary to, issue (or otherwise become liable with
respect to) any Cash-Pay Preferred Stock.
SECTION 6.02 Liens. The Borrower will not, and will not permit any
Subsidiary (other than Special Purpose Subsidiaries) to, create, incur, assume
or permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts
receivable) or rights in respect of any thereof, except:
(a) Permitted Encumbrances;
(b) Liens granted pursuant to the Security Documents;
(c) Liens described in Schedule 6.02;
(67)
(d) (i) Liens on Real Property Assets consisting of fee or
leasehold interests in Related Stores (whether fully constructed or
under construction), and Liens on Equipment (including rights of
vendors under purchase contracts whereby title is retained for the
purpose of securing the purchase price thereof), in each case securing
the purchase price and/or cost of construction or improvement thereof
or Indebtedness incurred to finance such purchase price and/or cost of
construction or improvement, (ii) Liens on Real Property Assets
consisting of fee or leasehold interests in Related Stores, and Liens
on Equipment (including rights of vendors under purchase contracts
whereby title is retained for the purpose of securing the purchase
price thereof), in each case which Liens were in existence at the time
of acquisition of such Real Property Assets or Equipment by the
Borrower or any Subsidiary and which secure any Indebtedness, and (iii)
Liens on Real Property Assets consisting of fee or leasehold interests
in Related Stores, and Liens on Equipment (including rights of vendors
under purchase contracts whereby title is retained for the purpose of
securing the purchase price thereof), that are owned by any Subsidiary
(other than any Subsidiary as of the Effective Date), in each case
which Liens were in existence at the time such Subsidiary became a
Subsidiary and which secure any Indebtedness; provided, however, that
in each case
(A) with respect to any such Lien described in clause
(i) above, no Event of Default shall have occurred and be
continuing at the time of incurrence of such Lien,
(B) with respect to any such Lien described in clause
(i) above, such Lien was granted and the Indebtedness secured
by such Lien was incurred during the Permitted Pending Lien
Period for the respective Real Property Assets or Equipment to
be subjected to such Lien,
(C) such Lien is limited to such Real Property Assets
or Equipment and any fixed improvements thereafter erected
thereon,
(D) with respect to any such Lien described in clause
(ii) or (iii) above, the Indebtedness secured by such Lien was
not incurred in contemplation of the acquisition by the
Borrower or any Subsidiary of the applicable Real Property
Assets or the transaction pursuant to which the applicable
Subsidiary became such a Subsidiary, as the case may be, and
(E) the principal amount of the Indebtedness secured
by such Lien (x) shall not exceed the cost of such property to
the Borrower or any Subsidiary and (y) shall not be less than
70% of the fair market value of such property at the time of
incurrence of such Indebtedness (in the case of any such Lien
described in clause (i) above that is secured by Real Property
Assets or Equipment), 40% of the fair market value of such
property at the time of acquisition of the applicable Real
Property Assets (in the case of any such Lien described in
clause (ii) above that is secured by Real Property Assets), or
40% of the fair market value of such property at the time when
the Subsidiary that owns the applicable Real Property
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Assets became a Subsidiary (in the case of any such Lien
described in clause (iii) above that is secured by Real
Property Assets);
(e) Liens securing Indebtedness of the Borrower or any
Subsidiary incurred to refinance, in whole or in part, any outstanding
Indebtedness of the Borrower or such Subsidiary that is secured by
Liens on Real Property Assets permitted under paragraph (c) or (d) of
this Section; provided, however, that in each case (x) the Liens
securing such refinancing Indebtedness are limited to the Real Property
Assets that were subject to the Liens securing the Indebtedness so
refinanced and (y) the principal amount of such refinancing
Indebtedness shall not be (A) less than 60% of the fair market value of
such Real Property Assets as of the date of such refinancing or (B)
unless such refinancing Indebtedness is Non-Recourse Indebtedness, in
an amount greater than 80% of the fair market value of such Real
Property Assets as of the date of such refinancing;
(f) Liens in favor of Amerisource Corporation (or any
replacement supplier of pharmaceutical related inventory) relating to
pharmacy-related inventory located in Related Stores and supplied to
the Borrower by Amerisource Corporation (or such replacement supplier);
(g) assignments or sales of income or revenues (including
accounts receivable) or rights in respect of any thereof, to the extent
permitted under SECTION 6.05; and
(h) other Liens securing Indebtedness or other obligations in
an aggregate amount not exceeding $10,000,000 at any time outstanding.
SECTION 6.03 Fundamental Changes.
(a) Mergers and Consolidations. The Borrower will not, and
will not permit any Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
liquidate or dissolve, except that, if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing (i) any
Subsidiary may merge into the Borrower in a transaction in which the Borrower is
the surviving corporation, (ii) any Subsidiary may merge into any Subsidiary
Loan Party in a transaction in which the surviving entity is a Subsidiary Loan
Party, (iii) any Subsidiary that is not a Loan Party may merge into any
Subsidiary that is not a Loan Party and (iv) any Subsidiary may liquidate or
dissolve if the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders, provided that any such merger involving a Person
that is not a wholly owned Subsidiary immediately prior to such merger shall not
be permitted unless such merger is also permitted by SECTION 6.04.
