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EXHIBIT 4.04
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CSK AUTO, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of December 8, 1997
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$300,000,000
Credit Facility
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THE CHASE MANHATTAN BANK,
as Administrative Agent,
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
as Documentation Agent,
and
CHASE SECURITIES INC.,
as Arranger
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2. TERM LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.1 Term Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.2 Repayment of Term Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.3 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 3. AMOUNT AND TERMS OF REVOLVING
CREDIT COMMITMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.1 Revolving Credit Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.2 Commitment Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.3 Proceeds of Revolving Credit Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.4 Swing Line Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.5 Issuance of Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.6 Participating Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.7 Procedure for Opening Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.8 Payments in Respect of Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.9 Letter of Credit Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.10 Letter of Credit Reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.11 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.12 Obligations Absolute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.13 Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.14 Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
4.1 Procedure for Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
4.2 Conversion and Continuation Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.3 Changes of Commitment Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.4 Optional and Mandatory Prepayments; Repayments of Term Loans . . . . . . . . . . . . . . . . . . . 31
4.5 Interest Rates and Payment Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.6 Computation of Interest and Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.7 Certain Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.8 Inability to Determine Interest Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.9 Pro Rata Treatment and Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
4.10 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.11 Requirements of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.12 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
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4.13 Repayment of Loans; Evidence of Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
4.14 Replacement of Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 5. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
5.1 Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.2 No Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
5.3 Corporate Existence; Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
5.4 Corporate Power; Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
5.5 Enforceable Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.6 No Legal Bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.7 No Material Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
5.8 Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
5.9 Federal Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
5.10 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
5.11 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
5.12 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
5.13 Ownership of Property; Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
5.14 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
5.15 Collateral Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
5.16 Copyrights, Permits, Trademarks and Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
5.17 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
5.18 Accuracy and Completeness of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 6. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.1 Conditions to Initial Loans and Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.2 Conditions to All Loans and Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 7. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.1 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.2 Certificates; Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.3 Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.4 Conduct of Business and Maintenance of Existence . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.5 Maintenance of Property; Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.6 Inspection of Property; Books and Records; Discussions . . . . . . . . . . . . . . . . . . . . . . 58
7.7 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
7.8 Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 8. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
8.1 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
8.2 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
8.3 Limitation on Contingent Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
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8.4 Prohibition of Fundamental Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.5 Prohibition on Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.6 Limitation on Investments, Loans and Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
8.7 Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
8.8 Consolidated EBITDA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
8.9 Debt to EBITDA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
8.10 Interest Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
8.11 Limitation on Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
8.12 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
8.13 Prepayments and Amendments of Permanent Subordinated Debt. . . . . . . . . . . . . . . . . . . . . 72
8.14 Limitation on Changes in Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
8.15 Limitation on Lines of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 9. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 10. THE ADMINISTRATIVE AGENT; THE ISSUING LENDER . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.2 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.3 Exculpatory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.4 Reliance by Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
10.5 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
10.6 Non-Reliance on Administrative Agent and Other Lenders . . . . . . . . . . . . . . . . . . . . . . 77
10.7 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
10.8 The Administrative Agent in its Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . 78
10.9 Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
10.10 Issuing Lender as Issuer of Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
11.1 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
11.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
11.3 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
11.4 Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
11.5 Payment of Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
11.6 Successors and Assigns; Participations and Assignments . . . . . . . . . . . . . . . . . . . . . . 83
11.7 Adjustments; Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
11.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
11.9 Governing Law; No Third Party Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
11.10 Submission to Jurisdiction; Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
11.11 Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
11.12 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
11.13 Special Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
11.14 Permitted Payments and Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
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ANNEX A Pricing Grid
SCHEDULES
Schedule I List of Addresses for Notices; Lending Offices; Commitment
Amounts
Schedule 3.5(c) Letters of Credit
Schedule 5.12 Subsidiaries
Schedule 5.13 Fee and Leased Properties
Schedule 5.15(b) UCC Filing Offices
Schedule 5.16 Trademarks and Copyrights
Schedule 8.1(a) Indebtedness to Remain Outstanding
Schedule 8.2 Existing Liens
Schedule 8.3(d) Existing Contingent Obligations
EXHIBITS
EXHIBIT A Form of Revolving Credit Note
EXHIBIT B Form of Term Loan Note
EXHIBIT C Form of Swing Line Note
EXHIBIT D Form of Assignment and Acceptance
EXHIBIT E-1 Company Security Agreement
EXHIBIT E-2 Subsidiary Security Agreement
EXHIBIT F-1 Holdings Guarantee
EXHIBIT F-2 Subsidiary Guarantee
EXHIBIT G-1 Holdings Pledge Agreement
EXHIBIT G-2 Company Pledge Agreement
EXHIBIT H Form of L/C Participation Certificate
EXHIBIT I Form of Swing Line Loan Participation Certificate
EXHIBIT J-1 Form of Opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
EXHIBIT J-2 Form of Opinion of ▇▇▇▇▇ ▇▇▇▇ LLP
EXHIBIT K Form of Subsection 4.11(d)(2) Certificate
EXHIBIT L-1 Form of Company Closing Certificate
EXHIBIT L-2 Form of Holdings Closing Certificate
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AMENDED AND RESTATED CREDIT AGREEMENT, dated as of December 8,
1997, among CSK AUTO, INC., an Arizona corporation (the "Company"), the several
lenders from time to time parties hereto (the "Lenders"), THE CHASE MANHATTAN
BANK, a New York banking corporation, as administrative agent for the Lenders
(in such capacity, the "Administrative Agent"), and ▇▇▇▇▇▇ COMMERCIAL PAPER
INC., a Delaware corporation, as documentation agent for the Lenders (in such
capacity, the "Documentation Agent").
W I T N E S S E T H:
WHEREAS, the Company, the several lenders from time to time
parties thereto, the Administrative Agent and the Documentation Agent have
entered into a credit agreement, dated as of October 30, 1996 (as heretofore
amended, supplemented or otherwise modified, the "Existing Credit Agreement");
WHEREAS, the Company intends to refinance (the "Refinancing")
the Existing Credit Agreement;
WHEREAS, the Company or one of its subsidiaries intends to
acquire (the "Trak West Acquisition") all of the issued and outstanding capital
stock of TRK Socal, Inc., a Delaware corporation ("Socal"), to which certain
assets of Trak Auto Corporation, Trak Corporation d/b/a Trak Auto Corporation I
and Super Trak Corporation (collectively, "Trak West") will be assigned or
transferred on or prior to the Closing Date, for an aggregate purchase price in
cash of approximately $38,000,000 pursuant to the Purchase Agreement (the
"Purchase Agreement") between the Company and Trak West dated October 6, 1997
(the Trak West Acquisition together with the Refinancing and the other
transactions contemplated hereby, collectively the "Transaction");
WHEREAS, the parties hereto have agreed to amend and restate
the Existing Credit Agreement as provided in this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual
agreements contained herein, and for other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree that
on the Closing Date (as defined below) the Existing Credit Agreement shall be
amended and restated in its entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms
defined in the caption hereto shall have the meanings set forth therein, and
the following terms have the following meanings:
"Acquisition and Financings": the transactions described under
the caption "Acquisition and Financings" in the Company's Prospectus,
dated May 13, 1997.
"Adjustment Date": as defined in the Pricing Grid.
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"Affiliate": of any Person (a) any Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with such Person, (b) any
Person who is a director or officer (i) of such Person, (ii) of any
Subsidiary of such Person or (iii) of any Person described in clause
(a) above or (c) in the case of a trust, its protectors or trustees,
any Person who is or has been a beneficiary thereof, or any Person who
is or has been able to appoint a beneficiary thereof. For purposes of
this definition, control of a Person shall mean the power, direct or
indirect (i) to vote 25% or more of the securities having ordinary
voting power for the election of directors of such Person, whether by
ownership of securities, contract, proxy or otherwise, or (ii) to
direct or cause the direction of the management and policies of such
Person, whether by ownership of securities, contract, proxy or
otherwise.
"Agents": the Administrative Agent and the Documentation
Agent.
"Agreement": this Amended and Restated Credit Agreement, as
amended, supplemented or modified from time to time.
"Alternate Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest
of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. For purposes hereof: "Prime Rate"
shall mean the rate of interest per annum publicly announced from time
to time by the Administrative Agent as its prime rate in effect at its
principal office in New York City (the Prime Rate not being intended
to be the lowest rate of interest charged by the Administrative Agent
in connection with extensions of credit to debtors); "Base CD Rate"
shall mean the sum of (a) the product of (i) the Three-Month Secondary
CD Rate and (ii) a fraction, the numerator of which is one and the
denominator of which is one minus the C/D Reserve Percentage and (b)
the C/D Assessment Rate; "Three-Month Secondary CD Rate" shall mean,
for any day, the secondary market rate for three-month certificates of
deposit reported as being in effect on such day (or, if such day shall
not be a Business Day, the next preceding Business Day) by the Board
of Governors of the Federal Reserve System (together with any
successor, the "Board") through the public information telephone line
of the Federal Reserve Bank of New York (which rate will, under the
current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day), or,
if such rate shall not be so reported on such day or such next
preceding Business Day, the average of the secondary market quotations
for three-month certificates of deposit of major money center banks in
New York City received at approximately 10:00 A.M., New York City
time, on such day (or, if such day shall not be a Business Day, on the
next preceding Business Day) by the Administrative Agent from three
New York City negotiable certificate of deposit dealers of recognized
standing selected by it; and "Federal Funds Effective Rate" shall
mean, for any day, the weighted average 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 which is a
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Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it. Any change in
the Alternate Base Rate due to a change in the Prime Rate, the Base CD
Rate or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Prime
Rate, the Base CD Rate or the Federal Funds Effective Rate,
respectively.
"Alternate Base Rate Lending Office": as to each Lender, the
office of such Lender located within the United States which shall be
making or maintaining Alternate Base Rate Loans.
"Alternate Base Rate Loans": Loans at such time as they are
made and/or being maintained at a rate of interest based upon the
Alternate Base Rate.
"Applicable Margin": for Term Loans, Revolving Credit Loans
and Swing Line Loans of the Types set forth below, the rate per annum
set forth under the relevant column heading opposite such Loans below:
Alternate
Base Rate Eurodollar
Loans Loans
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Term Loans: 1.50% 2.50%
Revolving Credit Loans: 1.25% 2.25%
Swing Line Loans: 1.25% Not applicable
provided, that on and after the first Adjustment Date occurring after
the Closing Date, the Applicable Margin will be determined pursuant to
the Pricing Grid.
"Asset Sale": any sale, sale-leaseback, or other disposition
by the Company or any Subsidiary thereof of any of its property or
assets, including the stock of any Subsidiary of the Company that is
restricted by subsection 8.5 hereof, other than sales and dispositions
permitted by subsections 8.5(a), (b), (c), (e), (f) and (g).
"Assignee": as defined in subsection 11.6(c).
"Assignment and Acceptance": an assignment and acceptance
substantially in the form of Exhibit D.
"Available Revolving Credit Commitment": as to any Lender, at
a particular time, an amount equal to (a) the amount of such Lender's
Revolving Credit Commitment at such time, less (b) the sum of (i) the
aggregate unpaid principal amount at such time of all Revolving Credit
Loans made by such Lender pursuant to subsection 3.1, (ii) such
Lender's Revolving Credit Commitment Percentage of the aggregate
unpaid principal amount at such time of all Swing Line Loans, provided
that for purposes of calculating the Revolving Credit Commitments
pursuant to subsection 3.2 the amount referred to in this clause (ii)
shall be zero, (iii) such Lender's L/C
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Participating Interest in the aggregate amount available to be drawn
at such time under all outstanding Letters of Credit issued by the
Issuing Lender and (iv) such Lender's Revolving Credit Commitment
Percentage of the aggregate outstanding amount of L/C Obligations;
collectively, as to all the Lenders, the "Available Revolving Credit
Commitments".
"Bankruptcy Code": Title I of the Bankruptcy Reform Act of
1978, as amended and codified at Title 11 of the United States Code.
"Board": as defined in the definition of "Alternate Base
Rate".
"Borrowing Date": any Business Day specified in a notice
pursuant to (a) subsection 3.4 or 4.1 as a date on which the Company
requests the Swing Line Lender or the Lenders to make Loans hereunder
or (b) subsection 3.5 as a date on which the Company requests the
Issuing Lender to issue a Letter of Credit hereunder.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close.
"Capital Expenditures": for any period, all amounts which
would, in accordance with GAAP, be set forth as capital expenditures
(exclusive of any amount attributable to capitalized interest) on the
consolidated statement of cash flows or other similar statement of the
Company and its Subsidiaries for such period and shall in any event
include expenditures to acquire all or a portion of the Capital Stock
or assets of any Person (exclusive of expenditures for the acquisition
of cash) but shall exclude any expenditures made with the proceeds of
condemnation or eminent domain proceedings affecting real property or
with insurance proceeds; provided that any Capital Expenditures
financed with the proceeds of any Indebtedness permitted hereunder
(other than Indebtedness incurred hereunder) shall be deemed to be a
Capital Expenditure only in the period in which, and by the amount
which, any principal of such Indebtedness is repaid.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests in
a Person (other than a corporation) and any and all warrants or
options to purchase any of the foregoing.
"Carmel Trust": the Carmel Trust, a trust governed by the
laws of Canada.
"Cash Equivalents": (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof having maturities of not more than
six months from the date of acquisition, (b) certificates of deposit
and eurodollar time deposits with maturities of six months or less
from the date of acquisition, bankers' acceptances with maturities not
exceeding six months and overnight bank deposits, in each case with
any Lender or with any domestic commercial bank having capital and
surplus in excess of $300,000,000, (c) repurchase obligations with a
term of not more than seven days for underlying
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securities of the types described in clauses (a) and (b) entered into
with any financial institution meeting the qualifications specified in
clause (b) above, and (d) commercial paper issued by any Lender or the
parent corporation of any Lender, and commercial paper rated A-1 or
the equivalent thereof by Standard & Poor's Ratings Group or P-1 or
the equivalent thereof by ▇▇▇▇▇'▇ Investors Service, Inc. and in each
case maturing within six months after the date of acquisition.
"C/D Assessment Rate": for any day the net annual assessment
rate (rounded upwards, if necessary, to the next 1/100 of 1%)
determined by the Administrative Agent to be payable on such day to
the Federal Deposit Insurance Corporation or any successor ("FDIC")
for FDIC's insuring time deposits made in Dollars at offices of the
Administrative Agent in the United States.
"C/D Reserve Percentage": for any day as applied to any Base
CD Rate, that percentage (expressed as a decimal) which is in effect
on such day, as prescribed by the Board for determining maximum
reserve requirement for a Depositary Institution (as defined in
Regulation D of the Board) in respect of new non-personal time
deposits in Dollars having a maturity of 30 days or more.
"Change in Law": with respect to any Lender, the adoption of
any law, rule, regulation, policy, guideline or directive (whether or
not having the force of law) or any change therein or in the
interpretation or application thereof by any Governmental Authority
having jurisdiction over such Lender, in each case after the Closing
Date.
"Change of Control": shall be considered to have occurred if
(i) at any time prior to an IPO by the Company or Holdings, (A) the
Initial Shareholders shall cease to own, directly or indirectly, in
the aggregate, at least 51% of the issued and outstanding voting stock
of Holdings or a majority of the directors of Holdings shall cease to
be nominees of the Investcorp Shareholders or (B) Holdings shall cease
to own 100% of the issued and outstanding voting stock of the Company,
in each case free and clear of all Liens (except, in the case of the
Capital Stock of the Company owned by Holdings, for Liens created by
the Holdings Pledge Agreement), and (ii) at any time after an IPO by
the Company or Holdings, (A)(1) if any Person, whether singly or in
concert with one or more Persons, other than the Initial Shareholders
or any Person acting in the capacity of an underwriter, shall,
directly or indirectly, have acquired, or acquire the power to vote or
direct the voting of, 30% or more on a fully diluted basis, of the
outstanding common stock of the Company or of the common stock of
Holdings and (2) the percentage of such outstanding voting stock held
by such Person or Persons shall be greater than the percentage of such
outstanding common stock held by the Investcorp Shareholders or (B) a
majority of the directors of Holdings shall cease to be nominees of
the Investcorp Shareholders.
"Chase": The Chase Manhattan Bank, a New York banking
corporation, and its successors.
"Closing Date": the date (which shall be on or prior to
January 31, 1998) on which the Lenders make their initial Loans.
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6
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral": all assets of the Credit Parties, now owned or
hereinafter acquired, upon which a Lien is purported to be created by
any Security Document.
"Commercial L/C": a commercial documentary Letter of Credit
under which the Issuing Lender agrees to make payments in Dollars for
the account of the Company, on behalf of the Company or a Subsidiary
thereof, in respect of obligations of the Company or such Subsidiary
in connection with the purchase of goods or services in the ordinary
course of business.
"Commitment": as to any Lender at any time, such Lender's
Swing Line Commitment, Term Loan Commitment and Revolving Credit
Commitment; collectively, as to all the Lenders, the "Commitments".
"Commitment Fee Rate": as specified on the Pricing Grid.
"Commitment Percentage": as to any Lender at any time, its
Term Loan Commitment Percentage or its Revolving Credit Commitment
Percentage, as the context may require.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within
the meaning of Section 414(b) or (c) of the Code.
"Company": CSK Auto, Inc., an Arizona corporation.
"Company Pledge Agreement": the Company Pledge Agreement,
dated as of October 30, 1996, made by the Company in favor of the
Administrative Agent for the ratable benefit of the Lenders, a copy of
which is attached hereto as Exhibit G-2, as the same may be amended,
modified or supplemented from time to time.
"Company Security Agreement": the Company Security Agreement,
dated as of October 30, 1996, made by the Company in favor of the
Administrative Agent for the ratable benefit of the Lenders, a copy of
which is attached hereto as Exhibit E-1, as the same may be amended,
modified or supplemented from time to time.
"Consolidated Current Assets": at a particular date, all
amounts which would, in conformity with GAAP, be included under
current assets on a consolidated balance sheet of the Company and its
Subsidiaries as at such date.
"Consolidated Current Liabilities": at a particular date, all
amounts which would, in conformity with GAAP, be included under
current liabilities on a consolidated balance sheet of the Company and
its Subsidiaries as at such date, excluding the current portion of
long-term debt and the entire outstanding principal amount of the
Revolving Credit Loans.
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"Consolidated EBITDA": for any period, the Consolidated Net
Income of the Company and its Subsidiaries for such period, plus,
without duplication and to the extent reflected as a charge in the
statement of such Consolidated Net Income for such period, the sum of
(a) total income tax expense (including any tax benefit or expense
related to the dividend on any preferred stock), (b) interest expense,
amortization or writeoff of debt discount, debt issuance, warrant and
other equity (including any preferred stock) issuance costs and
commissions, discounts, redemption premium and other fees and charges
associated with the Loans (including commitment fees and other
periodic bank charges), Standby L/Cs, the Permanent Subordinated Debt
or with the acquisition or repayment of any debt securities of the
Company permitted hereunder, and net costs associated with Interest
Rate Agreements to which the Company is a party in respect of the
Loans, (c) costs of surety bonds, (d) depreciation and amortization
expense, (e) amortization of inventory write-up under APB 16,
amortization of intangibles (including, but not limited to, goodwill
and costs of interest-rate caps, leasehold interests and the cost of
non-competition agreements) and organization costs, (f) non-cash
amortization of Financing Leases, (g) franchise taxes, (h) management
fees paid as contemplated by subsection 11.14(a), (i) all cash
dividend payments, (j) any fees and expenses incurred in connection
with the Acquisition and Financings and with the Transaction, (k)
phantom stock payments paid as contemplated by Section 4.15 of the
Stock Purchase Agreement, (l) any other write-downs, write-offs,
minority interests and other non-cash charges in determining such
Consolidated Net Income for such period and (m) all extraordinary
losses in determining such Consolidated Net Income for such period,
and minus, without duplication and to the extent reflected as a credit
in the statement of such Consolidated Net Income for such period, the
sum of (A) extraordinary gains, (B) non-cash income and (C) non-cash
gains; provided that: (i) the cumulative effect of a change in
accounting principles (effected either through cumulative effect
adjustment or a retroactive application) shall be excluded and (ii)
the impact of foreign currency translations shall be excluded.
"Consolidated Funded Indebtedness": at a particular date, all
Indebtedness (other than Indebtedness described in clauses (b), (c) or
(d) (but only to the extent such Indebtedness consists of leases
entered into in connection with the Real Estate Financing Agreement
which on the Closing Date would be classified as off- balance sheet
operating leases but which, due to a change in Securities and Exchange
Commission regulations, accounting requirements or the opinion of the
Company's auditors, are included as on-balance sheet indebtedness) of
the definition of "Indebtedness" included in this subsection 1.1) of
the Company and its Subsidiaries determined on a consolidated basis in
accordance with GAAP at such date.
"Consolidated Net Income": for any period, net income of the
Company and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP; provided that: (i) the net income (but not loss)
of any Person that is not a Subsidiary or that is accounted for by the
equity method of accounting shall be included only to the extent of
the amount of dividends or distributions paid in cash to the Company
or a wholly-owned Subsidiary, (ii) the net income of any Person
acquired in a pooling of interests transaction for any period prior to
the date of such acquisition shall be
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excluded and (iii) net income of any Subsidiary shall be excluded to
the extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of that net income is prohibited or
not permitted at the date of determination.