(b) Lines of Business. The Borrower will not, and will not
permit any Subsidiary to, engage to any material extent in any business other
than businesses of the type conducted by the Borrower and the Subsidiaries on
the date of execution of this Agreement and businesses reasonably related
thereto (including, without limitation, on-line retailing and e-commerce
businesses (to the extent they relate to businesses of the type conducted by the
Borrower and the Subsidiaries on the date of this Agreement)).
(69)
SECTION 6.04 Investments, Loans, Advances, Guarantees and Acquisitions.
The Borrower will not, and will not permit any Subsidiary to, purchase, hold or
acquire (including pursuant to any merger with any Person that was not a wholly
owned Subsidiary prior to such merger) any capital stock, evidences of
indebtedness or other securities (including any option, warrant or other right
to acquire any of the foregoing) of, make or permit to exist any loans or
advances to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person, or purchase or otherwise
acquire (in one transaction or a series of transactions) any assets of any other
Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments existing on the date hereof and set forth on
Schedule 6.04;
(c) purchases or acquisitions by the Borrower or any
Subsidiary Loan Party of assets from any Subsidiary Loan Party;
(d) investments by the Borrower and the Subsidiaries in the
Borrower and the Subsidiaries, provided that the amount of investments
by the Loan Parties in Subsidiaries that are not Loan Parties shall be
subject to the requirements set forth in the last sentence of this
Section;
(e) the Borrower and the Subsidiaries may make intercompany
loans to the extent permitted under SECTION 6.01(a)(ii), provided that
any such intercompany loans to Subsidiaries that are not Loan Parties
shall be subject to the requirements set forth in the last sentence of
this Section;
(f) Guarantees constituting Indebtedness permitted by SECTION
6.01, provided that the amount of Indebtedness that is (i) outstanding
with respect to Subsidiaries that are not Loan Parties and (ii)
Guaranteed by any Loan Party shall be subject to the requirements set
forth in the last sentence of this Section;
(g) Guarantees by one or more Loan Parties of the obligations
of one or more other Loan Parties to the extent such obligations are
permitted hereunder;
(h) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes
with, customers and suppliers, in each case in the ordinary course of
business;
(i) the Borrower and the Subsidiaries may make loans and
advances to employees in the ordinary course of business in an
aggregate amount not to exceed at any time outstanding $1,000,000;
(j) the Borrower and the Subsidiaries may make and own
investments in an aggregate amount not to exceed at any time
outstanding $10,000,000 consisting of any deferred portion of the sales
price (or any other non-cash consideration) received by the Borrower or
any Subsidiary in connection with any asset sale permitted under
SECTION 6.05;
(70)
(k) the Borrower and the Subsidiaries may make additional
investments to acquire or construct stores, provided that the aggregate
amount of all such investments made pursuant to this paragraph (k)
after the Effective Date shall not exceed $20,000,000;
(l) the Borrower and its Subsidiaries may make Permitted
Acquisitions; and
(m) the Borrower and the Subsidiaries may make and own other
investments in an aggregate amount not to exceed at any time
outstanding $30,000,000, provided that (i) interest and dividends
accreted, accrued or paid-in-kind on instruments or securities of
another Person held or owned by the Borrower or a Subsidiary shall not
increase the aggregate amount deemed invested by the Borrower or such
Subsidiary in such instruments or securities and outstanding for
purposes of this SECTION 6.04(m)) and (ii) the aggregate amount of such
investments in joint ventures or minority interests shall not exceed
$10,000,000.
Anything in clauses (d), (e) and (f) above to the contrary notwithstanding, (A)
the aggregate amount of investments under clause (d), intercompany loans under
clause (e) and Guarantees under clause (f) above that are made or advanced to or
for the benefit of Subsidiaries that are not Loan Parties shall not exceed in
the aggregate $5,000,000 at any one time outstanding and (B) none of the
Borrower nor any of the Subsidiaries will enter into any Guarantees of any
obligations (whether or not such obligations constitute Indebtedness) except to
the extent permitted under this SECTION 6.04 and SECTION 6.01.
SECTION 6.05 Asset Sales. The Borrower will not, and will not permit
any Subsidiary to, sell, transfer, lease or otherwise dispose of any asset,
including any capital stock, nor will the Borrower permit any Subsidiary to
issue any additional shares of its capital stock or other ownership interest in
such Subsidiary, except for the following:
(a) sales of (i) inventory, (ii) used, worn-out, obsolete or
surplus equipment and (iii) Permitted Investments, in each case in the
ordinary course of business;
(b) sales, transfers and dispositions to the Borrower or a
Subsidiary Loan Party;
(c) the Borrower and the Subsidiaries may make Asset Sales,
provided that the aggregate fair market value of the assets (including,
without limitation, leasehold interests, goodwill and other intangible
assets) sold pursuant to Asset Sales (other than Excluded Asset Sales
and Replacement Store Sales) after the Effective Date shall not exceed
$135,000,000 in the aggregate and provided further that (i) the
consideration received for the related assets shall be in an amount at
least equal to (A) the fair market value thereof (taking into account
any restrictions on the use of such related assets that the Borrower or
any such Subsidiary may require in connection with the asset sale in
question) or (B) a lower amount if the Board of Directors of the
Borrower or such Subsidiary, as the case may be, shall determine in
good faith that the sale of such related assets for such lower amount
is desirable in order to minimize losses being incurred by the Borrower
or such Subsidiary, as the case may be, with respect to such related
assets
(71)
and that such sale for such lower amount is in the best interest of the
Borrower or such Subsidiary, as the case may be; (ii) at least 80% of
the consideration received (excluding any non-cash consideration
received in connection with the exchange of assets of the Borrower or
any Subsidiary for similar assets of any third party) for the related
assets shall be cash (provided that the Borrower and its Subsidiaries
may assign leasehold interests without regard to the condition set
forth in this clause (ii) as long as the Average Liquidation Value of
the remaining Mortgaged Properties after giving effect to such
assignment is equal to or greater than $275,000,000); (iii) after
giving effect to such transaction, the Borrower shall be in compliance
with SECTION 6.04; and (iv) the Net Proceeds of such Asset Sales shall
be applied in the manner and to the extent required by SECTION 2.12;
(d) the Borrower and the Subsidiaries may enter into Asset
Swaps, provided that the aggregate fair market value of the stores or
facilities transferred by the Borrower and the Subsidiaries pursuant to
Asset Swaps in any Fiscal Year shall not exceed $45,000,000 and
provided further that (i) any cash received by the Borrower and the
Subsidiaries in connection with any Asset Swap shall be treated as the
proceeds of an Asset Sale for purposes of SECTION 2.12, and (ii) any
cash paid by the Borrower and the Subsidiaries shall be treated as Cash
Capital Expenditures for purposes of SECTION 6.15;
(e) the Borrower and the Subsidiaries may, as lessor or
sub-lessor, lease or sub-lease any Real Property Assets in the ordinary
course of business as long as such lease or sub-lease does not have a
Material Adverse Effect;
(f) the Borrower or any Subsidiary may, in the ordinary course
of business, terminate any lease to which it is a party as long as the
Average Liquidation Value of the remaining Mortgaged Properties after
giving effect to such termination is equal to or greater than
$275,000,000;
(g) the Borrower or any Subsidiary may make Excluded Asset
Sales;
(h) the Borrower and the Subsidiaries may enter into any
Qualified Sale/Leaseback Transaction permitted under SECTION 6.06; and
(i) the Borrower and the Subsidiaries may make Restricted
Payments to the extent permitted by SECTION 6.08.
provided that if a Default or Event of Default then exists or would arise
therefrom, sales and dispositions described in this clauses (b) through (i) of
this SECTION 6.05 shall be prohibited without the consent of the Required
Lenders.
SECTION 6.06 Sale/Leaseback Transactions. The Borrower will not, and
will not permit any of the Subsidiaries (including any Special Purpose
Subsidiary) to, enter into any arrangement (a "Sale/Leaseback Transaction"),
directly or indirectly, with any person whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now
(72)
owned or hereafter acquired, and thereafter rent or lease such property or other
property that it intends to use for substantially the same purpose or purposes
as the property being sold or transferred, provided that the Borrower and the
Subsidiaries may enter into any Qualified Sale/Leaseback Transaction.
SECTION 6.07 Hedging Agreements. The Borrower will not, and will not
permit any of the Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities.
SECTION 6.08 Restricted Payments. The Borrower will not, and it will
not permit any Subsidiary to, declare or make, or agree to pay or make, directly
or indirectly, any Restricted Payment, except:
(a) the Borrower may declare and pay dividends with respect to
its capital stock payable solely in additional shares of its common
stock;
(b) the Borrower's Subsidiaries may declare and pay dividends
ratably with respect to their capital stock;
(c) the Borrower may make Restricted Payments in respect of
shares of stock, or options, issued to employees pursuant to its
Employee Stock Option Plan, so long as the aggregate amount thereof
made during any Fiscal Year shall not exceed $3,500,000;
(d) the Borrower may make Restricted Payments on account of
the purchase or redemption of any shares of capital stock of the
Borrower (other than Preferred Stock), so long as each of the Payment
Conditions is satisfied.
SECTION 6.09 Transactions with Affiliates. The Borrower will not, and
it will not permit any Subsidiary to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) transactions that are at prices and on terms and
conditions not less favorable to the Borrower or such Subsidiary than could be
obtained on an arm's-length basis from unrelated third parties, (b) transactions
between or among the Borrower and the Subsidiary Loan Parties, (c) any
Restricted Payment permitted by SECTION 6.08 or (d) reasonable and customary
fees paid to members of the Boards of Directors of the Borrower and the
Subsidiaries, it being the intent of this Section that transactions between any
Loan Party and any Subsidiary that is not a Loan Party shall be required to
satisfy the requirements of the foregoing clause (a).