"Contingent Obligation": as to any Person, any obligation of
such Person guaranteeing or in effect guaranteeing any Indebtedness,
dividends or other obligations ("primary obligations") of any other
Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such
Person, whether or not contingent (a) to purchase any such primary
obligation or any property constituting direct or indirect security
therefor, (b) to advance or supply funds (i) for the purchase or
payment of any such primary obligation or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (c) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (d)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that
the term Contingent Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of
business. The amount of any Contingent Obligation shall be deemed to
be an amount equal to the stated or determinable amount (based on the
maximum reasonably anticipated net liability in respect thereof as
determined by the Company in good faith) of the primary obligation or
portion thereof in respect of which such Contingent Obligation is made
or, if not stated or determinable, the maximum reasonably anticipated
net liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by the Company in good faith.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of
the property owned by it is bound.
"Credit Documents": the collective reference to this
Agreement, the Notes, the Pledge Agreements, the Security Agreements
and the Guarantees.
"Credit Parties": the collective reference to Holdings, the
Company and each Subsidiary of the Company from time to time party to
a Guarantee.
"Default": any of the events specified in Section 9, whether
or not any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"Documentation Agent": ▇▇▇▇▇▇, in its capacity as
documentation agent hereunder.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Domestic Subsidiary": any Subsidiary of the Company other
than a Foreign Subsidiary.
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"Environmental Laws": any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees or requirements of any Governmental Authority or
requirements of law (including court-ordered requirements of common
law) regulating or imposing liability or standards of conduct
concerning, environmental or public health protection matters,
including, without limitation, Hazardous Materials, as now or may at
any time hereafter be in effect.
"Environmental Reports": the Phase 1 environmental
assessments covering certain owned and leased real properties of the
Company and its Subsidiaries made available by the Company to the
Administrative Agent prior to the date of the Existing Credit
Agreement.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Reserve Requirements": as defined in the
definition of Eurodollar Rate.
"Eurodollar Lending Office": as to any Lender the office of
such Lender which shall be making or maintaining Eurodollar Loans.
"Eurodollar Loans": Loans at such time as they are made
and/or being maintained at a rate of interest based upon a Eurodollar
Rate.
"Eurodollar Rate": with respect to each day during any
Interest Period for any Eurodollar Loan, the rate per annum equal to
the quotient of (a) the average (rounded upwards to the nearest whole
multiple of one sixteenth of one percent) of the respective rates
notified to the Administrative Agent by the Reference Lender as the
rate at which each of their Eurodollar Lending Offices is offered
Dollar deposits two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where the foreign
currency and exchange operations of such Eurodollar Lending Office are
customarily conducted at or about 10:00 A.M., New York City time, for
delivery on the first day of such Interest Period for the number of
days comprised therein and in an amount comparable to the amount of
the Eurodollar Loan of such Reference Lender to be outstanding during
such Interest Period, divided by (b) a number equal to 1.00 minus the
aggregate (without duplication) of the rates (expressed as a decimal)
of reserve requirements current on such day (including, without
limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board or other Governmental Authority having
jurisdiction with respect thereto), as now and from time to time
hereafter in effect, dealing with reserve requirements prescribed for
Eurocurrency funding (currently referred to as "Eurocurrency
liabilities" in Regulation D of such Board) maintained by a member
bank of such System (such rates of reserve requirements being referred
to herein as "Eurocurrency Reserve Requirements") (such Eurodollar
Rate to be rounded upwards, if necessary, to the next higher 1/100 of
one percent).
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"Event of Default": any of the events specified in Section 9,
provided that any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.
"Excess Cash Flow": at the end of any fiscal year of the
Company ending on or after February 1, 1998, the excess of (a) the
sum, without duplication, of (i) Consolidated EBITDA for the period
from October 30, 1996 to the end of such fiscal year and (ii)
extraordinary cash gains with respect to such period over (b) the sum,
without duplication, of (i) the aggregate amount actually paid by the
Company and its Subsidiaries in cash since October 30, 1996 on account
of capital expenditures (other than capital expenditures made with the
proceeds of eminent domain or condemnation proceedings to the extent
such proceeds are not included in the determination of EBITDA for such
period), (ii) the aggregate amount of payments of principal in respect
of any Indebtedness since October 30, 1996 (other than any such
payments of principal pursuant to subsections 4.4(b)(i), (ii)), (iii)
and (iv) or any such payment of principal in respect of any revolving
credit facility to the extent that there is not an equivalent
reduction in such facility), (iii) increases in working capital
(calculated as Consolidated Current Assets at the end of such period
minus Consolidated Current Liabilities as at the end of such period)
of the Company and its Subsidiaries since October 30, 1996 (excluding
any increase in cash or Cash Equivalents above an increase deemed in
good faith by the Company to be necessary or desirable for the
operation of the business of the Company and its Subsidiaries), (iv)
cash interest expense (including fees paid in connection with Letters
of Credit, surety bonds, commitment fees and other periodic bank
charges) of the Company since October 30, 1996, (v) the amount of
dividends actually paid in cash by the Company to Holdings since
October 30, 1996 as permitted by subsections 8.11(c)(iv) and
8.11(c)(v) and, to the extent not deducted from revenues in
determining Consolidated Net Income of the Company and its
Subsidiaries for such period, by subsection 8.11(c)(i) and (ii), (vi)
the amount of taxes actually paid in cash by the Company and its
Subsidiaries since October 30, 1996 either during such period or
within a normal payment period thereof, (vii) the amount of cash
actually paid to repurchase Capital Stock of Holdings pursuant to
subsection 8.11(c)(iii) since October 30, 1996, (viii) extraordinary
cash losses with respect to such period, (ix) any fees and expenses
incurred in connection with the Acquisition and Financings and with
the Transaction and (x) to the extent added to Consolidated Net Income
of the Company and its Subsidiaries in calculating Consolidated EBITDA
for such period, the net cost of Interest Rate Agreements, franchise
taxes and management fees during such period.
"Existing Credit Agreement": as defined in the recitals
hereto.
"Fee Property": as defined in subsection 5.13.
"Financing Lease": (a) any lease of property, real or
personal, the obligations under which are capitalized on a
consolidated balance sheet of the Company and its consolidated
Subsidiaries and (b) any other such lease to the extent that the then
present value of any rental commitment thereunder should, in
accordance with GAAP, be capitalized on a balance sheet of the lessee.
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"Foreign Subsidiary": any Subsidiary of the Company which is
not organized under the laws of the United States of America or any
state thereof or the District of Columbia.
"GAAP": generally accepted accounting principles in the
United States of America in effect from time to time.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof or any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantees": the collective reference to the Holdings
Guarantee, the Subsidiary Guaranty and any other guarantee which may
from time to time be executed and delivered by a Subsidiary of the
Company pursuant to subsection 8.6(b).
"Hazardous Materials": any hazardous materials, hazardous
wastes, hazardous pesticides, hazardous or toxic substances, defined,
listed, classified or regulated as such in or under any Environmental
Law, including, without limitation, asbestos, petroleum, any other
petroleum products (including gasoline, crude oil or any fraction
thereof) polychlorinated biphenyls and urea-formaldehyde insulation.
"Holdings": CSK Group, Ltd., a Delaware corporation.
"Holdings Guarantee": the Holdings Guarantee, dated as of
October 30, 1996, made by Holdings in favor of the Administrative
Agent for the ratable benefit of the Lenders, a copy of which is
attached hereto as Exhibit F-1, as the same may be amended, modified
or supplemented from time to time.
"Holdings Pledge Agreement": the Holdings Pledge Agreement,
dated as of October 30, 1996, made by Holdings in favor of the
Administrative Agent for the ratable benefit of the Lenders, a copy of
which is attached hereto as Exhibit G-1, as the same may be amended,
modified or supplemented from time to time.
"Holdings Subordinated Debt": (a) the Indebtedness under the
Series A Notes and the Series B Notes or (b) any refinancing thereof,
provided that (i) the maturity date, the interest rate, the scheduled
amortization, the final maturity and the subordination provisions
shall be at least as favorable to the Company and the Lenders as such
refinanced Holdings Subordinated Debt and the other terms and
conditions thereof (including, without limitation, the covenant and
event of default provisions thereof but excluding any call protection
provisions) taken as a whole shall be at least as favorable to the
Company and the Lenders as such refinanced Holdings Subordinated Debt,
(ii) no covenant contained in this Agreement or any of the other
Credit Documents would be violated on the proposed refinancing date
after giving effect to (A) such refinancing, (B) the payment of all
issuance costs, commissions, discounts, redemption premiums and other
fees and charges associated therewith, (C) the use of proceeds thereof
and (D) the redemption, repayment, retirement and repurchase of all
Indebtedness of the Company and its Subsidiaries to be redeemed,
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repaid, retired or repurchased in connection therewith and (iii)
substantially final drafts of the documentation governing any such
refinancing, showing the terms thereof, shall have been furnished to
the Lenders at least 10 days prior to the date of such refinancing.
"Indebtedness": of a Person, at a particular date, (a) all
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services, (b) the undrawn face amount of
all letters of credit issued for the account of such Person and,
without duplication, all drafts drawn thereunder and unpaid
reimbursement obligations with respect thereto, (c) all liabilities
(other than Lease Obligations) secured by any Lien on any property
owned by such Person, even though such Person has not assumed or
become liable for the payment thereof, (d) Financing Leases and (e)
all indebtedness of such Person arising under acceptance facilities;
but excluding (i) trade and other accounts payable and accrued
expenses payable in the ordinary course of business, (ii) letters of
credit supporting the purchase of goods in the ordinary course of
business and expiring no more than six months from the date of
issuance and (iii) obligations in respect of Interest Rate Agreements.
"Initial Shareholders": (a) INVESTCORP SA and its Affiliates
(provided that for purposes of clauses (a) and (b) of this definition
only, the reference to 25% in the definition of Affiliate contained in
this subsection 1.1 shall be deemed to be 51%) and Subsidiaries
(collectively, the "Investcorp Shareholders") and (b) the Carmel Trust
and its beneficiaries and their respective immediate family members,
heirs, estate, administrators and executors and trusts benefitting
them and Affiliates thereof.
"Insolvency": with respect to a Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of such term
as used in Section 4245 of ERISA.
"Installment Payment Date": as defined in subsection 4.4(c).
"Interest Coverage Ratio": on the last day of any fiscal
quarter of the Company, the ratio of (a) Consolidated EBITDA for the
period of four fiscal quarters ending on such day to (b) cash interest
expense (excluding fees payable on account of Letters of Credit and,
to the extent included in interest expense in accordance with GAAP,
net costs associated with Interest Rate Agreements to which the
Company is party in respect of the Loans, amortization of debt
discount (including discount of liabilities and reserves established
under APB 16), costs of debt issuance and interest expense on customer
deposits) for the period described in clause (a) above net of interest
income, in each case for or during such period on a consolidated basis
for the Company and its Subsidiaries.
"Interest Payment Date": (a) as to Alternate Base Rate Loans,
the last day of each March, June, September and December, commencing
on the first such day to occur after any Alternate Base Rate Loans are
made or any Eurodollar Loans are converted to Alternate Base Rate
Loans, (b) as to any Eurodollar Loan in respect of which the Company
has selected an Interest Period of one, two or three months, the last
day of such Interest Period and (c) as to any Eurodollar Loan in
respect of which
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the Company has selected an Interest Period longer than three months,
on each successive date three months after the first day of such
Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(a) initially, the period commencing on, as the case
may be, the Borrowing Date or conversion date with respect to
such Eurodollar Loan and ending one, two, three, six or, if
and when available to all the relevant Lenders, nine or twelve
months thereafter as selected by the Company in its notice of
borrowing as provided in subsection 4.1 or its notice of
conversion as provided in subsection 4.2; and
(b) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three, six or, if and
when available to all the relevant Lenders, nine or twelve
months thereafter as selected by the Company by irrevocable
notice to the Administrative Agent not less than three
Business Days prior to the last day of the then current
Interest Period with respect to such Eurodollar Loan;
provided that the foregoing provisions relating to Interest Periods
are subject to the following:
(A) if any Interest Period would otherwise end on a
day which is not a Business Day, that Interest Period shall be
extended to the next succeeding Business Day, unless the
result of such extension would be to carry such Interest
Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding
Business Day;
(B) any Interest Period that would otherwise extend
beyond (i) in the case of an Interest Period for a Term Loan,
the final Installment Payment Date for such Term Loan shall
end on such Installment Payment Date or, if such Installment
Payment Date shall not be a Business Day, on the next
preceding Business Day and (ii) in the case of any Interest
Period for a Revolving Credit Loan, the Revolving Credit
Termination Date shall end on the Revolving Credit Termination
Date, or if the Revolving Credit Termination Date shall not be
a Business Day, on the next preceding Business Day;
(C) if the Company shall fail to give notice as
provided above in clause (b), it shall be deemed to have
selected a conversion of a Eurodollar Loan into an Alternate
Base Rate Loan (which conversion shall occur automatically and
without need for compliance with the conditions for conversion
set forth in subsection 4.2);
(D) any Interest Period that begins on the last day
of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of
a calendar month; and
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(E) the Company shall select Interest Periods so as
not to require a prepayment (to the extent practicable) or a
scheduled payment of a Eurodollar Loan during an Interest
Period for such Eurodollar Loan.
"Interest Rate Agreement": any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement, currency
hedge agreement or other similar agreement or arrangement; provided
that the amount of any such Interest Rate Agreement for purposes of
Section 9(e) shall be based on calculation of payments for early
termination in a reasonable manner in accordance with customary
industry practices.
"Inventory": as defined in the Uniform Commercial Code as in
effect in the State of New York; and, with respect to the Company and
its Subsidiaries, all such Inventory of the Company or such Subsidiary
including, without limitation, all finished goods, wares and
merchandise, finished or unfinished parts, components, assemblies held
for sale to third party customers by the Company or such Subsidiary.
"Investcorp Shareholders": as defined in the definition of
"Initial Shareholders."
"Investors": Investcorp Investment Equity Limited and certain
of its Affiliates and other international investors and the Carmel
Trust and its Affiliates.
"IPO": any sale by either the Company or Holdings through a
public offering of its common (or other voting) stock pursuant to an
effective registration statement (other than a registration statement
on Form ▇-▇, ▇-▇ or any successor or similar forms) filed under the
Securities Act of 1933, as amended.
"Issuing Lender": Chase and any of its Affiliates, including
Chase Bank Delaware or ▇▇▇▇▇ Fargo Bank, N.A., at the discretion of
the Company, as issuers of the Letters of Credit.
"L/C Application": as defined in subsection 3.5(a).
"L/C Obligations": the obligations of the Company to reimburse
the Issuing Lender for any payments made by the Issuing Lender under
any Letter of Credit that have not been reimbursed by the Company
pursuant to subsection 3.8(a).
"L/C Participating Interest": an undivided participating
interest (equal to such Lender's Revolving Credit Commitment
Percentage) in the face amount of each issued and outstanding Letter
of Credit and the L/C Application relating thereto.
"L/C Participation Certificate": the certificate in
substantially the form of Exhibit H.
"Lease Obligations": of the Company and its Subsidiaries, as
of the date of any determination thereof, the rental commitments of
the Company and its Subsidiaries
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determined on a consolidated basis, if any, under leases for real
and/or personal property (net of rental commitments from sub-leases
thereof), excluding however, obligations under Financing Leases.
"Leased Properties": as defined in subsection 5.13.
"▇▇▇▇▇▇": ▇▇▇▇▇▇ Commercial Paper Inc., a Delaware
corporation.
"Letters of Credit": the collective reference to the
Commercial L/Cs and the Standby L/Cs; individually, a "Letter of
Credit".
"Leverage Ratio": as defined in subsection 8.9.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or
preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement,
any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under
the Uniform Commercial Code or comparable law of any jurisdiction in
respect of any of the foregoing except for the filing of financing
statements in connection with Lease Obligations incurred by the
Company or its Subsidiaries to the extent that such financing
statements relate to the property subject to such Lease Obligations).
"Loans": the collective reference to the Swing Line Loans,
the Term Loans and the Revolving Credit Loans; individually, a "Loan".
"Maturity Date": October 31, 2003.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Proceeds": the aggregate cash proceeds received by
Holdings, the Company or any Subsidiary of the Company in respect of:
(a) (i) any issuance or borrowing of any debt
securities or loans by the Company or any Subsidiary other
than debt or loans permitted to be incurred or borrowed
pursuant to subsection 8.1 or (ii) any issuance of Capital
Stock.
(b) any Asset Sale, excluding (i) any net proceeds
received upon any condemnation or exercise of rights of
eminent domain to the extent the same shall be deemed not to
constitute Net Proceeds pursuant to the proviso to subsection
8.5(d) and (ii) any proceeds of insurance received upon any
casualty or loss;
(c) any cash received in respect of substantially
like-kind exchanges of property to the extent provided in the
proviso to subsection 8.5(e); and
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(d) any cash payments received in respect of
promissory notes delivered to the Company or such Subsidiary
in respect of an Asset Sale;
in each case net of (without duplication) (A) the amount required to
repay any Indebtedness (other than the Loans) secured by a Lien on any
assets of the Company or a Subsidiary of the Company that are
collateral for any such debt securities or loans that are sold or
otherwise disposed of in connection with such Asset Sale, (B) the
reasonable expenses (including legal fees and brokers' and
underwriters' commissions, lenders fees or credit enhancement fees, in
any case, paid to third parties or, to the extent permitted hereby,
Affiliates) incurred in effecting such issuance or sale and (C) any
taxes reasonably attributable to such sale and reasonably estimated by
the Company or such Subsidiary to be actually payable.
"Non-Funding Lender": as defined in subsection 4.9(c).
"Notes": the collective reference to the Swing Line Note, the
Revolving Credit Notes and the Term Loan Notes; each of the Notes, a
"Note".
"Participants": as defined in subsection 11.6(b).
"Participating Lender": any Lender (other than the Issuing
Lender) with respect to its L/C Participating Interest in each Letter
of Credit.
"Payment Sharing Notice": a written notice from the Company
or any Lender informing the Administrative Agent that an Event of
Default has occurred and is continuing and directing the
Administrative Agent to allocate payments thereafter received from or
on behalf of the Company in accordance with the provisions of
subsection 4.9.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA or any successor.
"Permanent Subordinated Debt": (a) the Indebtedness under the
Permanent Subordinated Notes and (b) unsecured notes or debentures of
the Company, subordinated to the prior payment of the Loans and the
other obligations under the Credit Documents, that may be issued by
the Company in order to refinance the Permanent Subordinated Debt,
provided that (i) the maturity date, the interest rate, the scheduled
amortization, the final maturity and the subordination provisions
shall be at least as favorable to the Company and the Lenders as such
refinanced Permanent Subordinated Debt and the other terms and
conditions thereof (including, without limitation, the covenant and
event of default provisions thereof but excluding any call protection
provisions) taken as a whole shall be at least as favorable to the
Company and the Lenders as such refinanced Permanent Subordinated
Debt, (ii) no covenant contained in this Agreement or any of the other
Credit Documents would be violated on the proposed issuance date after
giving effect to (A) the issuance of such notes or debentures, (B) the
payment of all issuance costs, commissions, discounts, redemption
premiums and other fees and charges associated therewith, (C) the use
of proceeds
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thereof and (D) the redemption, repayment, retirement and repurchase
of all Indebtedness of the Company and its Subsidiaries to be
redeemed, repaid or repurchased in connection therewith and (iii)
substantially final drafts of the documentation governing any such
notes or debentures, showing the terms thereof, shall have been
furnished to the Lenders at least 10 days prior to the date of
issuance of such notes or debentures.
"Permanent Subordinated Note Indenture": the Indenture, dated
as of October 30, 1996, between the Company and The Bank of New York
(as successor to ▇▇▇▇▇ Fargo, N.A.), as trustee.
"Permanent Subordinated Notes": the 11% senior subordinated
notes due 2006 issued by the Company pursuant to the Permanent
Subordinated Note Indenture.
"Permitted Liens": Liens permitted to exist under subsection
8.2.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at any particular time, any employee benefit plan as
defined in Section 3(3) of ERISA and not excluded by Section 4(b) of
ERISA and in respect of which the Company or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Pledge Agreements": the collective reference to the Holdings
Pledge Agreement, the Company Pledge Agreement and any pledge
agreement from time to time executed and delivered by any Subsidiary
of the Company providing for the pledge of the Capital Stock of any
Subsidiary pursuant to subsection 8.6(b).
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Purchase Agreement": as defined in the recitals hereto.
"Real Estate Financing Agreement": the Agreement, dated as of
October 30, 1996, between Carmel Trust and the Company or the
arrangement, to become effective on or about February 1, 1998, between
Franchise Finance Corporation of America and the Company, or any other
substantially similar arrangement.
"Reference Lender": Chase.
"Refinancing": as defined in the recitals hereto.
"Refunded Swing Line Loans": as defined in subsection 3.4(b).
"Register": as defined in subsection 11.6(d).
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"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System, as from time to time in effect.
"Related Document": any agreement, certificate, document or
instrument relating to a Letter of Credit.
"Reorganization": with respect to a Multiemployer Plan, the
condition that such Plan is in reorganization as such term is used in
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA other than those events as to which the thirty day
notice period is waived under subsections .13, .14, .16, .18, .19 or
.20 of PBGC Reg. Section 2615.
"Required Lenders": at a particular time, the holders of at
least 51% of the sum of (i) the aggregate unpaid principal amount of
the Term Loans, if any, and (ii) the Revolving Credit Commitments or,
if the Revolving Credit Commitments are terminated, the aggregate
unpaid principal amount of the Revolving Credit Loans, and
participations in Swing Line Loans, the aggregate amount available to
be drawn at such time under all outstanding Letters of Credit and L/C
Obligations. The Term Loans and the Revolving Credit Commitments of
any Non-Funding Lender shall be disregarded in determining Required
Lenders at any time.
"Requirement of Law": as to any Person, the Articles or
Certificate of Incorporation and By-Laws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation, order, or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or binding
upon such Person or any of its property, or to which such Person or
any of its property is subject.
"Responsible Officer": with respect to any Person, the
president, chief executive officer, the chief operating officer, the
chief financial officer, treasurer, controller or any vice president
of such Person.
"Revolving Credit Commitment": as to any Lender, its
obligations to make Revolving Credit Loans to the Company pursuant to
subsection 3.1, and to purchase its L/C Participating Interest in any
Letter of Credit, in an aggregate amount not to exceed the amount set
forth under such Lender's name in Schedule I opposite the caption
"Revolving Credit Commitment" or in Schedule 1 to the Assignment and
Acceptance by which such Lender acquired its Revolving Credit
Commitment, as the same may be reduced from time to time pursuant to
subsection 4.3 or 4.4(b) or adjusted pursuant to subsection 11.6(c);
collectively, as to all the Lenders, the "Revolving Credit
Commitments". The original aggregate principal amount of the
Revolving Credit Commitments is $125,000,000.
"Revolving Credit Commitment Percentage": as to any Lender at
any time, the percentage of the aggregate Revolving Credit Commitments
then constituted by such Lender's Revolving Credit Commitment.
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"Revolving Credit Commitment Period": the period from and
including the Closing Date to but not including the Revolving Credit
Termination Date.
"Revolving Credit Loan" and "Revolving Credit Loans": as
defined in subsection 3.1(a).
"Revolving Credit Note": as defined in subsection 4.13(e).
"Revolving Credit Termination Date": the earlier of (a)
October 31, 2001 and (b) such other date as the Revolving Credit
Commitments shall terminate hereunder.
"Section 4.4 Lenders": at a particular time, the holders of
(a) at least 51% of the aggregate unpaid principal amount of the Term
Loans, if any, and (b) at least 51% of the Revolving Credit
Commitments or, if the Revolving Credit Commitments are terminated,
the aggregate unpaid principal amount of the Revolving Credit Loans,
and participations in Swing Line Loans and the aggregate amount
available to be drawn at such time under all outstanding Letters of
Credit. The Term Loans and the Revolving Credit Commitments of any
Non-Funding Lender shall be disregarded in determining Section 4.4
Lenders at any time.
"Security Agreements": the collective reference to the
Company Security Agreement, the Subsidiary Security Agreement and any
other security agreement which may from time to time be executed and
delivered by a Subsidiary of the Company pursuant to subsection
8.6(b).
"Security Documents": the collective reference to the Pledge
Agreements and the Security Agreements.
"Series A Note Indenture": the Indenture, dated as of October
30, 1996, between Holdings and TransAtlantic Finance, Ltd., as
trustee.
"Series A Notes": the 12% Subordinated Series A Notes due
October 31, 2008 issued by Holdings pursuant to the Series A Note
Indenture.
"Series B Note Indenture": the Indenture, dated as of October
30, 1996, between Holdings and AIBC Services, N.V., as trustee.
"Series B Notes": the 12% Subordinated Series B Notes due
October 31, 2008 issued by Holdings pursuant to the Series B Note
Indenture.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA and which is not a Multiemployer Plan.
"Socal": as defined in the recitals hereto.
"Standby L/C": an irrevocable letter of credit under which
the Issuing Lender agrees to make payments in Dollars for the account
of the Company, on behalf of the
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Company or any Subsidiary thereof in respect of obligations of the
Company or such Subsidiary incurred pursuant to contracts made or
performances undertaken or to be undertaken or like matters relating
to contracts to which the Company or such Subsidiary is or proposes to
become a party in the ordinary course of the Company's or such
Subsidiary's business, including, without limiting the foregoing, for
insurance purposes or in respect of advance payments or as bid or
performance bonds or for any other purpose for which a standby letter
of credit might customarily be issued.
"Stock Purchase Agreement": the Stock Purchase Agreement,
dated as of September 29, 1996, among the Investors, Holdings and CSK
Holdings, Ltd., a Delaware corporation.
"Subsection 4.11(d)(2) Certificate": as defined in subsection
4.11(d).
"Subsidiary": as to any Person, any corporation of which
shares of stock of each class having ordinary voting power (other than
stock having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation are at the time owned by such Person or
by one or more Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person. (A Subsidiary shall be deemed
wholly-owned by a Person who owns all of the voting shares of stock of
such Subsidiary having voting power under ordinary circumstances to
vote for directors, except for directors' qualifying shares.) Unless
otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Company.
"Subsidiary Guarantee": the Subsidiary Guarantee, dated as of
October 30, 1996, made by each Domestic Subsidiary of the Company in
favor of the Administrative Agent for the ratable benefit of the
Lenders, a copy of which is attached hereto as Exhibit F-2, as the
same may be amended, modified or supplemented from time to time.
"Subsidiary Security Agreement": the Subsidiary Security
Agreement, dated as of October 30, 1996, made by each Domestic
Subsidiary of the Company in favor of the Administrative Agent for the
ratable benefit of the Lenders, a copy of which is attached hereto as
Exhibit E-2, as the same may be amended, modified or supplemented from
time to time.
"Supermajority Lenders": at a particular time, the holders of
at least 66-2/3% of the sum of (i) the aggregate unpaid principal
amount of the Term Loans, if any, and (ii) the Revolving Credit
Commitments or, if the Revolving Credit Commitments are terminated,
the aggregate unpaid principal amount of the Revolving Credit Loans,
and participations in Swing Line Loans and the aggregate amount
available to be drawn at such time under all outstanding Letters of
Credit. The Term Loans and the Revolving Credit Commitments of any
Non-Funding Lender shall be disregarded in determining Supermajority
Lenders at any time.
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"Swing Line Commitment": the Swing Line Lender's obligation
to make Swing Line Loans pursuant to subsection 3.4.
"Swing Line Lender": Chase in its capacity as lender of the
Swing Line Loans.
"Swing Line Loan Participation Certificate": a certificate in
substantially the form of Exhibit I.
"Swing Line Loans": as defined in subsection 3.4(a).
"Swing Line Note": as defined in subsection 4.13(e).
"Term Loan Commitment": as to any Lender, its obligation to
make a Term Loan to the Company pursuant to subsection 2.1 in an
aggregate amount not to exceed the amount set forth under such
Lender's name in Schedule I opposite the caption "Term Loan
Commitment" or in Schedule 1 to the Assignment and Acceptance pursuant
to which a Lender acquires its Term Loan Commitment, as the same may
be adjusted pursuant to subsection 11.6(c); collectively, as to all
the Lenders, the "Term Loan Commitments". The original aggregate
principal amount of the Term Loan Commitments is $175,000,000.
"Term Loan Commitment Percentage": as to any Lender at any
time, the percentage of the aggregate Term Loan Commitments then
constituted by such Lender's Term Loan Commitment.
"Term Loan Note": as defined in subsection 4.13(e).
"Term Loans": as defined in subsection 2.1.
"Trak West": as defined in the recitals hereto.
"Trak West Acquisition": as defined in the recitals hereto.
"Transaction": as defined in the recitals hereto.
"Transferee": as defined in subsection 11.6(f).
"Type": as to any Loan, its nature as an Alternate Base Rate
Loan or Eurodollar Loan.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, and any amendments thereof.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the Notes, any
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other Credit Document or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in the Notes, any other Credit
Document and any certificate or other document made or delivered pursuant
hereto, accounting terms relating to the Company and its Subsidiaries not
defined in subsection 1.1 and accounting terms partly defined in subsection 1.1
to the extent not defined, shall have the respective meanings given to them
under GAAP. All computations determining compliance with financial covenants
or terms, including definitions used therein, shall be prepared in accordance
with generally accepted accounting principles in effect at the time of the
preparation of, and in conformity with those used to prepare, the historical
financial statements delivered to the Administrative Agent pursuant to
subsection 7.1. If at any time the computations for determining compliance
with financial covenants or provisions relating thereto utilize generally
accepted accounting principles different than those then being utilized in the
financial statements then being delivered to the Administrative Agent, such
financial statements shall be accompanied by a reconciliation statement with
respect to such computations.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to the singular and plural forms of such terms.
SECTION 2. TERM LOANS
2.1 Term Loans. Subject to the terms and conditions hereof,
each Lender severally agrees to make a loan in Dollars (individually, a "Term
Loan"; and collectively, the "Term Loans") to the Company on the Closing Date,
in an aggregate principal amount equal to such Lender's Term Loan Commitment.
2.2 Repayment of Term Loans. The Company shall repay the
Term Loans as provided in subsection 4.4(c).
2.3 Use of Proceeds. The proceeds of the Term Loans will be
used to finance in part the Transaction and to pay certain of the fees,
expenses and financing costs related to the Transaction.
SECTION 3. AMOUNT AND TERMS OF REVOLVING
CREDIT COMMITMENTS
3.1 Revolving Credit Commitments. (a) Subject to the terms
and conditions hereof, each Lender severally agrees to the extent of its
Revolving Credit Commitment to extend credit to the Company from time to time
on any Borrowing Date during the Revolving
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Credit Commitment Period (i) by purchasing an L/C Participating Interest in
each Letter of Credit issued by the Issuing Lender and (ii) by making loans in
Dollars (individually, such a Loan is a "Revolving Credit Loan", and
collectively such Loans are the "Revolving Credit Loans") to the Company from
time to time. Notwithstanding the above, (x) in no event shall any Letter of
Credit be issued if after giving effect thereto the sum of the undrawn amount
of all outstanding Letters of Credit and the amount of all L/C Obligations
would exceed $15,000,000 and (y) in no event shall any Revolving Credit Loans
be made, or Letters of Credit be issued, if the aggregate amount of the
Revolving Credit Loans to be made or Letters of Credit to be issued would,
after giving effect to the use of proceeds, if any, thereof, exceed the
aggregate Available Revolving Credit Commitments. During the Revolving Credit
Commitment Period, the Company may use the Revolving Credit Commitments by
borrowing, prepaying the Revolving Credit Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof, and/or by
having the Issuing Lender issue Letters of Credit, having such Letters of
Credit expire undrawn upon or if drawn upon, reimbursing the Issuing Lender for
such drawing, and having the Issuing Lender issue new Letters of Credit.
(b) Each borrowing of Revolving Credit Loans pursuant to the
Revolving Credit Commitments shall be in an aggregate principal amount of the
lesser of (i) $1,000,000 or a whole multiple of $100,000 in excess thereof, in
the case of Alternate Base Rate Loans, and $2,000,000 or a whole multiple of
$1,000,000 in excess thereof, in the case of Eurodollar Loans and (ii) the
Available Revolving Credit Commitments, except that any borrowing of Revolving
Credit Loans to be used solely to pay a like amount of Swing Line Loans may be
in the aggregate principal amount of such Swing Line Loans.
3.2 Commitment Fee. The Company agrees to pay to the
Administrative Agent for the account of each Lender (other than any Non-Funding
Lender) a commitment fee from and including the Closing Date to and including
the Revolving Credit Termination Date, computed at the rate of 1/2 of 1% per
annum on the average daily amount of the Available Revolving Credit Commitment
of such Lender during the period for which payment is made (whether or not the
Company shall have satisfied the applicable conditions to borrowing or issuance
of a Letter of Credit set forth in Section 6) provided, that on and after the
first Adjustment Date occurring after the Closing Date, such commitment fee
will be determined pursuant to the Pricing Grid. Such commitment fee shall be
payable quarterly in arrears on the last day of each March, June, September and
December and on the Revolving Credit Termination Date, commencing on the first
such date to occur on or following the Closing Date (or, if earlier, the
Revolving Credit Termination Date).
3.3 Proceeds of Revolving Credit Loans. The Company shall
use the proceeds of Revolving Credit Loans for general corporate purposes of
the Company and its Subsidiaries, including (i) the redemption, repayment or
repurchase of up to $20,000,000 aggregate principal amount of the Permanent
Subordinated Debt in accordance with Section 8.13, (ii) acquisitions of
companies engaged primarily in businesses similar to the businesses in which
the Company and its Subsidiaries are engaged, in an aggregate amount of
$50,000,000 in accordance with Section 8.7(b) and (iii) investments in the
development of new or relocated stores in an aggregate amount not to exceed at
any one time $50,000,000, against which amount shall be credited any funds from
the subsequent sale of any real
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property or fixtures purchased or developed in connection therewith, in
accordance with Section 8.7(c).
3.4 Swing Line Commitment. (a) Subject to the terms and
conditions hereof, the Swing Line Lender agrees, so long as the Administrative
Agent has not received notice that an Event of Default has occurred and is
continuing, to make swing line loans (individually, a "Swing Line Loan";
collectively, the "Swing Line Loans") to the Company from time to time during
the Revolving Credit Commitment Period in an aggregate principal amount at any
one time outstanding not to exceed $15,000,000, provided that no Swing Line
Loan may be made if the aggregate principal amount of the Swing Line Loans to
be made would exceed the aggregate Available Revolving Credit Commitments at
such time. Amounts borrowed by the Company under this subsection 3.4 may be
repaid and, through but excluding the Revolving Credit Termination Date,
reborrowed. All Swing Line Loans shall be made as Alternate Base Rate Loans
and shall not be entitled to be converted into Eurodollar Loans. The Company
shall give the Swing Line Lender irrevocable notice (which notice must be
received by the Swing Line Lender prior to 3:00 p.m., New York City time) on
the requested Borrowing Date specifying the amount of each requested Swing Line
Loan, which shall be in an aggregate minimum amount of $250,000 or a whole
multiple of $100,000 in excess thereof. The proceeds of each Swing Line Loan
will be made available by the Swing Line Lender to the Company by crediting the
account of the Company at the office of the Swing Line Lender with such
proceeds. The proceeds of Swing Line Loans may be used solely for the purposes
referred to in subsection 3.3.
(b) The Swing Line Lender at any time in its sole and
absolute discretion may, and on the fifteenth day (or if such day is not a
Business Day, the next Business Day) and last Business Day of each month shall,
on behalf of the Company (which hereby irrevocably directs the Swing Line
Lender to act on its behalf) request each Lender, including the Swing Line
Lender, to make a Revolving Credit Loan in an amount equal to such Lender's
Revolving Credit Commitment Percentage of the amount of the Swing Line Loans
(the "Refunded Swing Line Loans") outstanding on the date such notice is given.
Unless any of the events described in paragraph (f) of Section 9 shall have
occurred (in which event the procedures of paragraph (c) of this subsection 3.4
shall apply) each Lender shall make the proceeds of its Revolving Credit Loan
available to the Swing Line Lender for the account of the Swing Line Lender at
the Alternate Base Rate Lending Office of the Swing Line Lender prior to 2:00
p.m. (New York City time) in funds immediately available on the Business Day
next succeeding the date such notice is given. The proceeds of such Revolving
Credit Loans shall be immediately applied to repay the Refunded Swing Line
Loans.
(c) If prior to the making of a Revolving Credit Loan
pursuant to paragraph (b) of this subsection 3.4 one of the events described in
paragraph (f) of Section 9 shall have occurred, each Lender will, on the date
such Loan was to have been made, purchase an undivided participating interest
in the Refunded Swing Line Loan in an amount equal to its Revolving Credit
Commitment Percentage of such Refunded Swing Line Loan. Each Lender will
immediately transfer to the Swing Line Lender in immediately available funds,
the amount of its participation and upon receipt thereof the Swing Line Lender
will deliver to such Lender a Swing Line Loan Participation Certificate dated
the date of receipt of such funds and in such amount.
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(d) Whenever, at any time after the Swing Line Lender has
received from any Lender such Lender's participating interest in a Refunded
Swing Line Loan, the Swing Line Lender receives any payment on account thereof,
the Swing Line Lender will distribute to such Lender its participating interest
in such amount (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's participating interest
was outstanding and funded) in like funds as received; provided, however, that
in the event that such payment received by the Swing Line Lender is required to
be returned, such Lender will return to the Swing Line Lender any portion
thereof previously distributed by the Swing Line Lender to it in like funds as
such payment is required to be returned by the Swing Line Lender.
(e) Each Lender's obligation to purchase participating
interests pursuant to subsection 3.4(c) shall be absolute and unconditional and
shall not be affected by any circumstance, including, without limitation, (i)
any set-off, counterclaim, recoupment, defense or other right which such Lender
may have against the Swing Line Lender, the Company or any other Person for any
reason whatsoever; (ii) the occurrence or continuance of an Event of Default;
(iii) any adverse change in the condition (financial or otherwise) of the
Company; (iv) any breach of this Agreement by the Company or any other Lender;
or (v) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.
3.5 Issuance of Letters of Credit. (a) The Company may from
time to time request the Issuing Lender to issue a Standby L/C or a Commercial
L/C by delivering to the Issuing Lender at its address specified in subsection
11.2 or as otherwise agreed between the Company and the Issuing Lender a letter
of credit application in the Issuing Lender's then customary form (the "L/C
Application") completed to the satisfaction of the Issuing Lender, together
with the proposed form of such Letter of Credit (which shall comply with the
applicable requirements of paragraph (b) below) and such other certificates,
documents and other papers and information as the Issuing Lender may reasonably
request; provided that if the Issuing Lender informs the Company that it is for
any reason unable to open such Letter of Credit, the Company may request any
Lender to open such Letter of Credit upon the same terms offered to the Issuing
Lender and each reference to the Issuing Lender for purposes of subsections 3.5
through 3.14, 6.1 and 6.2 shall be deemed to be a reference to such Issuing
Lender.
(b) Each Standby L/C and Commercial L/C issued hereunder
shall, among other things, (i) be in such form requested by the Company as
shall be acceptable to the Issuing Lender in its sole discretion and (ii) in
the case of each Standby L/C, have an expiry date occurring not later than 365
days after the date of issuance of such Standby L/C and, in the case of each
Commercial L/C, have an expiry date occurring not later than 120 days after the
date of issuance of such Commercial L/C (or such longer time as shall be agreed
to by the Issuing Lender thereof, in its sole discretion) and, in all cases,
may be automatically renewed on its expiry date for an additional period equal
to the initial term but in no case shall any Letter of Credit have an expiry
date occurring later than three Business Days before the Revolving Credit
Termination Date. Each L/C Application and each Letter of Credit shall be
subject to the Uniform Customs and, to the extent not inconsistent therewith,
the laws of the State of New York, in the case of Chase and any of its
Affiliates, including Chase Bank
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Delaware, acting as Issuing Lender, or the State of California, in the case of
▇▇▇▇▇ Fargo Bank, N.A. acting as Issuing Lender.
(c) Notwithstanding anything to the contrary herein, the
letters of credit listed on Schedule 3.5(c) shall be deemed to have been issued
hereunder and deemed to be Letters of Credit for all purposes hereof.
3.6 Participating Interests. Effective in the case of each
Standby L/C and Commercial L/C as of the date of the opening thereof, the
Issuing Lender agrees to allot and does allot, to itself and each other Lender,
and each Lender severally and irrevocably agrees to take and does take in such
Letter of Credit and the related L/C Application, an L/C Participating Interest
in a percentage equal to such Lender's Revolving Credit Commitment Percentage.
3.7 Procedure for Opening Letters of Credit. The Issuing
Lender will notify the Administrative Agent and each Lender after the end of
each calendar month of any L/C Applications received by the Issuing Lender from
the Company during such month. Upon receipt of any L/C Application from the
Company, the Issuing Lender will process such L/C Application, and the other
certificates, documents and other papers delivered to the Issuing Lender in
connection therewith, in accordance with its customary procedures and, subject
to the terms and conditions hereof, shall promptly open such Letter of Credit
by issuing the original of such Letter of Credit to the beneficiary thereof and
by furnishing a copy thereof to the Company, provided that no such Letter of
Credit shall be issued if subsection 3.1 would be violated thereby.
3.8 Payments in Respect of Letters of Credit. (a) The
Company agrees forthwith upon demand by the Issuing Lender and otherwise in
accordance with the terms of the L/C Application relating thereto (i) to
reimburse the Issuing Lender for any payment made by the Issuing Lender under
any Letter of Credit issued for the account of the Company and (ii) to pay
interest on any unreimbursed portion of any such payment from the date of such
payment until reimbursement in full thereof at a rate per annum equal to (A) on
or prior to the date which is one Business Day after the day on which the
Issuing Lender demands reimbursement from the Company for such payment, the
Alternate Base Rate plus the Applicable Margin for the Revolving Credit Loans
and (B) thereafter, the Alternate Base Rate plus the Applicable Margin for
Revolving Credit Loans plus 2%.
(b) In the event that the Issuing Lender makes a payment
under any Letter of Credit and is not reimbursed in full therefor forthwith
upon demand of the Issuing Lender, and otherwise in accordance with the terms
of the L/C Application relating to such Letter of Credit, the Issuing Lender
will promptly notify each other Lender. Forthwith upon its receipt of any such
notice, each other Lender will transfer to the Issuing Lender, in immediately
available funds, an amount equal to such other Lender's pro rata share of the
L/C Obligation arising from such unreimbursed payment. Promptly, upon its
receipt from such other Lender of such amount, the Issuing Lender will
complete, execute and deliver to such other Lender an L/C Participation
Certificate dated the date of such receipt and in such amount.