SECTION 6.10 Restrictive Agreements. The Borrower will not, and it will
not permit any Subsidiary to, directly or indirectly, enter into, incur or
(except for preexisting agreements or arrangements applicable to (A) a property
at the time of its acquisition not incurred in contemplation of the acquisition
of such property, or (B) the property of a Subsidiary at the time of such
Subsidiary's acquisition not incurred in contemplation of such acquisition)
permit to
(73)
exist any agreement or other arrangement that prohibits, restricts or imposes
any condition upon (a) the ability of the Borrower or any Subsidiary to create,
incur or permit to exist any Lien upon any of its property or assets, or (b) the
ability of any Subsidiary to pay dividends or other distributions with respect
to any shares of its capital stock or to make or repay loans or advances to the
Borrower or any other Subsidiary or to guarantee Indebtedness of the Borrower or
any other Subsidiary, provided that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or by any Loan Document, (ii) the
foregoing shall not apply to restrictions and conditions existing on the date
hereof identified on Schedule 6.10 (but shall apply to any amendment or
modification expanding the scope of any such restriction or condition), (iii)
the foregoing shall not apply to customary restrictions and conditions contained
in agreements relating to the sale of a Subsidiary pending such sale, provided
such restrictions and conditions apply only to the Subsidiary that is to be sold
and such sale is permitted hereunder, (iv) the foregoing shall not apply to
Special Purpose Subsidiaries, (v) clause (a) of the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness and (vi) clause
(a) of the foregoing shall not apply to customary provisions in leases or
licenses restricting the assignment thereof.
SECTION 6.11 Amendment of Material Documents.
(a) The Borrower will not, and it will not permit any
Subsidiary to, amend, modify or waive any of its rights under its certificate of
incorporation, by-laws or other organizational documents, or the Employee Stock
Option Plan, in each case in any manner that would be reasonably likely to
result in a Material Adverse Effect.
(b) Neither the Borrower nor any of its Subsidiaries will
consent to any modification, supplement or waiver of any of the provisions of
the Initial Subordinated Indebtedness if any such modification, supplement or
waiver would render such Subordinated Indebtedness no longer compliant with the
following provisions of this SECTION 6.11 without the prior written consent of
the Required Lenders:
(i) the subordination provisions under the Indenture relating
to the Initial Subordinated Indebtedness shall remain as in effect on
the Effective Date;
(ii) the terms of such Indebtedness shall not be amended to
provide for scheduled amortization of any portion of the principal
thereof prior to the date six months after the final maturity of the
Loans hereunder, it being understood that asset sale offers and change
of control offers are not deemed scheduled amortization;
(iii) any amendment to financial and other covenants, events
of default and mandatory prepayments applicable to such Indebtedness
shall be on terms that are at the time customary in the market for
subordinated debt being incurred by borrowers, and in transactions, for
Persons comparable to the Borrower;
(iv) any such amendment shall not contain any provision
permitting the maturity of such Indebtedness to be accelerated upon the
occurrence of a Default or Event
(74)
of Default hereunder (but may contain a provision permitting
acceleration of such Indebtedness upon the acceleration of the Loans
hereunder or upon the failure of the Borrower to make a principal
payment at final maturity of the Loans hereunder);
(v) any such amendment to the terms and conditions of such
Indebtedness shall contain financial covenants which are no more
restrictive to the Loan Parties than the covenants in this Agreement
and other covenants which, when taken as a whole, are no more
restrictive to the Loan Parties than the covenants in this Agreement;
and
(vi) at the time of such amendment, and after giving effect
thereto, no Default or Event of Default shall have occurred and be
continuing hereunder and the Borrower shall have delivered to the
Administrative Agent a certificate of a Financial Officer to such
effect.
SECTION 6.12 Sale or Discount of Receivables. The Borrower shall not,
and shall not permit any Subsidiary to, directly or indirectly, sell with
recourse, or discount or otherwise sell for less than the face value thereof,
any of its notes or accounts receivable other than any Excluded Asset Sale
permitted pursuant to SECTION 6.05.
SECTION 6.13 Fiscal Year. The Borrower shall not change the last day of
its Fiscal Year from the Saturday closest to January 31.
SECTION 6.14 Initial Subordinated Indebtedness. The Borrower will not
at any time, and will not permit any Subsidiary to make or agree to pay or make,
directly or indirectly, any payment or other distribution (whether in cash
securities or other property) of or in respect of principal of or interest on
any Initial Subordinated Indebtedness, or any payment or other distribution
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any Initial Subordinated
Indebtedness, except:
(a) Unless, after the occurrence and during the continuance of
an Event of Default, the Administrative Agent and the Lenders have
exercised their rights under the Indenture relating to the Initial
Subordinated Indebtedness to prohibit such payments, payment of
regularly scheduled interest payments as and when due in respect of any
Initial Subordinated Indebtedness;
(b) as long as each of the Payment Conditions is satisfied,
payment of principal in respect of any Initial Subordinated
Indebtedness; or
(c) refinancings of Indebtedness described above, to the
extent permitted by SECTION 6.01.
SECTION 6.15 Cash Capital Expenditures. The Borrower will not permit
the aggregate amount of Cash Capital Expenditures made by the Borrower and the
Subsidiaries in any Fiscal Year to exceed $110,000,000. The amount of permitted
Cash Capital Expenditures in respect of any Fiscal Year shall be increased by
the lesser of (a) the amount of unused Cash Capital Expenditures for the
immediately preceding Fiscal Year (less an amount equal to any
(75)
unused Cash Capital Expenditures carried forward to such preceding Fiscal Year)
and (b) $20,000,000; provided that in no event shall the amount of permitted
Cash Capital Expenditures exceed $130,000,000 in any Fiscal Year.
SECTION 6.16 Minimum Inventory. The Borrower will maintain Inventory
(as defined in the Security Agreement) in an amount not less than $150,000,000
(determined in accordance with GAAP) at all times.
SECTION 6.17 Minimum Consolidated EBITDA. The Borrower will not permit
Consolidated EBITDA of the Borrower and the Subsidiaries for any
four-fiscal-quarter period to be less than $135,000,000.
ARTICLE VII
Events of Default
-----------------
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan
or any reimbursement obligation in respect of any LC Disbursement when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable under this Agreement or any other Loan
Document, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or
on behalf of any Loan Party in any Loan Document or any amendment or
modification thereof or waiver thereunder or any representation or
warranty made in writing by the Borrower or any Subsidiary Loan Party
in any report, certificate, financial statement or other document
furnished pursuant to or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, shall prove to
have been incorrect in any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in SECTION 5.02, SECTION
5.04 (with respect to the existence of the Borrower) or SECTION 5.11 or
in Article VI;
(e) any Loan Party shall fail to observe or perform any
covenant, condition or agreement contained in any Loan Document (other
than those specified in clause (a), (b) or (d) of this Article), and
such failure shall continue unremedied for a period of 30 days after
notice thereof from the Administrative Agent to the Borrower (which
notice will be given at the request of any Lender);
(76)
(f) the Borrower or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, when and as the same shall become
due and payable (after giving effect to any applicable grace period);
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (after giving effect to any applicable grace period)
the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to
become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity, provided that this
clause (g) shall not apply to secured Indebtedness that becomes due as
a result of the voluntary sale or transfer of the property or assets
securing such Indebtedness to the extent such sale or transfer is
permitted pursuant to the terms hereof;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any
Subsidiary or its debts, or of a substantial part of its assets, under
any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect or (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any Subsidiary or for a substantial part
of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary or
for a substantial part of its assets, (iv) make a general assignment
for the benefit of creditors or (v) by action of its board of
directors, take any action for the purpose of effecting any of the
foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit
in writing its inability or fail generally to pay its debts as they
become due;
(k) one or more (to the extent not adequately covered by
insurance, so long as a claim has been submitted to a solvent and
unaffiliated insurance company and such insurance company has not
disputed coverage) judgments for the payment of money in an aggregate
amount in excess of $10,000,000 shall be rendered against the Borrower,
any Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 60 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to attach or levy upon any assets of the
Borrower or any Subsidiary to enforce any such judgment;
(77)
(l) an ERISA Event shall have occurred that when taken
together with all other ERISA Events that have occurred, could
reasonably be expected to result in liability of the Borrower and the
Subsidiaries in an aggregate amount exceeding $10,000,000 for all
periods;
(m) any Lien purported to be created under any Security
Document with respect to any material portion of the Collateral shall
cease to be, or shall be asserted by any Loan Party not to be, a valid
and perfected Lien on any such material portion of the Collateral, with
the priority required by the applicable Security Document, except (i)
as a result of the sale or other disposition of the applicable
Collateral in a transaction permitted under the Loan Documents or (ii)
as a result of the Administrative Agent's (A) failure to maintain
possession of any stock certificates, promissory notes or other
instruments delivered to it under the Pledge Agreement or (B) failure
to take any other action required to be taken on its part to maintain
the validity and perfection of such Liens; or the enforceability of any
Guarantee Agreement shall be contested by any Loan Party;
(n) a Change in Control shall occur; or
(o) there shall have been asserted against any Borrower or any
of the Subsidiaries any Environmental Liability that, in the judgment
of the Required Lenders is reasonably likely to be determined adversely
to such Borrower or any of the Subsidiaries, and the amount thereof
(either individually or in the aggregate) could reasonably be expected
to result in liability of the Borrower and the Subsidiaries in an
aggregate amount exceeding $10,000,000 (but after deducting any portion
thereof that is reasonably expected to be paid by other creditworthy
Persons jointly and severally liable therefor);
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
(78)
ARTICLE VIII
The Administrative Agent
------------------------
Each of the Lenders and the Issuing Banks hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in SECTION 9.02), and (c) except as
expressly set forth in the Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrower or any of the Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in SECTION 9.02) or in the
absence of its own gross negligence or wilful misconduct. The Administrative
Agent shall not be deemed to have knowledge of any Default unless and until
written notice thereof is given to the Administrative Agent by the Borrower or a
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Loan Document, (iv) the
validity, enforceability, effectiveness or genuineness of any Loan Document or
any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere in any Loan Document, other than
to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person.