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(c) Whenever, at any time after the Issuing Lender has made a
payment under any Letter of Credit and has received from any other Lender such
other Lender's pro rata share of the L/C Obligation arising therefrom, the
Issuing Lender receives any reimbursement on account of such L/C Obligation or
any payment of interest on account thereof, the Issuing Lender will promptly
distribute to such other Lender its pro rata share thereof in like funds as
received; provided, however, that in the event that the receipt by the Issuing
Lender of such reimbursement or such payment of interest (as the case may be)
is required to be returned, such other Lender will return to the Issuing Lender
any portion thereof previously distributed by the Issuing Lender to it in like
funds as such reimbursement or payment is required to be returned by the
Issuing Lender.
3.9 Letter of Credit Fees. (a) In lieu of any letter of
credit commissions and fees provided for in any L/C Application relating to
Standby or Commercial L/Cs (other than standard issuance, amendment and
negotiation fees), the Company agrees to pay the Administrative Agent, for the
account of the Issuing Lender and the Participating Lenders, with respect to
each Standby or Commercial L/C issued for the account of the Company, a Standby
or Commercial L/C fee, as the case may be, equal to the Applicable Margin for
Revolving Credit Loans which are Eurodollar Loans (of which the Issuing Lender
shall retain for its own account, as the issuing bank and not on account of its
L/C Participating Interest therein, 1/4 of 1% per annum) on the daily average
amount available to be drawn under each Standby L/C in the case of a Standby
L/C and on the maximum face amount of each Commercial L/C in the case of a
Commercial L/C, in either case payable, in arrears, on the last day of each
fiscal quarter of the Company. The Administrative Agent will disburse any
Standby or Commercial L/C fees received pursuant to this subsection 3.9(a) to
the respective Lenders and the Issuing Lender promptly following the receipt of
any such fees in the case of a Standby L/C and, in the case of a Commercial
L/C, promptly following the end of the calendar month in which such Commercial
L/C fees were received. Notwithstanding the foregoing, the Company agrees to
pay standard issuance, amendment and negotiation fees to the Issuing Lender.
(b) For purposes of any payment of fees required pursuant to
this subsection 3.9, the Administrative Agent agrees to provide to the Company
a statement of any such fees to be so paid; provided that the failure by the
Administrative Agent to provide the Company with any such invoice shall not
relieve the Company of its obligation to pay such fees.
3.10 Letter of Credit Reserves. (a) If any Change in Law
shall either (i) impose, modify, deem or make applicable any reserve, special
deposit, assessment or similar requirement against letters of credit issued by
the Issuing Lender or (ii) impose on the Issuing Lender any other condition
regarding this Agreement (with respect to Letters of Credit) or any Letter of
Credit, and the result of any event referred to in clause (i) or (ii) above
shall be to increase the cost of the Issuing Lender of issuing or maintaining
any Letter of Credit (which increase in cost shall be the result of the Issuing
Lender's reasonable allocation of the aggregate of such cost increases
resulting from such events), then, upon demand by the Issuing Lender, the
Company shall immediately pay to the Issuing Lender, from time to time as
specified by the Issuing Lender, additional amounts which shall be sufficient
to compensate the Issuing Lender for such increased cost, together with
interest on each such amount from the date demanded until payment in full
thereof at a rate per annum equal to the
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rate applicable to Alternate Base Rate Loans pursuant to subsection 4.5(b).
The Company shall not be required to make any payments to the Issuing Lender
for any additional amounts pursuant to this subsection 3.10(a) unless the
Issuing Lender has given written notice to the Company of its intent to request
such payments prior to or within 60 days after the date on which the Issuing
Lender became entitled to claim such amounts. A certificate, setting forth in
reasonable detail the calculation of the amounts involved, submitted by the
Issuing Lender to the Company concurrently with any such demand by the Issuing
Lender, shall be conclusive, absent manifest error, as to the amount thereof.
(b) In the event that any Change in Law with respect to the
Issuing Lender shall, in the opinion of the Issuing Lender, require that any
obligation under any Letter of Credit be treated as an asset or otherwise be
included for purposes of calculating the appropriate amount of capital to be
maintained by the Issuing Lender or any corporation controlling the Issuing
Lender, and such Change in Law shall have the effect of reducing the rate of
return on the Issuing Lender's or such corporation's capital, as the case may
be, as a consequence of the Issuing Lender's obligations under such Letter of
Credit to a level below that which the Issuing Lender or such corporation, as
the case may be, could have achieved but for such Change in Law (taking into
account the Issuing Lender's or such corporation's policies, as the case may
be, with respect to capital adequacy) by an amount deemed by the Issuing Lender
to be material, then from time to time following notice by the Issuing Lender
to the Company of such Change in Law, within 15 days after demand by the
Issuing Lender, the Company shall pay to the Issuing Lender such additional
amount or amounts as will compensate the Issuing Lender or such corporation, as
the case may be, for such reduction. The Issuing Lender agrees that, upon the
occurrence of any event giving rise to the operation of paragraph (a) or (b) of
this subsection 3.10 with respect to the Issuing Lender, it will, if requested
by the Company and to the extent permitted by law or by the relevant
Governmental Authority, endeavor in good faith to avoid or minimize the
increase in costs or reduction in payments resulting from such event; provided,
however, that such avoidance or minimization can be made in such a manner that
the Issuing Lender, in its sole determination, suffers no economic, legal or
regulatory disadvantage. The Company shall not be required to make any
payments to the Issuing Lender for any additional amounts pursuant to this
subsection 3.10(b) unless the Issuing Lender has given written notice to the
Company of its intent to request such payments prior to or within 60 days after
the date on which the Issuing Lender became entitled to claim such amounts. A
certificate, in reasonable detail setting forth the calculation of the amounts
involved, submitted by the Issuing Lender to the Company concurrently with any
such demand by the Issuing Lender, shall be conclusive, absent manifest error,
as to the amount thereof.
(c) The Company and each Participating Lender agrees that the
provisions of the foregoing paragraphs (a) and (b) shall apply equally to each
Participating Lender in respect of its L/C Participating Interest in such
Letter of Credit, as if the references in such paragraphs and provisions
referred to, where applicable, such Participating Lender or, in the case of
paragraph (b), any corporation controlling such Participating Lender.
3.11 Further Assurances. The Company hereby agrees, from
time to time, to do and perform any and all acts and to execute any and all
further instruments reasonably
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requested by the Issuing Lender more fully to effect the purposes of this
Agreement and the issuance of Letters of Credit hereunder.
3.12 Obligations Absolute. The payment obligations of the
Company under this Agreement with respect to the Letters of Credit shall be
unconditional and irrevocable and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances, including, without limitation,
the following circumstances:
(i) the existence of any claim, set-off, defense or other
right which the Company or any of its Subsidiaries may have at any
time against any beneficiary, or any transferee, of any Letter of
Credit (or any Persons for whom any such beneficiary or any such
transferee may be acting), the Issuing Lender, the Administrative
Agent or any Lender, or any other Person, whether in connection with
this Agreement, any Credit Document, the transactions contemplated
herein, or any unrelated transaction;
(ii) any statement or any other document presented under
any Letter of Credit proving to be forged, fraudulent or invalid or
any statement therein being untrue or inaccurate in any respect;
(iii) payment by the Issuing Lender under any Letter of
Credit against presentation of a draft or certificate or other
document which does not comply with the terms of such Letter of Credit
or is insufficient in any respect, except where such payment
constitutes gross negligence or willful misconduct on the part of the
Issuing Lender; or
(iv) any other circumstances or happening whatsoever,
whether or not similar to any of the foregoing, except for any such
circumstances or happening constituting gross negligence or willful
misconduct on the part of the Issuing Lender.
3.13 Assignments. No Participating Lender's participation in
any Letter of Credit or any of its rights or duties hereunder shall be
subdivided, assigned or transferred (other than in connection with a transfer
of part or all of such Participating Lender's Revolving Credit Commitment in
accordance with subsection 11.6(c)) without the prior written consent of the
Issuing Lender, which consent will not be unreasonably withheld. Such consent
may be given or withheld without the consent or agreement of any other
Participating Lender. Notwithstanding the foregoing, a Participating Lender
may subparticipate its L/C Participating Interest without obtaining the prior
consent or agreement of the Issuing Lender.
3.14 Participations. Each Lender's obligation to purchase
participating interests pursuant to subsection 3.6 shall be absolute and
unconditional and shall not be affected by any circumstance, including, without
limitation, (i) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against the Issuing Lender, the Company or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of an
Event of Default; (iii) any adverse change in the condition (financial or
otherwise) of the Company; (iv) any breach of this Agreement by the Company or
any other
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Lender; or (v) any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing.
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS
4.1 Procedure for Borrowing. (a) The Company may borrow
under the Commitments on any Business Day, provided that, with respect to any
borrowing, the Company shall give the Administrative Agent irrevocable notice
(which notice must be received by the Administrative Agent prior to 2:00 p.m.
(or, with respect to Swing Line Loans, 3:00 p.m.), New York City time), (i)
three Business Days prior to the requested Borrowing Date if all or any part of
the Loans are to be Eurodollar Loans and (ii) one Business Day prior to the
requested Borrowing Date (or, in the case of Swing Line Loans and Loans made on
the Closing Date, on the requested Borrowing Date) if the borrowing is to be
solely of Alternate Base Rate Loans and specifying (A) the amount of the
borrowing, (B) whether such Loans are initially to be Eurodollar Loans or
Alternate Base Rate Loans or a combination thereof, (C) if the borrowing is to
be entirely or partly Eurodollar Loans, the length of the Interest Period for
such Eurodollar Loans and (D) whether the Loan is a Term Loan (with respect to
Loans made on the Closing Date), a Swing Line Loan or a Revolving Credit Loan;
provided, however, that the Loans made on the Closing Date shall be made
initially as Alternate Base Rate Loans. Upon receipt of such notice the
Administrative Agent shall promptly notify each Lender. Not later than 2:00
p.m., New York City time, on the Borrowing Date specified in such notice, each
Lender shall make available to the Administrative Agent at the office of the
Administrative Agent specified in subsection 11.2 (or at such other location as
the Administrative Agent may direct) an amount in immediately available funds
equal to the amount of the Loan to be made by such Lender (except that proceeds
of Swing Line Loans will be made available to the Company in accordance with
subsection 3.4(a)). Loan proceeds received by the Administrative Agent
hereunder shall promptly be made available to the Company by the Administrative
Agent's crediting the account of the Company, at the office of the
Administrative Agent specified in subsection 11.2, with the aggregate amount
actually received by the Administrative Agent from the Lenders and in like
funds as received by the Administrative Agent.
(b) Any borrowing of Eurodollar Loans hereunder shall be in
such amounts and be made pursuant to such elections so that, after giving
effect thereto, (i) the aggregate principal amount of all Eurodollar Loans
having the same Interest Period shall not be less than $2,000,000 or a whole
multiple of $1,000,000 in excess thereof and (ii) no more than sixteen Interest
Periods shall be in effect at any one time.
4.2 Conversion and Continuation Options. (a) Subject to
subsection 4.12, the Company may elect from time to time to convert Eurodollar
Loans into Alternate Base Rate Loans by giving the Administrative Agent
irrevocable notice of such election, to be received by the Administrative Agent
prior to 2:00 p.m., New York City time, at least three Business Days prior to
the proposed conversion date. The Company may elect from time to time to
convert all or a portion of the Alternate Base Rate Loans (other than Swing
Line Loans) then outstanding to Eurodollar Loans by giving the Administrative
Agent irrevocable notice of such election, to be received by the Administrative
Agent prior to 2:00 p.m., New York City
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time, at least three Business Days prior to the proposed conversion date,
specifying the Interest Period selected therefor, and, unless a Default or
Event of Default has occurred and is continuing and the Administrative Agent or
the Required Lenders have given written notice thereof to the Company, such
conversion shall be made on the requested conversion date or, if such requested
conversion date is not a Business Day, on the next succeeding Business Day.
Upon receipt of any notice pursuant to this subsection 4.2, the Administrative
Agent shall promptly notify each Lender thereof. All or any part of the
outstanding Loans (other than Swing Line Loans) may be converted as provided
herein, provided that partial conversions of Alternate Base Loans shall be in
the aggregate principal amount of $1,000,000 or a whole multiple of $100,000 in
excess thereof and the aggregate principal amount of the resulting Eurodollar
Loans outstanding in respect of any one Interest Period shall be at least
$2,000,000 or a whole multiple of $1,000,000 in excess thereof.
(b) Any Eurodollar Loans may be continued as such upon
the expiration of the then current Interest Period with respect thereto by the
Company giving notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection
1.1, of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan may be continued as such (i) when any Event of
Default has occurred and is continuing and the Administrative Agent or the
Required Lenders have, by written notice to the Company, determined that such a
continuation is not appropriate, (ii) if, after giving effect thereto,
subsection 4.1(b) would be contravened or (iii) after the date that is one
month prior to the Revolving Credit Termination Date (in the case of
continuations of Revolving Credit Loans) or the date of the final installment
of principal of the Term Loans, as applicable.
(c) Notwithstanding anything in this Agreement to the
contrary, unless otherwise agreed to by the Administrative Agent, no Loan shall
be made as, converted to or continued as a Eurodollar Loan during the period
commencing on the Closing Date and ending on the 33rd day following the Closing
Date; provided that all or a portion of the Loans made on the Closing Date may,
at the Company's option, subject to the other provisions of this Agreement, be
converted to Eurodollar Loans with an Interest Period of one month on or after
the third day following the Closing Date.
4.3 Changes of Commitment Amounts. (a) The Company shall
have the right, upon not less than three Business Days' notice to the
Administrative Agent, to terminate or, from time to time, permanently reduce
the Revolving Credit Commitments, subject to the provisions of this subsection
4.3. To the extent, if any, that the sum of the amount of the Revolving Credit
Loans, Swing Line Loans and L/C Obligations then outstanding and the amounts
available to be drawn under outstanding Letters of Credit exceeds the amount of
the Revolving Credit Commitments as then reduced, the Company shall be required
to make a prepayment equal to such excess amount, the proceeds of which shall
be applied first, to payment of the Swing Line Loans then outstanding, second,
to payment of the Revolving Credit Loans then outstanding, third, to payment of
any L/C Obligations then outstanding, and fourth, to cash collateralize any
outstanding Letters of Credit on terms reasonably satisfactory to the
Administrative Agent. Any such termination of the Revolving Credit Commitments
shall be accompanied by prepayment in full of the Revolving Credit Loans, Swing
Line Loans and L/C Obligations then outstanding and by cash
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collateralization of any outstanding Letters of Credit on terms reasonably
satisfactory to the Administrative Agent. Upon termination of the Revolving
Credit Commitments, any Letter of Credit then outstanding which has been so
cash collateralized shall no longer be considered a "Letter of Credit" as
defined in subsection 1.1 and any L/C Participating Interests heretofore
granted by the Issuing Lender to the Lenders in such Letter of Credit shall be
deemed terminated (subject to automatic reinstatement in the event that such
cash collateral is returned and the Issuing Lender is not fully reimbursed for
any such L/C Obligations) but the Letter of Credit fees payable under
subsection 3.9 shall continue to accrue to the Issuing Lender and the
Participating Lenders (or, in the event of any such automatic reinstatement, as
provided in subsection 3.9) with respect to such Letter of Credit until the
expiry thereof.
(b) In the case of termination of the Revolving Credit
Commitments, interest accrued on the amount of any prepayment relating thereto
and any unpaid commitment fee accrued hereunder shall be paid on the date of
such termination. Any such partial reduction of the Revolving Credit
Commitments shall be in an amount of $2,000,000, or a whole multiple of
$1,000,000 in excess thereof, and shall, in each case, reduce permanently the
amount of the Revolving Credit Commitments then in effect.
4.4 Optional and Mandatory Prepayments; Repayments of Term
Loans. (a) Subject to subsection 4.12, the Company may at any time and from
time to time prepay Loans, in whole or in part, without premium or penalty,
upon at least one Business Day's (or, in the case of Swing Line Loans, by 2:00
p.m., New York City time, on the same Business Day) irrevocable notice to the
Administrative Agent in the case of Alternate Base Rate Loans, and three
Business Days' irrevocable notice to the Administrative Agent in the case of
Eurodollar Loans, specifying the date and amount of prepayment and whether the
prepayment is of Revolving Credit Loans or Term Loans. Upon receipt of such
notice the Administrative Agent shall promptly notify each Lender thereof. If
such notice is given, the Company shall make such prepayment, and the payment
amount specified in such notice shall be due and payable, on the date specified
therein. Partial prepayments (i) of Term Loans shall be in an aggregate
principal amount equal to the lesser of (A) (I) $2,000,000, or a whole multiple
of $1,000,000 in excess thereof with respect to Eurodollar Loans or (II)
$1,000,000, or a whole multiple of $100,000 in excess thereof with respect to
Alternate Base Rate Loans and (B) the aggregate unpaid principal amount of the
Term Loans and (ii) of Revolving Credit Loans shall be in an aggregate
principal amount equal to the lesser of (A) (I) $2,000,000 or a whole multiple
of $1,000,000 in excess thereof with respect to Eurodollar Loans or (II)
$1,000,000, or a whole multiple of $100,000 in excess thereof with respect to
Alternate Base Rate Loans and (B) the aggregate unpaid principal amount of the
Revolving Credit Loans, as the case may be. Prepayments of the Term Loans
pursuant to this subsection 4.4(a) shall be applied to the remaining
installments thereof ratably according to the amounts of such installments.
(b) (i) Unless the Section 4.4 Lenders shall otherwise
agree, if Holdings, the Company or any of its Subsidiaries shall issue any
Capital Stock subsequent to the Closing Date, 50% of the Net Proceeds thereof
(excluding amounts provided by the Investors) shall be promptly applied toward
the prepayment of the Term Loans (applied to the remaining installments thereof
ratably according to the amounts thereof); provided, that Net Proceeds of such
issuance shall be deemed to be Net Proceeds of such issuance for purposes of
this subsection 4.4(b)(i) only after deducting therefrom the redemption or
repurchase or
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cancellation of the preferred stock of the Company held by Holdings (and the
concurrent redemption, repayment or repurchase by Holdings of the Holdings
Subordinated Debt with the proceeds of such repurchase, redemption or
cancellation) and the redemption of up to 35% of the Permanent Subordinated
Debt under the "equity clawback" provision thereof and, in each case, the
payment of any premium or penalties or accrued interest or dividends with
respect thereto.
(ii) Unless the Section 4.4 Lenders and the Company shall
otherwise agree, if the Company or any of its Subsidiaries shall incur or
permit the incurrence of any Indebtedness subsequent to the Closing Date (other
than Indebtedness permitted pursuant to subsections 8.1(b), (c), (d) (to the
extent the Net Proceeds of such Indebtedness are used to repay, redeem, retire
or repurchase the then outstanding Permanent Subordinated Debt in accordance
with subsection 8.1(d)), (e), (f), (g), (h), (i), (j), (k) and subordinated
Indebtedness provided by the Investors), 100% of the Net Proceeds thereof shall
be promptly applied toward the prepayment of the Loans and reduction of the
Commitments as set forth in clause (v) of this subsection 4.4(b).
(iii) Unless the Section 4.4 Lenders shall otherwise agree,
the Company or any of its Subsidiaries shall receive Net Proceeds from any
Asset Sale subsequent to the Closing Date, such Net Proceeds shall be promptly
applied toward the prepayment of the Loans and reduction of the Commitments as
set forth in clause (v) of this subsection 4.4(b); provided, that such Net
Proceeds need not be applied to the prepayment of the Loans and the reduction
of the Commitments until the earlier of the date that the aggregate amount of
Net Proceeds received by the Company or any of its Subsidiaries from any Asset
Sales exceeds $2,000,000 (and has not yet been applied to the prepayment of the
Loans and the reduction of the Commitments hereunder) and the date which is six
months after the last application of Net Proceeds pursuant to this subsection
4.4(b)(iii).
(iv) So long as there are any Term Loans outstanding,
unless the Section 4.4 Lenders and the Company shall otherwise agree, if there
shall be Excess Cash Flow as at the end of any fiscal year commencing with the
Company's fiscal year ending on February 1, 1998, 50% of such Excess Cash Flow,
less the portion of any Excess Cash Flow which has been previously applied
toward prepayments of the Term Loans pursuant to this clause (iv), shall be
applied toward prepayment of the Term Loans (applied to the remaining
installments thereof ratably according to the amounts thereof). Each such
prepayment shall be made not later than 120 days after the end of such fiscal
year.
(v) Except as otherwise provided in this subsection
4.4(b), prepayments made pursuant to this subsection 4.4(b) shall be applied by
the Company, first, to the prepayment of the Term Loans (applied to the
remaining installments thereof ratably according to the amounts thereof) and,
second, to reduce permanently the Revolving Credit Commitments. Any such
reduction of the Revolving Credit Commitments shall be accompanied by
prepayment of, first, the Swing Line Loans, second, the Revolving Credit Loans
and, third, the L/C Obligations to the extent, if any, that the sum of the
aggregate outstanding principal amount of Revolving Credit Loans, the aggregate
outstanding principal amount of all Swing Line Loans, the aggregate amount
available to be drawn under all outstanding Letters of Credit and the aggregate
outstanding amount of all L/C Obligations, in
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each case of all Lenders, exceeds the amount of the aggregate Revolving Credit
Commitments as so reduced, provided that if the aggregate principal amount of
Revolving Credit Loans, Swing Line Loans and L/C Obligations then outstanding
is less than the amount of such excess (because Letters of Credit constitute a
portion thereof), the Company shall, to the extent of the balance of such
excess, replace outstanding Letters of Credit and/or deposit an amount in cash
in a cash collateral account established for the benefit of the Lenders.