(79)
The Administrative Agent also may rely upon any statement made to it orally or
by telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of each Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders, the Issuing Banks and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Banks, appoint a successor Administrative Agent that shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and SECTION 9.03 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while it was acting as Administrative
Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
Neither the Syndication Agent or Co-Documentation Agents, in their
capacity as such, shall have any obligation, responsibility or required
performance hereunder and shall not become
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liable in any manner to any party hereto. No party shall have any obligation or
liability, or owe any performance, hereunder, to the Syndication Agent or
Co-Documentation Agents in their capacity as such.
ARTICLE IX
Miscellaneous
-------------
SECTION 9.01 Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇, President and Chief
Financial Officer (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy under
separate cover to ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Senior Vice President and General
Counsel (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to the Administrative Agent or the Swingline Lender, to
Fleet Retail Group, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention of ▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(c) if to Bank of America, N.A., in its capacity as an Issuing
Bank, to Bank of America, N.A. , ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention of ▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), and if to
any other Lender in its capacity as an Issuing Bank, to such Lender at
its address (or telecopy number) set forth in its Administrative
Questionnaire; and
(d) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02 Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No failure or
delay by the Administrative Agent, any Issuing Bank or any Lender in exercising
any right or power hereunder or under any other Loan Document shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Administrative Agent, the
Issuing Banks and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of any Loan Document or consent to
any departure by any Loan Party therefrom
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shall in any event be effective unless the same shall be permitted by paragraph
(b) of this Section, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan or issuance of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of whether
the Administrative Agent, any Lender or Issuing Bank may have had notice or
knowledge of such Default at the time.
(b) Amendments. Neither this Agreement nor any other Loan
Document nor any provision hereof or thereof may be waived, amended or modified
except, in the case of this Agreement, pursuant to an agreement or agreements in
writing entered into by the Borrower and the Required Lenders or, in the case of
this or any other Loan Document, pursuant to an agreement or agreements in
writing entered into by the Administrative Agent and the Loan Party or Loan
Parties that are parties thereto, in each case with the consent of the Required
Lenders, provided that no such agreement shall
(i) increase the Commitment of any Lender without the written
consent of such Lender or increase the total Commitments without the
consent of all of the Lenders,
(ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the stated rate of interest thereon, or reduce
any fees payable hereunder, without the written consent of each Lender
affected thereby,
(iii) postpone the scheduled date of payment of the principal
amount of any Loan or LC Disbursement, or any interest thereon, or any
fees payable hereunder, or reduce the amount of, waive or excuse any
such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected
thereby,
(iv) change SECTION 2.19(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the
written consent of each Lender,
(v) change any of the provisions of this Section or the
definition of the term "Required Lenders" or any other provision of any
Loan Document specifying the number or percentage of Lenders (or
Lenders of any Class) required to waive, amend or modify any rights
thereunder or make any determination or grant any consent thereunder,
without the written consent of each Lender (or each Lender of such
Class, as the case may be),
(vi) release all or any material portion of the Subsidiary
Loan Parties from their Guarantee under the Guarantee Agreement (except
as expressly provided in the Guarantee Agreement), or limit the
liability of all or substantially all of the Subsidiary Loan Parties in
respect of such Guarantee, without the written consent of each Lender,
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(vii) release all or substantially all of the Collateral from
the Liens of the Security Documents (except as expressly set forth in
the Security Documents), without the written consent of each Lender,
(viii) change any provisions of any Loan Document in a manner
that by its terms adversely affects the rights in respect of payments
due to Lenders holding Loans of any Class differently than those
holding Loans of any other Class, without the written consent of
Lenders holding a majority in interest of the outstanding Loans and
unused Commitments of each affected Class,
and provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, any Issuing Bank or the
Swingline Lender without the prior written consent of the Administrative Agent,
such Issuing Bank or the Swingline Lender, as the case may be.
Anything herein to the contrary notwithstanding, no consent of the
Lenders shall be required for the Administrative Agent to release any Guarantee
of any Subsidiary Loan Party, or to release any property from the Lien of any
Security Document (and the Administrative Agent is hereby authorized by the
Lenders to effect such release), to the extent that such Subsidiary Loan Party
or such property is the subject of a sale permitted hereunder (or to which the
Required Lenders shall have consented), and no consent of the Lenders shall be
required for the Administrative Agent to release any property from the Lien of
any Security Document (and the Administrative Agent is hereby authorized by the
Lenders to effect such release) to the extent that such property is to be
covered by a Lien permitted under clauses (d) or (e) of SECTION 6.02.