(vi) The Company shall give the Administrative Agent
(which shall promptly notify each Lender) at least one Business Day's notice of
each prepayment or mandatory reduction pursuant to this subsection 4.4(b)
setting forth the date and amount thereof. Except as otherwise may be agreed
by the Company and the Required Lenders, any prepayment of Loans pursuant to
this subsection 4.4 shall be applied, first, to any Alternate Base Rate Loans
then outstanding and the balance of such prepayment, if any, to the Eurodollar
Loans then outstanding; provided that prepayments of Eurodollar Loans, if not
on the last day of the Interest Period with respect thereto, shall, at the
Company's option, be prepaid subject to the provisions of subsection 4.12 or
the amount of such prepayment (after application to any Alternate Base Rate
Loans) shall be deposited with the Administrative Agent as cash collateral for
the Loans on terms reasonably satisfactory to the Administrative Agent and
thereafter shall be applied in the order of the Interest Periods next ending
most closely to the date such prepayment is required to be made and on the last
day of each such Interest Period. After such application, unless an Event of
Default shall have occurred and be continuing, any remaining interest earned on
such cash collateral shall be paid to the Company.
(c) The Term Loans shall be repaid in twelve consecutive
semi-annual installments each on the dates set forth below (each such day, an
"Installment Payment Date") in an aggregate amount equal to the amount
specified for each such Installment Payment Date, as such amounts may be
reduced pursuant to subsection 4.4(b):
Installment Payment Date Installment Amount
------------------------ ------------------
June 30, 1998 $500,000
December 31, 1998 $500,000
June 30, 1999 $500,000
December 31, 1999 $500,000
June 30, 2000 $500,000
December 31, 2000 $500,000
June 30, 2001 $23,000,000
December 31, 2001 $23,000,000
June 30, 2002 $31,500,000
December 31, 2002 $31,500,000
June 30, 2003 $31,500,000
October 31, 2003 $31,500,000
(d) Any and all amounts repaid on account of the Term Loans
pursuant to this subsection 4.4 or otherwise may not be reborrowed. Accrued
interest on the amount of any prepayments shall be paid on the Interest Payment
Date next succeeding the date of any
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partial prepayment and on the date on such prepayment in the case of a
prepayment in full of any Loans.
4.5 Interest Rates and Payment Dates. (a) Eurodollar Loans
shall bear interest for each day during each Interest Period applicable
thereto, commencing on (and including) the first day of such Interest Period
to, but excluding, the last day of such Interest Period, on the unpaid
principal amount thereof at a rate per annum equal to the Eurodollar Rate
determined for such Interest Period plus the Applicable Margin.
(b) Alternate Base Rate Loans shall bear interest for the
period from and including the date such Loans are made to, but excluding, the
maturity date thereof, or to, but excluding, the conversion date if such Loans
are earlier converted into Eurodollar Loans on the unpaid principal amount
thereof at a rate per annum equal to the Alternate Base Rate plus the
Applicable Margin.
(c) If all or a portion of (i) the principal amount of any of
the Loans or (ii) any interest payable thereon shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise) such Loan, if a
Eurodollar Loan, shall be converted into an Alternate Base Rate Loan at the end
of the then-current Interest Period for said Eurodollar Loan (which conversion
shall occur automatically and without need for compliance with the conditions
for conversion set forth in subsection 4.2), and any such overdue amount shall,
without limiting the rights of the Lenders under Section 9, bear interest
(which shall be payable on demand) at a rate per annum which is 2% above the
Alternate Base Rate plus the Applicable Margin (or, in the case of a Eurodollar
Loan, the Eurodollar Rate for the Interest Period plus the Applicable Margin
plus 2%, if higher) from the date of such non-payment until paid in full (as
well after as before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date and on the date of payment in full of the respective Loans and in
the case of the Revolving Credit Loans on date of termination of the Revolving
Credit Commitments.
4.6 Computation of Interest and Fees. (a) Interest in
respect of Alternate Base Rate Loans, at any time that the Alternate Base Rate
is determined by reference to the Prime Rate, and all fees hereunder shall be
calculated on the basis of a 365 (or 366 as the case may be) day year for the
actual days elapsed. Interest in respect of Eurodollar Loans and in respect of
Alternate Base Rate Loans, at any time that the Alternate Base Rate is
determined by reference to the Base CD Rate or the Federal Funds Effective
Rate, shall be calculated on the basis of a 360 day year for the actual days
elapsed. The Administrative Agent shall as soon as practicable notify the
Company and the Lenders of each determination of a Eurodollar Rate. Any change
in the interest rate on a Loan resulting from a change in the Alternate Base
Rate or the Eurocurrency Reserve Requirements shall become effective as of the
opening of business on the day on which such change in the Alternate Base Rate
is announced or such change in the Eurocurrency Reserve Requirements becomes
effective, as the case may be. The Administrative Agent shall as soon as
practicable notify the Company and the Lenders of the effective date and the
amount of each such change.
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(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Company and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Company,
deliver to the Company a statement showing the quotations used by the
Administrative Agent in determining the Eurodollar Rate.
(c) If at any time the Reference Lender shall cease to be
a Lender hereunder, such Lender shall cease to be the Reference Lender, and
then the Administrative Agent, upon Agreement with the Company, shall, by
notice to the Company and the Lenders, designate another Lender as reference
Lender.
(d) Each Reference Lender shall use its best efforts to
furnish quotations of rates to the Administrative Agent as contemplated hereby.
4.7 Certain Fees. The Company agrees to pay to the
Administrative Agent, for its own account, a non-refundable agent's fee, in the
amount per annum as set forth in the fee letter, dated as of November 17, 1997,
between Chase and the Company payable in advance on the Closing Date and
annually thereafter.
4.8 Inability to Determine Interest Rate. In the event that
the Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Company) that (a) by reason of circumstances
affecting the interbank eurodollar market, adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate for any Interest Period with respect
to (i) proposed Loans that the Company has requested be made as Eurodollar
Loans, (ii) any Eurodollar Loans that will result from the requested conversion
of all or part of the Alternate Base Rate Loans into Eurodollar Loans or (iii)
the continuation of any Eurodollar Loan as such for an additional Interest
Period, or (b) dollar deposits in the relevant amount and for the relevant
period with respect to any such Eurodollar Loan are not generally available to
the Lenders in their respective Eurodollar Lending Offices' interbank
eurodollar markets, the Administrative Agent shall forthwith give telecopy
notice of such determination, confirmed in writing, to the Company and the
Lenders at least one day prior to, as the case may be, the requested Borrowing
Date, the conversion date or the last day of such Interest Period. If such
notice is given (i) any requested Eurodollar Loans shall be made as Alternate
Base Rate Loans, (ii) any Alternate Base Rate Loans that were to have been
converted to Eurodollar Loans shall be continued as Alternate Base Rate Loans,
and (iii) any outstanding Eurodollar Loans shall be converted, on the last day
of the then current Interest Period applicable thereto, into Alternate Base
Rate Loans. Until such notice has been withdrawn by the Administrative Agent,
no further Eurodollar Loans shall be made and no Alternate Base Rate Loans
shall be converted to Eurodollar Loans.
4.9 Pro Rata Treatment and Payments. (a) Except to the
extent otherwise provided herein, each borrowing of Loans by the Company from
the Lenders and any reduction of the Commitments of the Lenders hereunder shall
be made pro rata according to the relevant Commitment Percentages of the
Lenders with respect to the Loans borrowed or the Commitments to be reduced.
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(b) Whenever any payment received by the Administrative Agent
under this Agreement or any Note or any Credit Document is insufficient to pay
in full all amounts then due and payable to the Administrative Agent and the
Lenders under this Agreement:
(i) If the Administrative Agent has not received a
Payment Sharing Notice (or, if the Administrative Agent has received a
Payment Sharing Notice but the Event of Default specified in such
Payment Sharing Notice has been cured or waived in accordance with the
provisions of this Agreement), such payment shall be distributed by
the Administrative Agent and applied by the Administrative Agent and
the Lenders in the following order: First, to the payment of fees and
expenses due and payable to the Administrative Agent under and in
connection with this Agreement and the other Credit Documents; Second,
to the payment of all expenses due and payable under subsection 11.5,
ratably among the Lenders in accordance with the aggregate amount of
such payments owed to each such Lender; Third, to the payment of fees
due and payable under subsections 3.2 and 3.9, ratably among the
Lenders in accordance with the Commitment Percentage of each Lender of
the Commitment for which such payment is owed and, in the case of an
Issuing Lender, the amount retained by such Issuing Lender for its own
account pursuant to subsection 3.9; Fourth, to the payment of interest
then due and payable on the Loans and on the L/C Obligations, ratably
in accordance with the aggregate amount of interest owed to each such
Lender; and Fifth, to the payment of the principal amount of the Loans
and the L/C Obligations which is then due and payable, ratably among
the Lenders in accordance with the aggregate principal amount owed to
each such Lender; or
(ii) If the Administrative Agent has received a Payment
Sharing Notice which remains in effect, all payments received by the
Administrative Agent under this Agreement or any Note shall be
distributed by the Administrative Agent and applied by the
Administrative Agent and the Lenders in the following order: First,
to the payment of all amounts described in clauses "First" through
"Third" of the foregoing clause (i), in the order set forth therein;
Second, to the payment of the interest accrued on all Loans and L/C
Obligations, regardless of whether any such amount is then due and
payable, ratably among the Lenders in accordance with the aggregate
accrued interest plus the aggregate principal amount owed to such
Lender; and Third, to the payment of the principal amount of all Loans
and L/C Obligations, regardless of whether any such amount is then due
and payable, ratably among the Lenders in accordance with the
aggregate principal amount owed to such Lender.
(c) If any Lender (a "Non-Funding Lender") has (x) failed to
make a Revolving Credit Loan required to be made by it hereunder, and the
Administrative Agent has determined that such Lender is not likely to make such
Revolving Credit Loan or (y) given notice to the Company or the Administrative
Agent that it will not make, or that it has disaffirmed or repudiated any
obligation to make, any Revolving Credit Loan, in each case by reason of the
provisions of the Financial Institutions Reform, Recovery and Enforcement Act
of 1989, as amended, or otherwise, (i) any payment made on account of the
principal of the Revolving Credit Loans outstanding shall be made as follows:
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(A) in the case of any such payment made on any date when and
to the extent that, in the determination of the Administrative Agent,
the Company would be able, under the terms and conditions hereof, to
reborrow the amount of such payment under the Commitments and to
satisfy any applicable conditions precedent set forth in Section 6 to
such reborrowing, such payment shall be made on account of the
outstanding Revolving Credit Loans held by the Lenders other than the
Non-Funding Lender pro rata according to the respective outstanding
principal amounts of the Revolving Credit Loans of such Lenders; and
(B) otherwise, such payment shall be made on account of the
outstanding Revolving Credit Loans held by the Lenders pro rata
according to the respective outstanding principal amounts of such
Revolving Credit Loans; and
(ii) any payment made on account of interest on the Revolving Credit Loans
shall be made pro rata according to the respective amounts of accrued and
unpaid interest due and payable on the Revolving Credit Loans with respect to
which such payment is being made. The Company agrees to give the
Administrative Agent such assistance in making any determination pursuant to
subparagraph (i)(A) of this paragraph as the Administrative Agent may
reasonably request. The Administrative Agent shall notify the Lenders of any
such determination, which shall be conclusive and binding on the Lenders.
(d) All payments (including prepayments) to be made by the
Company on account of principal, interest and fees shall be made without
set-off or counterclaim and shall be made to the Administrative Agent, for the
account of the Lenders at the Administrative Agent's office located at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in lawful money of the United States of
America and in immediately available funds. The Administrative Agent shall
promptly distribute such payments in accordance with the provisions of
subsection 4.9(b) promptly upon receipt in like funds as received. If any
payment hereunder (other than payments on Eurodollar Loans) would become due
and payable on a day other than a Business Day, such payment shall become due
and payable on the next succeeding Business Day and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension. If any payment on a Eurodollar Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day (and with respect to payments of
principal, interest thereon shall be payable at the then applicable rate during
such extension), unless the result of such extension would be to extend such
payment into another calendar month in which event such payment shall be made
on the immediately preceding Business Day.
(e) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make
the amount which would constitute its Commitment Percentage of such borrowing
available to the Administrative Agent, the Administrative Agent may assume that
such Lender is making such amount available to the Administrative Agent in
accordance with subsection 4.1 and the Administrative Agent may, in reliance
upon such assumption, make available to the Company thereof a corresponding
amount. If such amount is not made available to the Administrative Agent by
the required time on the Borrowing Date therefor, such Lender shall pay to the
Administrative Agent, on demand, such amount with interest thereon at a rate
equal to the
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daily average Federal Funds Effective Rate for the period until such Lender
makes such amount immediately available to the Administrative Agent. A
certificate of the Administrative Agent submitted to any Lender with respect to
any amounts owing under this subsection 4.9(e) shall be conclusive, absent
manifest error. If such Lender's Commitment Percentage of such borrowing is
not in fact made available to the Administrative Agent by such Lender within
three Business Days of such Borrowing Date, the Administrative Agent shall also
be entitled to recover such amount with interest thereon at the rate per annum
applicable to Alternate Base Rate Loans hereunder, on demand, from the Company,
without prejudice to any rights which the Company or the Administrative Agent
may have against such Lender hereunder. Nothing contained in this subsection
4.9 shall relieve any Lender which has failed to make available its ratable
portion of any borrowing hereunder from its obligation to do so in accordance
with the terms hereof.
(f) The failure of any Lender to make the Loan to be made by
it on any Borrowing Date shall not relieve any other Lender of its obligation,
if any, hereunder to make its Loan on such Borrowing Date, but no Lender shall
be responsible for the failure of any other Lender to make the Loan to be made
by such other Lender on such Borrowing Date.
(g) All payments and optional prepayments (other than
prepayments as set forth in subsection 4.11 with respect to increased costs) of
Eurodollar Loans hereunder shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, the aggregate principal
amount of all Eurodollar Loans with the same Interest Period shall not be less
than $2,000,000 or a whole multiple of $1,000,000 in excess thereof.
4.10 Illegality. Notwithstanding any other provision herein,
if any Change in Law occurring after the date that any lender becomes a Lender
party to this Agreement, shall make it unlawful for such Lender to make or
maintain Eurodollar Loans as contemplated by this Agreement, the commitment of
such Lender hereunder to make Eurodollar Loans or to convert all or a portion
of Alternate Base Rate Loans into Eurodollar Loans shall forthwith be suspended
until such time, if any, as such illegality shall no longer exist and such
Lender's Loans then outstanding as Eurodollar Loans, if any, shall be converted
automatically to Alternate Base Rate Loans for the duration of the respective
Interest Periods (or, if permitted by applicable law, at the end of such
Interest Periods) and all payments of principal which would otherwise be
applied to such Eurodollar Loans shall be applied instead to such Lender's
Alternate Base Rate Loans. The Company hereby agrees to pay any Lender,
promptly upon its demand, any amounts payable pursuant to subsection 4.12 in
connection with any conversion in accordance with this subsection 4.10 (such
Lender's notice of such costs, as certified in reasonable detail as to such
amounts to the Company through the Administrative Agent, to be conclusive
absent manifest error).
4.11 Requirements of Law. (a) In the event that any Change
in Law or compliance by any Lender with any request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority occurring after the date that any lender becomes a Lender party to
this Agreement:
(i) does or shall subject any such Lender or its
Eurodollar Lending Office to any tax of any kind whatsoever with
respect to this Agreement, any Note or any
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Eurodollar Loans made by it, or change the basis of taxation of
payments to such Lender or its Eurodollar Lending Office of principal,
the commitment fee, interest or any other amount payable hereunder
(except for (x) net income and franchise taxes imposed on the net
income of such Lender or its Eurodollar Lending Office by the
jurisdiction under the laws of which such Lender is organized or any
political subdivision or taxing authority thereof or therein, or by
any jurisdiction in which such Lender's Eurodollar Lending Office is
located or any political subdivision or taxing authority thereof or
therein, including changes in the rate of tax on the overall net
income of such Lender or such Eurodollar Lending Office, and (y) taxes
resulting from the substitution of any such system by another system
of taxation, provided that the taxes payable by Lenders subject to
such other system of taxation are not generally charged to borrowers
from such Lenders having loans or advances bearing interest at a rate
similar to the Eurodollar Rate);
(ii) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, or deposits or other liabilities in or for the
account of, advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of such Lender which are not
otherwise included in the determination of the Eurodollar Rate; or
(iii) does or shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase the cost to such Lender
or its Eurodollar Lending Office of making, converting, renewing or maintaining
advances or extensions of credit or to reduce any amount receivable hereunder,
in each case, in respect of its Eurodollar Loans, then, in any such case, the
Company shall promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender for such additional cost or reduced amount
receivable which such Lender deems to be material as determined by such Lender
with respect to such Eurodollar Loans, together with interest on each such
amount from the date demanded until payment in full thereof at a rate per annum
equal to the Alternate Base Rate plus 1%.
(b) In the event that any Change in Law occurring after the
date that any lender becomes a Lender party to this Agreement with respect to
any such Lender shall, in the opinion of such Lender, require that any
Commitment of such Lender be treated as an asset or otherwise be included for
purposes of calculating the appropriate amount of capital to be maintained by
such Lender or any corporation controlling such Lender, and such Change in Law
shall have the effect of reducing the rate of return on such Lender's or such
corporation's capital, as the case may be, as a consequence of such Lender's
obligations hereunder to a level below that which such Lender or such
corporation, as the case may be, could have achieved but for such Change in Law
(taking into account such Lender's or such corporation's policies, as the case
may be, with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time following notice by such Lender to the
Company of such Change in Law as provided in paragraph (c) of this subsection
4.11, within 15 days after demand by such Lender, the Company shall pay to such
Lender such additional amount or amounts as will compensate such Lender or such
corporation, as the case may be, for such reduction.
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(c) The Company shall not be required to make any payments to
any Lender for any additional amounts pursuant to this subsection 4.11 unless
such Lender has given written notice to the Company, through the Administrative
Agent, of its intent to request such payments prior to or within 60 days after
the date on which such Lender became entitled to claim such amounts. If any
Lender has notified the Company through the Administrative Agent of any
increased costs pursuant to paragraph (a) of this subsection 4.11, the Company
at any time thereafter may, upon at least three Business Days' notice to the
Administrative Agent (which shall promptly notify the Lenders thereof), and
subject to subsection 4.12, prepay (or convert into Alternate Base Rate Loans)
all (but not a part) of the Eurodollar Loans then outstanding. Each Lender
agrees that, upon the occurrence of any event giving rise to the operation of
paragraph (a) of this subsection 4.11 with respect to such Lender, it will, if
requested by the Company and to the extent permitted by law or by the relevant
Governmental Authority, endeavor in good faith to avoid or minimize the
increase in costs or reduction in payments resulting from such event
(including, without limitation, endeavoring to change its Eurodollar Lending
Office); provided, however, that such avoidance or minimization can be made in
such a manner that such Lender, in its sole determination, suffers no economic,
legal or regulatory disadvantage. If any Lender requests compensation from the
Company under this subsection 4.11, the Company may, by notice to such Lender
(with a copy to the Administrative Agent), suspend the obligation of such
Lender thereafter to make or continue Loans of the Type with respect to which
such compensation is requested, or to convert Loans of any other Type into
Loans of such Type, until the Requirement of Law giving rise to such request
ceases to be in effect, provided that such suspension shall not affect the
right of such Lender to receive the compensation so requested.
(d) Each Lender that is not a United States Person (as
defined in Section 7701(a)(30) of the Code) for federal income tax purposes
either (1) in the case of a Lender that is a "bank" within the meaning of
Section 881(c)(3)(A) of the Code, (i) represents to the Company (for the
benefit of the Company and the Administrative Agent) that under applicable law
and treaties no taxes are required to be withheld by the Company or the
Administrative Agent with respect to any payments to be made to such Lender in
respect of the Loans or the L/C Participating Interests, (ii) agrees to furnish
to the Company, with a copy to the Administrative Agent, either U.S. Internal
Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein
such Lender claims entitlement to complete exemption from U.S. federal
withholding tax on all interest payments hereunder) and (iii) agrees (for the
benefit of the Company and the Administrative Agent), to the extent it may
lawfully do so at such times, to provide the Company, with a copy to the
Administrative Agent, a new Form 4224 or Form 1001 upon the expiration or
obsolescence of any previously delivered form and comparable statements in
accordance with applicable U.S. laws and regulations and amendments duly
executed and completed by such Lender, and to comply from time to time with all
applicable U.S. laws and regulations with regard to such withholding tax
exemption or (2) in the case of a Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code, (i) represents to the Company (for
the benefit of the Company and the Administrative Agent) that it is not a bank
within the meaning of Section 881(c)(3)(A) of the Code, (ii) agrees to furnish
to the Company, with a copy to the Administrative Agent, (A) a certificate
substantially in the form of Exhibit K hereto (any such certificate, a
"Subsection 4.11(d)(2) Certificate") and (B) two accurate and complete original
signed copies of Internal Revenue Service Form W-8, certifying to such Lender's
legal
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entitlement at the Closing Date to an exemption from U.S. withholding tax under
the provisions of Section 881(c) of the Code with respect to all payments to be
made under this Agreement, and (iii) agrees, to the extent legally entitled to
do so, upon reasonable request by the Company, to provide to the Company (for
the benefit of the Company and the Administrative Agent) such other forms as
may be required in order to establish the legal entitlement of such Lender to
an exemption from withholding with respect to payments under this Agreement.
Notwithstanding any provision of this subsection 4.11 to the contrary, the
Company shall have no obligation to pay any amount to or for the account of any
Lender (or the Eurodollar Lending Office of any Lender) on account of any taxes
pursuant to this subsection 4.11, to the extent that such amount results from
(i) the failure of any Lender to comply with its obligations pursuant to this
subsection 4.11, (ii) any representation or warranty made or deemed to be made
by any Lender pursuant to this subsection 4.11(d) proving to have been
incorrect, false or misleading in any material respect when so made or deemed
to be made or (iii) any Change in Law or compliance by any Lender with any
request or directive (whether or not having the force of law) from any central
bank or other Governmental Authority, the effect of which would be to subject
to any taxes any payment made pursuant to this Agreement to any Lender making
the representation and covenants set forth in subsection 4.11(d)(2), which
payment would not be subject to such taxes were such Lender eligible to make
and comply with, and actually made and complied with, the representation and
covenants set forth in subsection 4.11(d)(1) hereinabove.
(e) A certificate in reasonable detail as to any amounts
submitted by such Lender, through the Administrative Agent, to the Company,
shall be conclusive in the absence of manifest error. The covenants contained
in this subsection 4.11 shall survive the termination of this Agreement and
repayment of the Loans.
4.12 Indemnity. The Company agrees to indemnify each Lender
and to hold such Lender harmless from any loss or expense (but without
duplication of any amounts payable as default interest) which such Lender may
sustain or incur as a consequence of (a) default by the Company in payment of
the principal amount of or interest on any Eurodollar Loans of such Lender,
including, but not limited to, any such loss or expense arising from interest
or fees payable by such Lender to lenders of funds obtained by it in order to
make or maintain its Eurodollar Loans hereunder, (b) default by the Company in
making a borrowing after the Company has given a notice in accordance with
subsection 4.1 or in making a conversion of Alternate Base Rate Loans to
Eurodollar Loans or in continuing Eurodollar Loans as such, in either case,
after the Company has given notice in accordance with subsection 4.2, (c)
default by the Company in making any prepayment after the Company has given a
notice in accordance with subsection 4.4 or (d) a payment or prepayment of a
Eurodollar Loan or conversion (including without limitation, a conversion
pursuant to subsection 4.10) of any Eurodollar Loan into an Alternate Base Rate
Loan, in either case on a day which is not the last day of an Interest Period
with respect thereto, including, but not limited to, any such loss or expense
arising from interest or fees payable by such Lender to lenders of funds
obtained by it in order to maintain its Eurodollar Loans hereunder (but
excluding loss of profit). This covenant shall survive termination of this
Agreement and repayment of the Loans.
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4.13 Repayment of Loans; Evidence of Debt. (a) The Company
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender (i) the then unpaid principal amount of each Revolving
Credit Loan of such Lender on the Revolving Credit Termination Date, (ii) the
principal amount of the Term Loan of such Lender, in twelve consecutive
installments, payable on each Installment Payment Date (or the then unpaid
principal amount of such Term Loan, or the date that the Term Loans become due
and payable pursuant to Section 9 and on the Maturity Date and (iii) the then
unpaid principal amount of the Swing Line Loans of the Swing Line Lender on the
Revolving Credit Termination Date. The Company hereby further agrees to pay
interest on the unpaid principal amount of the Loans from time to time
outstanding from the date hereof until payment in full thereof at the rates per
annum, and on the dates, set forth in subsection 4.5.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Company to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to subsection 11.6(d), and a subaccount therein for each Lender, in
which shall be recorded (i) the amount of each Revolving Credit Loan and Term
Loan made hereunder, the Type thereof and each Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Company to each Lender hereunder and (iii) both
the amount of any sum received by the Administrative Agent hereunder from the
Company and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 4.13(b) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Company therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Company to repay (with applicable interest) the Loans made to
such Company by such Lender in accordance with the terms of this Agreement.
(e) The Company agrees that, upon the request to the
Administrative Agent by any Lender and receipt by the Company of any notes
issued to such Lender under the Existing Credit Agreement, the Company will
execute and deliver to such Lender (i) a promissory note of the Company
evidencing the Revolving Credit Loans of such Lender, substantially in the form
of Exhibit A with appropriate insertions as to date and principal amount (a
"Revolving Credit Note"), and/or (ii) a promissory note of the Company
evidencing the Term Loan of such Lender, substantially in the form of Exhibit B
with appropriate insertions as to date and principal amount (a "Term Loan
Note"), and/or (iii) in the case of the Swing Line Lender, a promissory note of
the Company evidencing the Swing Line Loans of the Swing Line Lender,
substantially in the form of Exhibit C with appropriate insertions as to date
and principal amount (the "Swing Line Note ").
4.14 Replacement of Lenders. In the event any Lender or the
Issuing Lender exercises its rights pursuant to subsection 4.10 or requests
payments pursuant to subsections
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3.10 or 4.11, the Company may require, at the Company's expense and subject to
subsection 4.12, such Lender or the Issuing Lender to assign, at par plus
accrued interest and fees, without recourse (in accordance with subsection
11.6) all of its interests, rights and obligations hereunder (including all of
its Commitments and the Loans and other amounts at the time owing to it
hereunder and its Notes and its interest in the Letters of Credit) to a bank,
financial institution or other entity specified by the Company, provided that
(i) such assignment shall not conflict with or violate any law, rule or
regulation or order of any court or other Governmental Authority, (ii) the
Company shall have received the written consent of the Administrative Agent,
which consent shall not be unreasonably withheld, to such assignment, (iii) the
Company shall have paid to the assigning Lender or the Issuing Lender all
monies other than principal, interest and fees accrued and owing hereunder to
it (including pursuant to subsections 3.10, 4.10 and 4.11) and (iv) in the case
of a required assignment by the Issuing Lender, the Letters of Credit shall be
canceled and returned to the Issuing Lender.
SECTION 5. REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Agreement
and to make the Loans and to induce the Issuing Lender to issue, and the
Participating Lenders to participate in, the Letters of Credit, the Company
hereby represents and warrants to each Lender and the Administrative Agent, as
of the Closing Date and as of the making of any extension of credit hereunder:
5.1 Financial Condition. (a) The consolidated balance sheet
of the Company and its consolidated Subsidiaries as at February 2, 1997 and the
related consolidated statement of operations for the fiscal year ended on such
date, audited by Coopers & ▇▇▇▇▇▇▇ L.L.P., or any successor thereto, a copy of
which has heretofore been furnished to each Lender, present fairly in
accordance with GAAP the consolidated financial condition of the Company and
its consolidated Subsidiaries as at such date, and the consolidated results of
their operations and their consolidated cash flows for the fiscal year then
ended. All such financial statements have been prepared in accordance with
GAAP applied consistently throughout the periods involved (except as approved
by such accountants and as disclosed therein). Neither the Company nor any of
its consolidated Subsidiaries had, at the date of the most recent balance sheet
referred to above, any material Contingent Obligation, contingent liability or
liability for taxes, or any long-term lease or unusual forward or long-term
commitment, including, without limitation, any material interest rate or
foreign currency swap or exchange transaction, which is not reflected in the
foregoing statements or in the notes thereto or expressly permitted to be
incurred hereunder.
(b) The unaudited consolidated balance sheets of the Company
as at August 3, 1997, certified by a Responsible Officer of the Company, copies
of which have heretofore been furnished to each Lender, present fairly in
accordance with GAAP the financial position of the Company and its consolidated
Subsidiaries as at such dates. Such balance sheets, including the related
schedules and notes thereto, have been prepared in accordance with GAAP (except
as approved by such Responsible Officer and disclosed therein). The Company
and its consolidated Subsidiaries did not have at the date of such balance
sheets, any material Contingent Obligation, contingent liability or liability
for taxes, or any long-term
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lease or unusual forward or long-term commitment, including, without
limitation, any interest rate or foreign currency exchange transaction, which
is not reflected in such balance sheets or in the notes thereto. During the
period from August 3, 1997 to the Closing Date, no dividends or other
distributions have been declared, paid or made upon the Capital Stock of the
Company or any of its consolidated Subsidiaries nor has any of the Capital
Stock of the Company or any of its consolidated Subsidiaries been redeemed,
retired, purchased or otherwise acquired for value by the Company or any of its
consolidated Subsidiaries, respectively, except as permitted by subsection
8.11.
(c) The unaudited consolidated pro forma balance sheet of the
Company and its consolidated Subsidiaries as at the Closing Date, certified by
a Responsible Officer of the Company (the "Pro Forma Balance Sheet"), a copy of
which has heretofore been furnished to each Lender, is the unaudited balance
sheet of the Company and its consolidated Subsidiaries, adjusted to give effect
(as if such events had occurred on such date, but excluding any purchase
accounting adjustments) to (i) the Transaction, (ii) and the issuance of the
Letters of Credit to be incurred or issued, as the case may be, on the Closing
Date and (iii) the incurrence of all Indebtedness that the Company and its
consolidated Subsidiaries expects to incur, and the payment of all amounts the
Company and its consolidated Subsidiaries expects to pay, in connection with
the Transaction. The Pro Forma Balance Sheet, together with the notes thereto,
was prepared based on good faith assumptions in accordance with GAAP, excluding
any purchase accounting adjustments, and is based on the best information
available to the Company and its consolidated Subsidiaries as of the date of
delivery thereof, and reflects on a pro forma basis the financial position of
the Company and its consolidated Subsidiaries as of the Closing Date as
adjusted, as described above, assuming that the events specified in the
preceding sentence had actually occurred at the Closing Date.
5.2 No Change. Since February 2, 1997, (a) there has been no
change, and (as of the Closing Date only) no development or event, which has
had or could reasonably be expected to have a material adverse effect on the
business, assets, condition (financial or otherwise) or results of operations
of the Company and its Subsidiaries taken as a whole and (b) no dividends or
other distributions have been declared, paid or made upon the Capital Stock of
the Company nor has any of the Capital Stock of the Company been redeemed,
retired, repurchased or otherwise acquired for value by the Company or any of
its Subsidiaries, except as permitted by subsection 8.11.
5.3 Corporate Existence; Compliance with Law. Each of the
Company and its Subsidiaries (a) is a corporation duly organized and validly
existing under the laws of the jurisdiction of its incorporation, (b) has full
corporate power and authority and possesses all governmental franchises,
licenses, permits, authorizations and approvals necessary to enable it to use
its corporate name and to own, lease or otherwise hold its properties and
assets and to carry on its business as presently conducted other than such
franchises, licenses, permits, authorizations and approvals the lack of which,
individually or in the aggregate, would not have a material adverse effect on
the business, assets, condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries, taken as a whole, (c) is duly
qualified and in good standing to do business in each jurisdiction in which the
nature of its business or the ownership, leasing or holding of its properties
makes such qualification necessary, except such jurisdictions where the failure
so to qualify would not have a material
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adverse effect on the business, assets, condition (financial or otherwise) or
results of operations of the Company and its Subsidiaries, taken as a whole,
and (d) except as disclosed in the Environmental Reports, is in compliance with
all applicable statutes, laws, ordinances, rules, orders, permits and
regulations of any governmental authority or instrumentality, domestic or
foreign (including, without limitation, those related to Hazardous Materials
and substances), except where noncompliance would not be reasonably likely to
have a material adverse effect on the business, assets, condition (financial or
otherwise) or results of operations of the Company and its Subsidiaries, taken
as a whole. Except as disclosed in the Environmental Reports, none of the
Company or any of its Subsidiaries has received any written communication from
a Governmental Authority that alleges that the Company or any of its
Subsidiaries is not in compliance, in all material respects, with all material
federal, state, local or foreign laws, ordinances, rules and regulations.
5.4 Corporate Power; Authorization. Each of the Company and
its Subsidiaries has the corporate power and authority to make, deliver and
perform each of the Credit Documents to which it is a party, and the Company
has the corporate power and authority and legal right to borrow hereunder and
to have Letters of Credit issued for its account hereunder. Each of the
Company and its Subsidiaries has taken all necessary corporate action to
authorize the execution, delivery and performance of each of the Credit
Documents to which it is or will be a party and the Company has taken all
necessary corporate action to authorize the borrowings hereunder and the
issuance of Letters of Credit for its account hereunder. No consent or
authorization of, or filing with, any Person (including, without limitation,
any Governmental Authority) is required in connection with the execution,
delivery or performance by the Company or any of its Subsidiaries, or for the
validity or enforceability against the Company or any of its Subsidiaries, of
any Credit Document except for consents, authorizations and filings which have
been obtained or made and are in full force and effect and except (i) such
consents, authorizations and filings, the failure to obtain or perform (x)
which would not have a material adverse effect on the business, assets,
condition (financial or otherwise) or results of operations of the Company and
its Subsidiaries taken as a whole and (y) which would not adversely affect the
validity or enforceability of any of the Credit Documents or the rights or
remedies of the Administrative Agent or the Lenders thereunder and (ii) such
filings as are necessary to perfect the Liens of the Lenders created pursuant
to this Agreement and the Security Documents.
5.5 Enforceable Obligations. This Agreement and the Purchase
Agreement have been, and each of the other Credit Documents and any other
agreement to be entered into by any Credit Party pursuant to the Purchase
Agreement will be, duly executed and delivered on behalf of such Credit Party
that is party thereto. The Purchase Agreement has been duly executed and
delivered, to the best knowledge of the Company, on behalf of the other parties
thereto. This Agreement constitutes, and each of the other Credit Documents
and any other agreement to be entered into by any Credit Party pursuant to the
Purchase Agreement will constitute upon execution and delivery, the legal,
valid and binding obligation of such Credit Party, and is enforceable against
such Credit Party in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws
affecting creditors' rights generally and by general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law). The Purchase Agreement constitutes the legal, valid and binding
obligation of, to the best
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knowledge of the Company, the parties thereto enforceable against such Persons
in accordance with its terms, except, in each case, as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws
affecting creditors' rights generally and by general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
5.6 No Legal Bar. The execution, delivery and performance of
each Credit Document, the incurrence or issuance of and use of the proceeds of
the Loans and of drawings under the Letters of Credit and the transactions
contemplated by the Purchase Agreement and the Credit Documents, (a) will not
violate any Requirement of Law or any Contractual Obligation applicable to or
binding upon the Company or any Subsidiary of the Company or any of their
respective properties or assets, in any manner which, individually or in the
aggregate, (i) would have a material adverse effect on the ability of the
Company or any such Subsidiary to perform its obligations under the Credit
Documents, the Purchase Agreement, or any other agreement to be entered into
pursuant to the Purchase Agreement to which it is a party, (ii) would give rise
to any liability on the part of the Administrative Agent or any Lender or (iii)
would have a material adverse effect on the business, assets, condition
(financial or otherwise) or results of operations of the Company and its
Subsidiaries taken as a whole, and (b) will not result in the creation or
imposition of any Lien on any of its properties or assets pursuant to any
Requirement of Law applicable to it, as the case may be, or any of its
Contractual Obligations, except for the Liens arising under the Security
Documents.
5.7 No Material Litigation. No litigation by, investigation
known to the Company by, or proceeding of, any Governmental Authority is
pending against the Company or any of its Subsidiaries (including after giving
effect to the Transaction) with respect to the validity, binding effect or
enforceability of the Purchase Agreement, any Credit Document, the Loans made
hereunder, the use of proceeds thereof, or of any drawings under a Letter of
Credit and the other transactions contemplated hereby. No lawsuits, claims,
proceedings or investigations pending or, to the best knowledge of the Company,
threatened as of the Closing Date against or affecting the Company or any
Subsidiary of the Company or any of their respective properties, assets,
operations or businesses (including after giving effect to the Transaction) in
which there is a probability of an adverse determination, is reasonably likely,
if adversely decided, to have a material adverse effect on the business,
assets, condition (financial or otherwise) or results of operations of the
Company and its Subsidiaries taken as a whole.
5.8 Investment Company Act. Neither the Company nor any
Subsidiary of the Company is an "investment company" or a company "controlled"
by an "investment company" (as each of the quoted terms is defined or used in
the Investment Company Act of 1940, as amended).
5.9 Federal Regulation. No part of the proceeds of any of
the Loans or any drawing under a Letter of Credit will be used for any purpose
which violates the provisions of Regulation G, T, U or X of the Board. Neither
the Company nor any of its Subsidiaries is engaged or will engage, principally
or as one of its important activities, in the business of
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extending credit for the purpose of "purchasing" or "carrying" any "margin
stock" within the respective meanings of each of the quoted terms under said
Regulation U.
5.10 No Default. The Company and each of its Subsidiaries
have performed all material obligations required to be performed by them under
their respective Contractual Obligations (including after giving effect to the
Transaction) and they are not (with or without the lapse of time or the giving
of notice, or both) in breach or default in any respect thereunder, except to
the extent that such breach or default would not have a material adverse effect
on the business, assets, condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries taken as a whole. Neither the
Company nor any of its Subsidiaries (including after giving effect to the
Transaction) is in default under any material judgment, order or decree of any
Governmental Authority domestic or foreign, applicable to it or any of its
respective properties, assets, operations or business, except to the extent
that any such defaults would not, in the aggregate, have a material adverse
effect on the business, assets, condition (financial or otherwise) or results
of operations of the Company and its Subsidiaries taken as a whole.
5.11 Taxes. Each of the Company and its Subsidiaries
(including after giving effect to the Transaction) has filed or caused to be
filed all material tax returns which, to the best knowledge of the Company, are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any the amount of which is currently being
contested in good faith by appropriate proceedings and with respect to which
reserves (or other sufficient provisions) in conformity with GAAP have been
provided on the books of the Company or its Subsidiaries (including after
giving effect to the Transaction), as the case may be); no tax Lien has been
filed, and, to the best knowledge of the Company, no written claim is being
asserted, with respect to any such taxes, fees or other charges.
5.12 Subsidiaries. As of the Closing Date, the only
Subsidiaries of the Company are those listed on Schedule 5.12. On the Closing
Date and at all times prior to any occurrence of an IPO pursuant to which the
Capital Stock of the Company is sold in a public offering, Holdings owns 100%
of the issued and outstanding Capital Stock of the Company.
5.13 Ownership of Property; Liens. As of the Closing Date
and as of the making of any extension of credit hereunder (subject to transfers
and dispositions of property permitted under subsection 8.5) each of the
Company and its Subsidiaries has good and valid title to all of its material
assets (other than real property or interests in real property) in each case
free and clear of all mortgages, liens, security interests or encumbrances of
any nature whatsoever except Permitted Liens. With respect to real property or
interests in real property, as of the Closing Date, each of the Company and its
Subsidiaries has (i) fee title to all of the real property listed on Schedule
5.13 under the heading "Fee Properties" (each, a "Fee Property"), and (ii) good
and valid title to the leasehold estates in all of the real property leased by
it and listed on Schedule 5.13 under the heading "Leased Properties" (each, a
"Leased Property"), in each case free and clear of all mortgages, liens,
security interests, easements, covenants, rights-of-way and other similar
restrictions of any nature whatsoever,
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except Permitted Liens. The Fee Properties and the Leased Properties
constitute, as of the Closing Date, all of the real property owned in fee or
leased by the Company and its Subsidiaries.
5.14 ERISA. The "amount of unfunded benefit liabilities"
(within the meaning of Section 4001(a)(18) of ERISA) of any Single Employer
Plan of the Company or any Commonly Controlled Entity would not result in a
material liability to the Company if any or all such Single Employer Plans were
terminated. None of the Company, any Subsidiary of the Company or any Commonly
Controlled Entity would be liable for any amount pursuant to Sections 4063 or
4064 of ERISA, if any Single Employer Plan were to terminate. Neither the
Company nor any Commonly Controlled Entity has been involved in any transaction
that would cause the Company to be subject to material liability with respect
to a Single Employer Plan to which the Company or any Commonly Controlled
Entity contributed or was obligated to contribute during the six-year period
ending on the date this representation is made under Sections 4062 or 4069 of
ERISA. Neither the Company nor any Commonly Controlled Entity has incurred any
material liability under Title IV of ERISA which could become or remain a
material liability of the Company after the Closing Date and the consummation
of the Transaction. None of the Company, any Subsidiary of the Company, or, to
the best knowledge of the Company, any director, officer or employee thereof,
or any of the Plans or any trust created thereunder, or any fiduciary thereof,
has engaged in a transaction or taken any other action or omitted to take any
action involving any Plan which could constitute a prohibited transaction
within the meaning of Section 406 of ERISA which is not otherwise exempted and
which would result in a material liability to the Company, or would cause the
Company to be subject to either a material liability or material civil penalty
assessed pursuant to Sections 409 or 502(i) or (l) of ERISA or a material tax
imposed pursuant to Sections 4975 or 4976 of the Code. Each of the Plans (to
the best knowledge of the Company with respect to any Multiemployer Plan) has
been operated and administered in all material respects in accordance with
applicable laws, including but not limited to ERISA and the Code. There are no
material pending or, to the best knowledge of the Company, threatened claims by
or on behalf of any of the Plans or any fiduciary, by any employee or
beneficiary covered under any such Plan, or otherwise involving any such Plan
or fiduciary for which the Company could have any material liability (other
than routine claims for benefits). To the best knowledge of the Company, no
condition exists, and no event has occurred with respect to any Multiemployer
Plan which presents a material risk of a complete or partial withdrawal under
Subtitle E of Title IV of ERISA for which the Company could have any material
liability, nor has the Company or any Commonly Controlled Entity been notified
that any such Multiemployer Plan is insolvent or in reorganization within the
meaning of Section 4241 of ERISA. Neither the Company nor any Commonly
Controlled Entity nor any Subsidiary has been a party to any transaction or
agreement to which the provisions of Section 4204 of ERISA were applicable (a
"4204 Agreement"). None of the Company, or any Commonly Controlled Entity or
any of their respective Subsidiaries is obligated to contribute to a
Multiemployer Plan, on behalf of any current or former employee of the Company,
any Commonly Controlled Entity or such Subsidiary. The liability to which the
Company, any Commonly Controlled Entity or any of their respective Subsidiaries
would become subject under ERISA if all such Persons were to withdraw
completely from all Plans on the Closing Date (after giving effect to the
Transaction) is not in excess of $2,000,000. None of the Plans or any trust
established thereunder has incurred any "accumulated funding deficiency" (as
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defined in Section 302 of ERISA and Section 412 of the Code), whether or not
waived, as of the last day of the most recent fiscal year of each of the Plans.