SECTION 9.03 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates (including internally-allocated expenses of the Administrative Agent
and its Affiliates), including (A) expenses incurred in connection with due
diligence and (B) the reasonable fees, charges and disbursements of counsel for
the Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation, execution, delivery and
administration of the Loan Documents or any amendments, modifications or waivers
of the provisions thereof (whether or not the transactions contemplated hereby
or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by each Issuing Bank in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment
thereunder, (iii) all out-of-pocket expenses incurred by the Administrative
Agent, any Issuing Bank or any Lender, including the reasonable fees, charges
and disbursements of any counsel for the Administrative Agent, any Issuing Bank
or any Lender, in connection with the enforcement of its rights under the Loan
Documents, including its rights under this Section, including all such
out-of-pocket expenses incurred during any workout or restructuring in respect
of such Loans or Letters of Credit and (iv) all costs, expenses, taxes,
assessments and other charges incurred in connection with any filing,
registration, recording or perfection of any security interest contemplated by
any Security Document or any other document referred to therein.
(83)
(b) Indemnification by Borrower. The Borrower shall indemnify
the Administrative Agent, each Issuing Bank and each Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the
reasonable fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of any Loan Document or
any other agreement or instrument contemplated hereby, the performance by the
parties to the Loan Documents of their respective obligations thereunder or the
consummation of the Financing Transactions or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by any Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or Release of Hazardous Materials
on or from any Mortgaged Property or any other property currently or formerly
owned or operated by the Borrower or any of the Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of the
Subsidiaries, except to the extent any such actual or alleged presence or
Release of Hazardous Materials, or conditions giving rise to such Environmental
Liability, originate after an Indemnitee has taken possession or control of such
property, or (iv) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory and regardless of whether any Indemnitee is a party thereto,
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
resulted from the gross negligence or wilful misconduct of such Indemnitee or
any Affiliate of such Indemnitee (or of any officer, director, employee, advisor
or agent of such Indemnitee or any of such Indemnitee's Affiliates).
(c) Reimbursement by Lenders. To the extent that the Borrower
fails to pay any amount required to be paid by it to the Administrative Agent,
any Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, such Issuing Bank or the Swingline Lender in
its capacity as such.
(d) Waiver of Consequential Damages, Etc. To the extent
permitted by applicable law, the Borrower shall not assert, and hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement
or any agreement or instrument contemplated hereby, the Financing Transactions,
any Loan or Letter of Credit or the use of the proceeds thereof.
(e) Payments. All amounts due under this Section shall be
payable promptly after written demand therefor.
(84)
SECTION 9.04 Successors and Assigns.
(a) Assignments Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Affiliate of
an Issuing Bank that issues any Letter of Credit), except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby (including any Affiliate of an Issuing Bank that issues
any Letter of Credit) and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent, such Issuing Bank and the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Assignments by Lenders. Any Lender may assign to one or
more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at the
time owing to it) to other Lenders, their Affiliates, a Related Fund of the
assigning Lender or another Lender or to any Federal Reserve Bank without
restriction, to other financial institutions or to any entity that is regularly
engaged in making, purchasing or investing in loans or securities with the
consent of the Borrower (subject to the final proviso hereto) and the
Administrative Agent, in each case not to be unreasonably withheld, provided
that
(i) except in the case of an assignment to a Lender, an
Affiliate of a Lender or a Related Fund of the assigning Lender or
another Lender in circumstances where the Borrower would not incur
increased costs as a result of such assignment, each of the Borrower
and the Administrative Agent (and, in the case of an assignment of all
or a portion of a Revolving Commitment or any Lender's obligations in
respect of its LC Exposure or Swingline Exposure, each Issuing Bank and
the Swingline Lender) must give their prior written consent to such
assignment (which consent shall not be unreasonably withheld),
(ii) except in the case of an assignment to a Lender, an
Affiliate of a Lender or a Related Fund of the assigning Lender or
another Lender, or an assignment of the entire remaining amount of the
assigning Lender's Commitment or Loans, the amount of the Commitment or
Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000 (in the case of any such assignment of
Revolving Loans or Revolving Commitments or Term Loans or Term Loan
Commitments), unless each of the Borrower and the Administrative Agent
otherwise consent,
(iii) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and
obligations under each of the
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Revolving Loans, Revolving Commitment, the Term Loans and the Term Loan
Commitments,
(iv) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500, and
(v) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire,
and provided further that any consent of the Borrower otherwise required under
this paragraph shall not be required if an Event of Default has occurred and is
continuing.
Subject to acceptance and recording thereof pursuant to paragraph (d)
of this Section, from and after the effective date specified in each Assignment
and Acceptance the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of SECTION
2.16, SECTION 2.17, SECTION 2.18 and SECTION 9.03). Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply
with this paragraph shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
(c) Maintenance of Register by Administrative Agent. The
Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices in Boston, Massachusetts a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitment of, and principal
amount of the Loans and LC Disbursements owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register
shall be conclusive, and the Borrower, the Administrative Agent, the Issuing
Banks 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 Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, any Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Effectiveness of Assignments. Upon its receipt of a duly
completed Assignment and Acceptance executed by an assigning Lender and an
assignee, the assignee's completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent
shall accept such Assignment and Acceptance and record the information contained
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therein in the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(e) Participations. Any Lender may, without the consent of the
Borrower, the Administrative Agent, each Issuing Bank or the Swingline Lender,
sell participations to one or more banks or other entities (a "Participant") in
all or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it),
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, each Issuing Bank and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce the Loan Documents and to approve
any amendment, modification or waiver of any provision of the Loan Documents,
provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to SECTION 9.02(b) that
affects such Participant. Subject to paragraph (f) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of SECTION 2.16,
SECTION 2.17 and SECTION 2.18 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of SECTION 9.08 as though it were a Lender, provided such Participant
agrees to be subject to SECTION 2.19(c) as though it were a Lender.