No contribution failure has occurred with respect to any Plan sufficient to
give rise to a lien under Section 302(f) of ERISA.
5.15 Collateral Documents. (a) Upon execution and delivery
thereof by the parties thereto, each of the Pledge Agreements will be effective
to create in favor of the Administrative Agent, for the ratable benefit of the
Lenders, a legal, valid and enforceable security interest in the pledged stock
described therein and, when stock certificates representing or constituting the
pledged stock described in each of the Pledge Agreements are delivered to the
Administrative Agent, such security interest shall, subject to the existence of
Permitted Liens, constitute a perfected first lien on, and security interest
in, all right, title and interest of the pledgor party thereto in the pledged
stock described therein.
(b) Upon execution and delivery thereof by the parties
thereto, each of the Security Agreements will be effective to create in favor
of the Administrative Agent, for the ratable benefit of the Lenders, a legal,
valid and enforceable security interest in the collateral described therein and
Uniform Commercial Code financing statements have been filed in each of the
jurisdictions listed on Schedule 5.15(b), or arrangements have been made for
such filing in such jurisdictions, and upon such filing, and upon the taking of
possession by the Administrative Agent of any such collateral the security
interests in which may be perfected only by possession, such security interests
will, subject to the existence of Permitted Liens, constitute perfected first
liens on, and security interests in, all right, title and interest of the
debtor party thereto in the collateral described therein, except to the extent
that a security interest cannot be perfected therein by the filing of a
financing statement or the taking of possession under the Uniform Commercial
Code of the relevant jurisdiction.
5.16 Copyrights, Permits, Trademarks and Licenses. Schedule
5.16 sets forth a true and complete list of all material trademarks (registered
or unregistered), trade names, service marks and copyrights and applications
therefor owned, used or filed by or licensed to the Company and its
Subsidiaries (after giving effect to the Transaction) and, with respect to
registered trademarks (if any), contains a list of all jurisdictions in which
such trademarks are registered or applied for and all registration and
application numbers. Except as disclosed on Schedule 5.16, the Company or a
Subsidiary (after giving effect to the Transaction) owns or has the right to
use, without payment to any other party, trademarks (registered or
unregistered), trade names, service marks, copyrights and applications therefor
referred to in such Schedule. To the best knowledge of the Company, no claims
are pending by any Person with respect to the ownership, validity,
enforceability or the Company's or any Subsidiary's use of any such trademarks
(registered or unregistered), trade names, service marks, copyrights, or
applications therefor, challenging or questioning the validity or effectiveness
of any of the foregoing, in any jurisdiction, domestic or foreign.
5.17 Environmental Matters. Except as set forth in the
Environmental Reports and except to the extent that the facts and circumstances
giving rise to the failure of any of the following to be true and correct would
not be reasonably likely to have a material adverse effect on the business,
assets, condition (financial or otherwise) or results of operations of the
Company and its Subsidiaries taken as a whole:
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(a) To the best knowledge of the Company, no parcel of real
property owned or operated by the Company or any of its Subsidiaries contains,
and has not previously contained, in, on or under including, without
limitation, the soil and groundwater thereunder, any Hazardous Materials in
amounts or concentrations that constitute or constituted a material violation
of, or could reasonably give rise to material liability under, Environmental
Laws.
(b) To the best knowledge of the Company, each parcel of real
property owned or operated by the Company or any of its Subsidiaries and all
operations and facilities at such properties taken as a whole are in material
compliance with all Environmental Laws, and there is no contamination or
violation of any Environmental Law which could materially interfere with the
continued operation of, or materially impair the fair saleable value of, the
such property taken as a whole.
(c) To the best knowledge of the Company, neither the Company
nor any of its Subsidiaries has received or is aware of any complaint, notice
of violation, alleged violation, or notice of investigation or of potential
liability under Environmental Laws with regard to any parcel of real property
owned or operated by the Company or any of its Subsidiaries or the operations
of the Company or its Subsidiaries, nor does the Company or any of its
Subsidiaries have knowledge that any such action is being contemplated,
considered or threatened.
(d) To the best knowledge of the Company, Hazardous Materials
have not been generated, treated, stored, disposed of, at, on or under any
parcel of real property owned or operated by the Company or any of its
Subsidiaries, nor have any Hazardous Materials been transported from such
properties, in material violation of or in a manner that could reasonably give
rise to material liability under any Environmental Laws.
(e) There are no governmental administrative actions or
judicial proceedings pending or, to the best knowledge of the Company and its
Subsidiaries, threatened, under any Environmental Law to which the Company or
any of its Subsidiaries is a party with respect to any parcel of real property
owned or operated by the Company or any of its Subsidiaries, nor are there any
consent decrees or other decrees, consent orders, administrative orders or
other orders, or other administrative or judicial requirements, other than
permits authorizing operations at facilities at the Mortgaged Property,
outstanding under any Environmental Law with respect to such properties.
5.18 Accuracy and Completeness of Information. The factual
statements contained in the financial statements referred to in subsection
5.1(a), the Credit Documents, the Purchase Agreement and any other certificates
or documents furnished or to be furnished to the Administrative Agent or the
Lenders from time to time in connection with this Agreement, taken as a whole,
do not and will not, to the best knowledge of the Company, as of the date when
made, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained therein not
misleading in light of the circumstances in which the same were made, all
except as otherwise qualified herein or therein, such knowledge qualification
being given only with respect to factual statements made by Persons other than
the Company or any of its Subsidiaries.
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SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Initial Loans and Letters of Credit. The
obligation of each Lender to make its Loans and the obligation of the Issuing
Lender to issue any Letter of Credit on the Closing Date are subject to the
satisfaction, or waiver by such Lender, immediately prior to or concurrently
with the making of such Loans or the issuance of such Letters of Credit, as the
case may be, of the following conditions:
(a) Agreement; Notes. The Administrative Agent shall have
received (w) a counterpart of this Agreement for each Lender duly
executed and delivered by a duly authorized officer of the Company,
(x) for the account of each Revolving Credit Lender (which has
surrendered any notes held by such Lender in connection with the
Existing Credit Agreement) requesting the same pursuant to subsection
4.13, a Revolving Credit Note of the Company conforming to the
requirements hereof and executed by a duly authorized officer of the
Company, (y) for the account of each Lender (which has surrendered any
notes held by such Lender in connection with the Existing Credit
Agreement) holding a Term Loan and requesting the same pursuant to
subsection 4.13, a Term Loan Note of the Company conforming to the
requirements hereof and executed by a duly authorized officer of the
Company, and (z) for the account of Chase, a Swing Line Note,
conforming to the requirements hereof and executed by a duly
authorized officer of the Company.
(b) Trak West Acquisition. The Trak West Acquisition shall
have been consummated pursuant to the Purchase Agreement; all of the
conditions to such documentation shall have been substantially
satisfied and no material provision thereof shall have been amended,
supplemented, waived or otherwise modified without the prior written
consent of the Administrative Agent, which consent shall not be
unreasonably withheld.
(c) Capital Structure. (i) The Investors shall have
invested at least an additional $20,000,000 in equity of Holdings.
(ii) Holdings shall have invested at least an additional
$20,000,000 in common equity of the Company.
(iii) After giving effect to the Refinancing, the Company
and its Subsidiaries shall have no Indebtedness except as permitted by
this Agreement.
(iv) The execution, delivery and performance of this
Agreement and the other Credit Documents and the related documentation
with respect to the Commitments and the making of the Loans shall not
violate any of the provision of any of the Permanent Subordinated Note
Indenture, the Series A Note Indenture or the Series B Note Indenture.
(v) Any changes since October 30, 1996 to the
certificate of incorporation, by-laws, other governing documents and
corporate structure of the Company and its Subsidiaries, in each case
after giving effect to the consummation of
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the Transaction, shall be in form and substance satisfactory to the
Administrative Agent and the Documentation Agent (the execution and
delivery of this Agreement by the Lenders, the Documentation Agent and
the Administrative Agent being deemed to evidence the satisfaction of
the Administrative Agent and the Documentation Agent with such of the
above-referenced matters as shall have been disclosed and made
available to the Administrative Agent and the Documentation Agent
prior to the date hereof).
(d) Fees. The Administrative Agent, the Documentation Agent
and the Lenders shall have received all fees, expenses and other
consideration required to be paid or delivered on or before the
Closing Date.
(e) Lien Searches. The Administrative Agent shall have
received the results of searches, at the Secretary of State level in
California, of Uniform Commercial Code, tax and judgment filings made
with respect to each of Trak Auto Corporation, Trak Corporation d/b/a
Trak Auto Corporation I, Super Trak Corporation and Socal, together
with copies of financing statements disclosed by such searches and
such searches shall disclose no Liens on any assets encumbered by any
Security Document, except for Liens permitted hereunder or, if
unpermitted Liens are disclosed, the Administrative Agent shall have
received satisfactory evidence of release of such Liens.
(f) Actions to Perfect Liens. The Administrative Agent shall
have received evidence in form and substance satisfactory to it that
all filings, recordings, registrations and other actions, including,
without limitation, the filing of duly executed financing statements
on form UCC-1, necessary or, in the opinion of the Administrative
Agent, desirable to perfect the Liens created by the Security
Documents shall have been completed, including, but not limited to,
the assets acquired by the Company and its Subsidiaries in the Trak
West Acquisition.
(g) Pledge Agreements. The Administrative Agent shall have
received, in form and substance satisfactory to it (i) a written
confirmation of the Holdings Pledge Agreement executed and delivered
by a duly authorized officer of Holdings and a written confirmation of
the acknowledgment and consent of the Company thereunder and (ii) a
written confirmation of the Company Pledge Agreement executed and
delivered by a duly authorized officer of the Company and a written
confirmation of each of the acknowledgments and consents of each of
the Domestic Subsidiaries thereunder, in the form annexed to the
Company Pledge Agreement.
(h) Security Agreements. The Administrative Agent shall have
received, in form and substance satisfactory to it (i) a written
confirmation of the Company Security Agreement, executed and delivered
by a duly authorized officer of the Company and (ii) a written
confirmation of each of the Subsidiary Security Agreements, executed
and delivered by a duly authorized officer of each of the respective
Domestic Subsidiaries of the Company.
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(i) Guarantees. The Administrative Agent shall have
received, in form and substance satisfactory to it (i) a written
confirmation of the Holdings Guarantee, executed and delivered by a
duly authorized officer of Holdings and (ii) a written confirmation of
each of the Subsidiary Guarantees, executed and delivered by a duly
authorized officer of each of the respective Domestic Subsidiaries of
the Company.
(j) Legal Opinions. The Administrative Agent shall have
received, dated the Closing Date and addressed to the Administrative
Agent and the Lenders, an opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
counsel to Holdings and the Company, in substantially the form of
Exhibit J-1 with such changes thereto as may be approved by the
Administrative Agent and its counsel. The Administrative Agent shall
have received, dated the Closing Date and addressed to the
Administrative Agent and the Lenders, an opinion of ▇▇▇▇▇ ▇▇▇▇ LLP,
Arizona counsel to the Company, in substantially the form of Exhibit
J-2 with such changes as may be approved by the Administrative Agent
and its counsel.
(k) Closing Certificate. The Administrative Agent shall have
received a Closing Certificate of the Company and Holdings dated the
Closing Date, in substantially the form of Exhibits L-1 and L-2,
respectively, with appropriate insertions and attachments, in form and
substance satisfactory to the Administrative Agent and its counsel,
executed by the President or any Vice President and the Secretary or
any Assistant Secretary of the Company and Holdings, respectively.
(l) Consents, Authorizations and Filings, etc. Except for
financing statements to be filed in connection herewith, all consents,
authorizations and filings, if any, required in connection with the
execution, delivery and performance by Holdings or the Company, and
the validity and enforceability against Holdings and the Company, of
the Credit Documents to which any of them is a party, shall have been
obtained or made, and such consents, authorizations and filings shall
be in full force and effect, except such consents, authorizations and
filings, the failure to obtain which would not have a material adverse
effect on the business, assets, condition (financial or otherwise) or
results of operations of the Company and its Subsidiaries, taken as a
whole.
(m) Financial Statements. The Lenders shall have received
satisfactory pro forma balance sheets, on a consolidated basis, of the
Company and its subsidiaries as of the Closing Date reflecting and
giving effect to the Transaction and the other transactions
contemplated hereby, but excluding any purchase accounting
adjustments.
(n) Supplements to Subsidiary Guarantee and Subsidiary
Security Agreement. Socal shall have executed supplements to each of
the Subsidiary Guarantee and the Subsidiary Security Agreement in form
and substance satisfactory to the Administrative Agent whereby Socal
becomes a party to such Subsidiary Guarantee and Subsidiary Security
Agreement.
6.2 Conditions to All Loans and Letters of Credit. The
obligation of each Lender to make any Loan (other than any Revolving Credit
Loan the proceeds of which are
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to be used to repay Refunded Swing Line Loans) and the obligation of the
Issuing Lender to issue any Letter of Credit is subject to the satisfaction of
the following conditions precedent on the relevant Borrowing Date:
(a) Representations and Warranties. Each of the
representations and warranties made in or pursuant to Section 5 or
which are contained in any other Credit Document shall be true and
correct in all material respects on and as of the date of such Loan or
of the issuance of such Letter of Credit as if made on and as of such
date (unless stated to relate to a specific earlier date, in which
case, such representations and warranties shall be true and correct in
all material respects as of such earlier date).
(b) No Default or Event of Default. No Default or Event of
Default shall have occurred and be continuing on such Borrowing Date
or after giving effect to such Loan to be made or such Letter of
Credit to be issued on such Borrowing Date.
Each borrowing by the Company hereunder and the issuance of each Letter of
Credit by the Issuing Lender hereunder shall constitute a representation and
warranty by the Company as of the date of such borrowing or issuance that the
conditions in clauses (a) and (b) and of this subsection 6.2 have been
satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments
remain in effect, any Loan, Note or L/C Obligation remains outstanding and
unpaid, any amount (unless cash in an amount equal to such amount has been
deposited to a cash collateral account established by the Administrative Agent)
remains available to be drawn under any Letter of Credit or any other amount is
owing to any Lender or the Administrative Agent hereunder or under any of the
other Credit Documents, it shall, and, in the case of the agreements contained
in subsections 7.3 through 7.6, 7.8 and 7.9, the Company shall cause each of
its Subsidiaries to:
7.1 Financial Statements. Furnish to the Administrative
Agent (with sufficient copies for each Lender which the Administrative Agent
shall promptly furnish to each Lender):
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Company, a copy of the
consolidated balance sheet of the Company and its consolidated
Subsidiaries as at the end of such fiscal year and the related
consolidated statements of stockholders' equity and cash flows and the
consolidated statements of income of the Company and its Subsidiaries
for such fiscal year, setting forth in each case in comparative form
the figures for the previous year and, in the case of the consolidated
balance sheet referred to above, reported on, without a "going
concern" or like qualification or exception, or qualification arising
out of the scope of the audit, or qualification which would affect the
computation of financial covenants, by independent certified public
accountants of nationally recognized standing;
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(b) as soon as available, but in any event not later than 45
days after the end of each of the first three quarterly periods of
each fiscal year of the Company, the unaudited consolidated balance
sheet of the Company and its Subsidiaries as at the end of each such
quarter and the related unaudited consolidated statements of income
and cash flows of the Company and its Subsidiaries for such quarterly
period and the portion of the fiscal year of the Company through such
date, setting forth in each case in comparative form the figures for
the corresponding quarter in, and year to date portion of, the
previous year, and the figures for such periods in the budget prepared
by the Company and furnished to the Administrative Agent, certified by
the chief financial officer, controller or treasurer of the Company as
being fairly stated in all material respects;
(c) as soon as practicable, and in any event within 30 days
after the end of each calendar month of each year, commencing with the
first full month ended following the Closing Date, the unaudited
consolidated balance sheet of the Company and its Subsidiaries as at
the end of such month and the related unaudited consolidated statement
of income of the Company and its Subsidiaries for such month and for
the portion of the fiscal year of the Company through such date in the
form and detail similar to those customarily prepared by management of
the Company for internal use, setting forth in each case in
comparative form the consolidated figures for the corresponding month
of, and year to date portion of, the previous year and the figures for
such periods in the budget prepared by the Company and furnished to
the Administrative Agent, certified by the chief financial officer,
controller or treasurer of the Company as being fairly stated in all
material respects; and
(d) (i) as soon as available, but in any event not later than
30 days after the beginning of each fiscal year of the Company to
which such budget relates, a preliminary consolidated operating budget
for the Company and its Subsidiaries taken as a whole and (ii) as soon
as available, any material revision to or any final revision of, any
such preliminary annual operating budget or any such consolidated
operating budget.
all such financial statements to be complete and correct in all material
respects (subject, in the case of interim statements, to normal year-end audit
adjustments) and to be prepared in reasonable detail and (except in the case of
the statements referred to in paragraphs (c) and (d) of this subsection 7.1)
in accordance with GAAP.
7.2 Certificates; Other Information. Furnish to the
Administrative Agent (with sufficient copies for each Lender which the
Administrative Agent shall promptly deliver to each Lender):
(a) concurrently with the delivery of the consolidated
financial statements referred to in subsection 7.1(a), a letter from
the independent certified public accountants reporting on such
financial statements stating that in making the examination necessary
to express their opinion on such financial statements no knowledge was
obtained of any Default or Event of Default under subsections 4.4(b),
8.1, 8.3, and 8.6 through 8.11, except as specified in such letter;
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(b) concurrently with the delivery of the financial
statements referred to in subsections 7.1(a) and (b), a certificate of
the chief financial officer of the Company (i) stating that, to the
best of such officer's knowledge, each of the Company and its
Subsidiaries has observed or performed all of its respective covenants
and other agreements, and satisfied every material condition,
contained in this Agreement, the Notes and the other Credit Documents
to be observed, performed or satisfied by it, and that such officer
has obtained no knowledge of any Default or Event of Default except as
specified in such certificate, (ii) showing in detail as of the end of
the related fiscal period the figures and calculations supporting such
statement in respect of subsections 8.7 through 8.12 and any other
calculations reasonably requested by the Administrative Agent with
respect to the quantitative aspects of the other covenants contained
herein and (iii) if not specified in the financial statements
delivered pursuant to subsection 7.1, specifying the aggregate amount
of interest paid or accrued by the Company and its Subsidiaries, and
the aggregate amount of depreciation, depletion and amortization
charged on the books of the Company and its Subsidiaries, during such
accounting period;
(c) promptly upon receipt thereof, copies of all final
reports submitted to the Company or to any of its Subsidiaries by
independent certified public accountants in connection with each
annual, interim or special audit of the books of the Company or any of
its Subsidiaries made by such accountants, including, without
limitation, any final comment letter submitted by such accountants to
management in connection with their annual audit;
(d) promptly upon their becoming available, copies of all
financial statements, reports, notices and proxy statements sent or
made available to holders of the Permanent Subordinated Debt and the
public generally by the Company or any of its Subsidiaries, if any,
and all regular and periodic reports and all final registration
statements and final prospectuses, if any, filed by the Company or any
of its Subsidiaries with any securities exchange or with the
Securities and Exchange Commission or any Governmental Authority
succeeding to any of its functions;
(e) concurrently with the delivery of the financial
statements referred to in subsections 7.1(a) and (b), and within 45
days following each calendar month with respect to which the financial
statements referred to in subsection 7.1(c) are required to be
delivered, a management summary describing and analyzing the
performance of the Company and its Subsidiaries during the periods
covered by such financial statements;
(f) within 45 days after the end of each fiscal quarter, a
summary of all Asset Sales during such fiscal quarter including the
amount of all Net Proceeds from such Asset Sales not previously
applied to prepayments of the Loans and reductions of the Commitments
pursuant to the proviso to subsection 4.4(b)(iii); and
(g) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
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7.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its obligations and liabilities of whatever nature including tax
liabilities, except (a) when the amount or validity thereof is currently being
contested in good faith by appropriate proceedings and reserves in conformity
with GAAP with respect thereto have been provided on the books of the Company
or any of its Subsidiaries, as the case may be, (b) for delinquent obligations
which do not have a material adverse effect on the business, assets, condition
(financial or otherwise) or results of operations of the Company and its
Subsidiaries taken as a whole and (c) for trade and other accounts payable in
the ordinary course of business.
7.4 Conduct of Business and Maintenance of Existence.
Continue to engage in business of the same general type as now conducted by it
(after giving effect to the Transaction), and preserve, renew and keep in full
force and effect its corporate existence and take all reasonable action to
maintain all material rights, material privileges, franchises, copyrights,
trademarks and trade names necessary or desirable in the normal conduct of its
business except for rights, privileges, franchises, copyrights, trademarks and
tradenames the loss of which would not in the aggregate have a material adverse
effect on the business, assets, condition (financial or otherwise) or results
of operations of the Company and its Subsidiaries taken as a whole, and except
as otherwise permitted by subsections 8.4 and 8.5; and comply with all
applicable Requirements of Law and Contractual Obligations except to the extent
that the failure to comply therewith would not, in the aggregate, have a
material adverse effect on the business, assets, condition (financial or
otherwise) or results of operations of the Company and its Subsidiaries taken
as a whole.