(f) Limitations on Rights of Participants. A Participant shall
not be entitled to receive any greater payment under SECTION 2.16 or SECTION
2.17 than the applicable Lender would have been entitled to receive with respect
to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower's prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of SECTION 2.18 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with SECTION 2.18(e) as though it were a
Lender.
(g) Certain Pledges. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section
shall not apply to any such pledge or assignment of a security interest,
provided that no such pledge or assignment of a security interest shall release
a Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
SECTION 9.05 Survival. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of
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Credit, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent, the applicable Issuing
Bank or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
SECTION 2.16, SECTION 2.17, SECTION 2.18 and SECTION 9.03 and Article VIII shall
survive and remain in full force and effect regardless of the consummation of
the transactions contemplated hereby, the repayment of the Loans, the expiration
or termination of the Letters of Credit and the Commitments or the termination
of this Agreement or any provision hereof.
SECTION 9.06 Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in SECTION 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07 Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08 Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured and regardless of the adequacy of the
Collateral. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff) that such Lender
may have.
(88)
SECTION 9.09 Governing Law; Jurisdiction; Consent to Service of
Process.
(a) Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. The Borrower hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to any Loan Document, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State or, to
the extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent, any Issuing Bank
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement or any other Loan Document against the Borrower or its properties
in the courts of any jurisdiction.
(c) Waiver of Venue. The Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any other Loan Document in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(d) Service of Process. Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices in
SECTION 9.01. Nothing in this Agreement or any other Loan Document will affect
the right of any party to this Agreement to serve process in any other manner
permitted by law.
SECTION 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
(89)
SECTION 9.11 Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12 Confidentiality. Each of the Administrative Agent, the
Issuing Banks and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, trustees, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to any direct or indirect contractual counterparty in swap
agreements (or to such contractual counterparty's professional advisor), so long
as such contractual counterparty (or such professional advisor) agrees to be
bound by the provisions of this SECTION 9.12, (c) to the National Association of
Insurance Commissioners or any similar organization or any nationally recognized
rating agency that requires access to information about a Lender's investment
portfolio in connection with the ratings issued with respect to such Lender, (d)
to the extent requested by any regulatory authority, (e) to the extent required
by applicable laws or regulations or by any subpoena or similar legal process,
(f) to any other party to this Agreement, (g) in connection with the exercise of
any remedies hereunder or any suit, action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (h) subject to an agreement containing provisions substantially the
same as those of this Section, to any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement, (i) with the consent of the Borrower or (j) to the extent
such Information (i) becomes publicly available other than as a result of a
breach of this Section or (ii) becomes available to the Administrative Agent,
any Issuing Bank or any Lender on a nonconfidential basis from a source other
than the Borrower. For the purposes of this Section, "Information" means all
information received from the Borrower relating to the Borrower or its business,
other than any such information that is available to the Administrative Agent,
any Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by
the Borrower, provided that, in the case of information received from the
Borrower after the date hereof, such information is clearly identified at the
time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
SECTION 9.13 Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts that are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") that may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be
(90)
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date
of repayment, shall have been received by such Lender.
SECTION 9.14 Designated Senior Indebtedness. The Borrower and other
Loan Parties acknowledge and agree that the Obligations constitute Designated
Senior Indebtedness under the Indenture evidencing the Initial Subordinated
Indebtedness.
SECTION 9.15 Existing Credit Agreement Amended and Restated. This
Agreement shall amend and restate the Existing Credit Agreement in its entirety.
On the Effective Date, the rights and obligations of the parties under the
Existing Credit Agreement shall be subsumed within and be governed by this
Agreement; provided, however, that each of the "Loans" (as such term is defined
in the Existing Credit Agreement) outstanding under the Existing Credit
Agreement on the Effective Date shall, for purposes of this Agreement, be
included as Loans hereunder and each of the "Letters of Credit" (as defined in
the Existing Credit Agreement) outstanding under the Existing Credit Agreement
on the Effective Date shall be Letters of Credit hereunder.
(91)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
PATHMARK STORES, INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Senior Vice President
(92)
FLEET RETAIL GROUP, INC., individually,
as Administrative Agent and as
Collateral Agent
By /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title: Managing Director
(93)
GMAC COMMERCIAL FINANCE LLC,
individually, and as co-Documentation
Agent
By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: Vice President
(94)
GENERAL ELECTRIC CAPITAL CORPORATION,
individually, and as co-Documentation
Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Title: Duly Authorized Signatory
(95)
THE CIT GROUP/BUSINESS CREDIT, INC.,
Individually, and as Syndication Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Title: Assistant Vice President
(96)
▇▇▇▇▇ FARGO FOOTHILL, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
(97)