7.5 Maintenance of Property; Insurance. (a) Keep all
property useful and necessary in its business in good working order and
condition (ordinary wear and tear excepted); and
(b) Maintain with financially sound and reputable insurance
companies (x) insurance on all its property in at least such amounts and with
only such deductibles as are usually maintained by, and against at least such
risks (but including, in any event, public liability insurance) as are usually
insured against in the same general area, by companies engaged in the same or a
similar business and (y) the flood insurance, if any, required pursuant to
subsection 7.10(b)(ii); and furnish to each Lender, (i) annually, a schedule
disclosing (in a manner substantially similar to that used in the schedule
provided pursuant to subsection 6.1(o)) all insurance against products
liability risk maintained by the Company and its Subsidiaries pursuant to this
subsection 7.5(b) or otherwise and (ii) upon written request of any Lender,
full information as to the insurance carried; provided that the Company may
implement programs of self insurance in the ordinary course of business and in
accordance with industry standards for a company of similar size so long as
reserves are maintained in accordance with GAAP for the liabilities associated
therewith.
7.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, complete and correct
entries in conformity with all material Requirements of Law shall be made of
all dealings and transactions in relation to its business and activities; and
permit representatives of any Lender upon reasonable notice (but, with respect
to all Lenders, no more frequently than monthly unless a Default or Event
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of Default shall have occurred and be continuing) to visit and inspect any of
its properties and examine and, to the extent reasonable, make abstracts from
any of its books and records, and to discuss the business, operations,
properties and financial and other condition of the Company and its
Subsidiaries with officers and employees of the Company and its Subsidiaries
and (in coordination with such officers and employees) with its independent
certified public accountants, in each case at any reasonable time, upon
reasonable notice, and as often as may reasonably be desired.
7.7 Notices. Promptly give notice to the Administrative
Agent and each Lender:
(a) of the occurrence of any Default or Event of Default;
(b) of any (i) default or event of default under any
instrument or other agreement, guarantee or collateral document of the
Company or any of its Subsidiaries which default or event of default
has not been waived and would have a material adverse effect on the
business, assets, condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries taken as a whole, or
any other default or event of default under any such instrument,
agreement, guarantee or other collateral document which, but for the
proviso to clause (e) of Section 9, would have constituted a Default
or Event of Default under this Agreement, or (ii) litigation,
investigation or proceeding which may exist at any time between the
Company or any of its Subsidiaries and any Governmental Authority, or
receipt of any notice of any environmental claim or assessment against
the Company or any of its Subsidiaries by any Governmental Authority,
which in any such case would have a material adverse effect on the
business, assets, condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries taken as a whole;
(c) of any litigation or proceeding against the Company or
any of its Subsidiaries (i) in which more than $2,000,000 of the
amount claimed is not covered by insurance or (ii) in which injunctive
or similar relief is sought which if obtained would have a material
adverse effect on the business, assets, condition (financial or
otherwise) or results of operations of the Company and its
Subsidiaries taken as a whole;
(d) of the following events, as soon as practicable after,
and in any event within 30 days after, the Company knows or has reason
to know thereof: (i) the occurrence of any Reportable Event with
respect to any Plan which Reportable Event could reasonably result in
material liability to the Company and its Subsidiaries taken as a
whole or (ii) the institution of proceedings or the taking of any
other action by PBGC, the Company or any Commonly Controlled Entity to
terminate, withdraw or partially withdraw from any Plan and, with
respect to a Multiemployer Plan, the Reorganization or Insolvency of
the Plan, in each of the foregoing cases which could reasonably result
in material liability to the Company and its Subsidiaries taken as a
whole, and in addition to such notice, deliver to the Administrative
Agent and each Lender whichever of the following may be applicable:
(A) a certificate of a Responsible Officer of the Company setting
forth details as to such Reportable Event
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and the action that the Company or such Commonly Controlled Entity
proposes to take with respect thereto, together with a copy of any
notice of such Reportable Event that may be required to be filed with
PBGC or (B) any notice delivered by PBGC evidencing its intent to
institute such proceedings or any notice to PBGC that such Plan is to
be terminated, as the case may be; and
(e) of a material adverse change known to the Company or its
Subsidiaries in the business, assets, condition (financial or
otherwise) or results of operations of the Company and its
Subsidiaries taken as a whole.
Each notice pursuant to this subsection 7.7 shall be accompanied by a statement
of a Responsible Officer of the Company setting forth details of the occurrence
referred to therein and (in the cases of clauses (a) through (d)) stating what
action the Company proposes to take with respect thereto.
7.8 Environmental Laws. (a) Comply with, and use reasonable
efforts to insure compliance by all tenants and subtenants, if any, with, all
applicable Environmental Laws and obtain and comply with and maintain, and
require that all tenants and subtenants obtain and comply with and maintain,
all licenses, approvals, registrations or permits required by Environmental
Laws, except to the extent that failure to do so would not be reasonably likely
to have a material adverse effect on the business, assets, condition (financial
or otherwise) or results of operations of the Company and its Subsidiaries
taken as a whole or on the validity or enforceability of any of the Credit
Documents or the rights and remedies of the Administrative Agent or the Lenders
thereunder;
(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions, lawfully
required under applicable Environmental Laws, and promptly comply with all
lawful orders and directives of all Governmental Authorities respecting
Environmental Laws, except to the extent that the same are being contested in
good faith by appropriate proceedings; and
(c) In regard to this Agreement or in any way relating to the
Company or its Subsidiaries or their current or former operations, defend,
indemnify and hold harmless the Administrative Agent and the Lenders, and their
respective employees, agents, officers and directors, from and against any
claims, demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature known or unknown, contingent or otherwise,
arising out of, or in any way relating to Hazardous Material or Environmental
Laws, including, without limitation, any orders, requirements or demands of
Governmental Authorities related thereto, including, without limitation,
reasonable attorney's and consultant's fees, investigation and laboratory fees,
remediation costs, court costs and litigation expenses, except to the extent
that any of the foregoing arise out of the gross negligence or willful
misconduct of the party seeking indemnification therefor. The agreements in
this subsection 7.8(c) shall survive repayment of the Loans and all other
amounts payable hereunder.
7.9 Receipt of Stock Certificates. As soon as practicable
following the Closing Date, but in any event not more than 3 Business Days
thereafter, deliver to the
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Administrative Agent stock certificates representing 100% of all issued and
outstanding shares of Capital Stock of Socal and undated stock powers for each
such certificate, executed in blank and delivered by a duly authorized officer
of the Company.
SECTION 8. NEGATIVE COVENANTS
The Company hereby agrees that it shall not, and the Company
shall not permit any of its Subsidiaries to, directly or indirectly so long as
the Commitments remain in effect or any Loan, Note or L/C Obligation remains
outstanding and unpaid, any amount (unless cash in an amount equal to such
amount has been deposited to a cash collateral account established by the
Administrative Agent) remains available to be drawn under any Letter of Credit
or any other amount is owing to any Lender or the Administrative Agent
hereunder or under any other Credit Document (it being understood that each of
the permitted exceptions to each of the covenants in this Section 8 is in
addition to, and not overlapping with, any other of such permitted exceptions
except to the extent expressly provided):
8.1 Indebtedness. Create, incur, assume or suffer to exist
any Indebtedness, except:
(a) the Indebtedness outstanding on the Closing Date and
reflected on Schedule 8.1(a), but excluding the refinancing of any
such Indebtedness;
(b) Indebtedness consisting of the Loans and in connection
with the Letters of Credit and this Agreement;
(c) Indebtedness (i) of the Company to any Subsidiary and
(ii) of any Subsidiary to the Company or any other Subsidiary;
(d) Indebtedness consisting of the Permanent Subordinated
Debt outstanding on the Closing Date and Indebtedness of the Company
in respect of any Permanent Subordinated Debt the net proceeds of
which are used to prepay, redeem, retire or repurchase the outstanding
principal amount of the then outstanding Permanent Subordinated Debt
(if any) (including fees and expenses in connection therewith) or to
prepay the Loans and reduce the Commitments in accordance with in
subsection 4.4(b)(ii), provided that, to the extent there are
additional Net Proceeds remaining after any such repayment,
redemption, retirement or repurchase of the then outstanding Permanent
Subordinated Debt, or to the extent such Net Proceeds are not used to
repay, redeem, retire or repurchase the then outstanding Permanent
Subordinated Debt, such Net Proceeds shall be used to prepay the Loans
and reduce the Commitments in accordance with subsection 4.4(b)(ii);
(e) (i) Indebtedness of the Company and its Subsidiaries for
(A) industrial revenue bonds or other similar governmental and
municipal bonds and (B) the deferred purchase price of newly acquired
property of the Company and its Subsidiaries (pursuant to purchase
money mortgages or otherwise, whether owed to the seller or otherwise)
used in the ordinary course of business of the Company and its
Subsidiaries
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(provided such financing is entered into within 180 days of the
acquisition of such property) in an amount (based on the remaining
balance of the obligations therefor on the books of the Company and
its Subsidiaries) which in the case of preceding clauses (A) and (B)
shall not exceed $10,000,000 in the aggregate at any one time
outstanding and (ii) Indebtedness of the Company and its Subsidiaries
in respect of Financing Leases to the extent subsections 8.7 and 8.10
would not be contravened;
(f) Indebtedness of the Company and Subsidiaries in aggregate
principal amount not to exceed at any one time outstanding
$20,000,000;
(g) Indebtedness in respect of letters of credit (other than
Letters of Credit issued hereunder) in aggregate principal amount not
to exceed at any one time outstanding $10,000,000;
(h) (i) Indebtedness assumed in connection with acquisitions
permitted by subsection 8.6(h) (so long as such Indebtedness was not
incurred in anticipation of such acquisitions), (ii) Indebtedness of
newly acquired Subsidiaries acquired in such acquisitions (so long as
such Indebtedness was not incurred in anticipation of such
acquisition) and (iii) Indebtedness owed to the seller in any
acquisition permitted by subsection 8.6(h) constituting part of the
purchase price thereof, all of which Indebtedness permitted by this
subsection 8.1(h) shall not exceed an aggregate principal amount at
any one time outstanding of $25,000,000;
(i) Indebtedness in connection with workmen's compensation
obligations and general liability exposure of the Company and its
Subsidiaries; and
(j) Indebtedness in an aggregate principal amount not to
exceed $1,000,000 under the promissory note made by the Company in
favor of Transatlantic, Ltd.; and
(k) subordinated Indebtedness in aggregate principal amount
not to exceed at any one time outstanding $25,000,000 plus any
additional principal amount of such subordinated Indebtedness issued
in lieu of cash interest thereon (and any refinancing thereof shall be
permitted in the amount of such sum), which subordinated Indebtedness
(i) is subordinated to the Indebtedness hereunder on terms not less
favorable to the Lenders than the subordination provisions of the
Permanent Subordinated Debt, (ii) has an interest rate not exceeding
12% per annum and (iii) has a maturity date after the Maturity Date.
8.2 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets, income or profits, whether now
owned or hereafter acquired, except:
(a) Liens for taxes, assessments or other governmental
charges not yet delinquent or which are being contested in good faith
and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Company or such Subsidiary,
as the case may be, in accordance with GAAP;
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(b) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business in respect of obligations which are not yet due or
which are bonded or which are being contested in good faith and by
appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of the Company or such Subsidiary, as the case
may be, in accordance with GAAP;
(c) pledges or deposits in connection with workmen's
compensation, unemployment insurance and other social security
legislation;
(d) deposits to secure the performance of bids, tenders,
trade or government contracts (other than for borrowed money), leases,
licenses, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary
course of business;
(e) easements (including, without limitation, reciprocal
easement agreements), rights-of-way, building, zoning and similar
restrictions, utility agreements, covenants, reservations,
restrictions, encroachments, changes, and other similar encumbrances
or title defects incurred, or leases or subleases granted to others,
in the ordinary course of business, which do not in the aggregate
materially detract from the aggregate (i) value of the properties of
the Company and its Subsidiaries, taken as a whole or (ii) materially
interfere with or adversely affect in any material respect the
ordinary conduct of the business of the Company and its Subsidiaries
taken as a whole;
(f) Liens in favor of the Administrative Agent and the
Lenders pursuant to the Credit Documents and bankers' liens arising by
operation of law;
(g) Liens on property of the Company or any of its
Subsidiaries created solely for the purpose of securing Indebtedness
permitted by subsection 8.1(e) or 8.1(h)(i) or (ii) (so long as such
Lien was not incurred in anticipation of the related acquisition),
representing or incurred to finance, refinance or refund the purchase
price of property, provided that no such Lien shall extend to or cover
other property of the Company or such Subsidiary other than the
respective property so acquired, and the principal amount of
Indebtedness secured by any such Lien shall at no time exceed the
original purchase price of such property;
(h) Liens existing on the Closing Date after giving effect to
the consummation of the Transaction, and described in subsection 5.13
or Schedule 8.2, provided that no such Lien shall extend to or cover
other property of the Company or the respective Subsidiary other than
the respective property so encumbered, and the principal amount of
Indebtedness secured by any such Lien shall at no time exceed the
original principal amount of the Indebtedness so secured;
(i) Liens on documents of title and the property covered
thereby (and Proceeds thereof) securing Indebtedness in respect of the
Commercial L/Cs or securing reimbursement obligations in respect of
letters of credit permitted under this Agreement;
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(j) (i) mortgages, liens, security interests, restrictions,
encumbrances or any other matters of record that have been placed by
any developer, landlord or other third party on property over which
the Company or any Subsidiary of the Company has easement rights or on
any Leased Property and subordination or similar agreements relating
thereto and (ii) any condemnation or eminent domain proceedings
affecting any real property;
(k) Liens in connection with workmen's compensation
obligations and general liability exposure of the Company and its
Subsidiaries; and
(l) Liens on Fee Properties and/or Leased Properties
consisting of (i) any conditions that may be shown by a current,
accurate survey or physical inspection of such Fee Property or Leased
Property, (ii) as to Leased Property, the terms and provisions of the
respective lease therefor and any matters affecting the fee title and
any estate superior to the leasehold estate related thereto, and (iii)
title defects, or leases or subleases granted to others, which are not
material to the Fee Properties or Leased Properties, as the case may
be, taken as a whole.
8.3 Limitation on Contingent Obligations. Create, incur,
assume or suffer to exist any Contingent Obligation except:
(a) the Guarantees;
(b) other guarantees by the Company incurred in the ordinary
course of business for an aggregate amount not to exceed $4,000,000 at
any one time;
(c) guarantees by the Company of obligations of its
Subsidiaries;
(d) Contingent Obligations existing on the Closing Date and
described in Schedule 8.3(d);
(e) guarantees of obligations to third parties in connection
with relocation of employees of the Company or any of its
Subsidiaries, in an amount which, together with all loans and advances
made pursuant to subsection 8.6(f), shall not exceed $4,000,000 at any
time outstanding;
(f) Contingent Obligations in connection with workmen's
compensation obligations and general liability exposure of the Company
and its Subsidiaries; and
(g) subordinated guarantees of the Permanent Subordinated
Debt issued by Subsidiaries of the Company which have also issued
Guarantees, provided such subordinated guarantees are subordinated to
the Guarantees on the same basis as the Permanent Subordinated Debt is
subordinated to the Loans;
(h) guarantees by the Company of loans to employees of the
Company and its Subsidiaries, the proceeds of which are used to
purchase stock of Holdings, in an aggregate amount not to exceed, when
added to the amount of loans made by the
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Company to employees pursuant to subsection 8.6(g), at any one time
outstanding $8,000,000; and
(i) guarantees by the Company of loans to employees of the
Company and its Subsidiaries, the proceeds of which are used for
travel and other ordinary expenses for which advances to employees are
generally made, in an aggregate amount not to exceed, when added to
the amount of loans made by the Company to employees pursuant to
subsection 8.6(i), at any one time outstanding $1,000,000.
8.4 Prohibition of Fundamental Changes. Enter into any
merger or consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or engage in any type of
business other than of the same general type now conducted by it, except (a)
for the transactions otherwise permitted pursuant to clause (b) of subsection
8.5, (b) any Subsidiary of the Company may be merged with and into the Company
or a Subsidiary of the Company, (c) any Subsidiary may be dissolved, provided,
however, that prior to the dissolution of any Subsidiary whose book value
exceeds $100,000, the assets of such Subsidiary are transferred to the Company
or a wholly-owned Domestic Subsidiary of the Company subject to the conditions
set forth in Section 8.5(b) and (d) the Company may be reincorporated under the
laws of Delaware, provided that the Administrative Agent, in its sole
discretion, determines that such reincorporation will not alter the obligations
of any Credit Party under any Credit Document or cause a material impairment of
the value of the Collateral taken as a whole, after giving effect to such
reincorporation.
8.5 Prohibition on Sale of Assets. Convey, sell, lease
(other than a sublease of real property), assign, transfer or otherwise dispose
of (including through a transaction of merger or consolidation of any
Subsidiary of the Company) any of its property, business or assets (including,
without limitation, tax benefits and receivables but excluding leasehold
interests), whether now owned or hereafter acquired, except:
(a) for (i) sales or other dispositions of inventory made in
the ordinary course of business, (ii) sales or other dispositions of
uneconomic, obsolete or worn-out property in the ordinary course of
business and (iii) any sale of a store and/or fixtures to a third
party pursuant to a sale-leaseback transaction;
(b) that any Subsidiary of the Company may sell, lease,
transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to, or merge with and into, the
Company or a wholly-owned Subsidiary of the Company and any Subsidiary
of the Company may sell or otherwise dispose of, or part with control
of any or all of, the stock of any Subsidiary to a wholly-owned
Subsidiary of the Company, provided that no such transaction may be
effected if it would result in the transfer of any assets of, or any
stock of, a Subsidiary to, or the merger with and into, another
Subsidiary all of the Capital Stock of which owned by the Company or
any Subsidiary has not been pledged to the Administrative Agent and
which has not guaranteed the obligations of the Company under the
Notes and this Agreement, and granted liens or security interests in
favor of the Administrative Agent, for the benefit of the Lenders, on
substantially all of its assets to secure such guarantee, pursuant to
a
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guarantee, security agreement and other documentation reasonably
satisfactory to the Administrative Agent;
(c) leases of Fee Properties and other real property owned in
fee and subleases of Leased Properties;
(d) any condemnation or eminent domain proceedings affecting
any real property, provided, however, that the parties hereto agree
that the net proceeds received in connection with such proceeding
shall be deemed not to constitute "Net Proceeds" if such net proceeds
are reinvested in new or existing properties within eighteen months;
(e) substantially like-kind exchanges of real property,
provided that any cash received by the Company or any Subsidiary of
the Company in connection with such an exchange (net of all costs and
expenses incurred in connection with such transaction or with the
commencement of operation of real property received in such exchange)
shall be deemed to be Net Proceeds and shall be applied as provided
for herein; and
(f) for the sale or other disposition of any property the
aggregate amount of the net proceeds received in respect of which
shall not exceed $4,000,000; and
(g) for the sale of owned real property and/or fixtures.
8.6 Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of, or make any other
investment in (including, without limitation, any acquisition of all or any
substantial portion of the assets, and any acquisition of a business or a
product line, of other companies, other than the acquisition of inventory in
the ordinary course of business), any Person, except:
(a) the Company may make loans or advances to any Subsidiary,
and any Subsidiary may make loans or advances to the Company or any
other Subsidiary, to the extent in each case the Indebtedness created
thereby is permitted by paragraph (c) of subsection 8.1;
(b) (i) any Subsidiary may make investments in the Company
(by way of capital contribution or otherwise) and (ii) the Company and
any Subsidiary may make investments in, or create, any wholly-owned
Domestic Subsidiary (by way of capital contribution or otherwise) or
make investments permitted by subsection 8.5(b), provided that, in any
such case, (x) if stock is issued or otherwise acquired in connection
with such investment, or if the stock of such Subsidiary was not
previously pledged to the Administrative Agent, such stock is pledged
to the Administrative Agent for the benefit of the Lenders so that
100% of the Capital Stock of such Subsidiary is pledged to the
Administrative Agent and (y) such Subsidiary guarantees the
obligations of the Company under the Notes and this Agreement, and
grants liens or security interests in favor of the Administrative
Agent, for the benefit of the
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Lenders, on substantially all of its assets to secure such guarantee,
pursuant to a guarantee, a security agreement and other documentation
reasonably satisfactory to the Administrative Agent;
(c) the Company and its Subsidiaries may invest in, acquire
and hold Cash Equivalents;
(d) the Company or any of its Subsidiaries may make payroll
advances in the ordinary course of business;
(e) the Company or any of its Subsidiaries may acquire and
hold receivables owing to it, if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with
customary trade terms, (provided that nothing in this clause (e) shall
prevent the Company or any Subsidiary from offering such concessionary
trade terms, or from receiving such investments in connection with the
bankruptcy or reorganization of their respective suppliers or
customers or the settlement of disputes with such customers or
suppliers arising in the ordinary course of business, as management
deems reasonable in the circumstances); and
(f) the Company or any of its Subsidiaries may make
relocation and other loans to officers and employees of the Company or
any such Subsidiary, provided that the aggregate principal amount of
all such loans and advances outstanding at any one time, together with
the guarantees of such loans and advances made pursuant to subsection
8.3(e), shall not exceed $4,000,000 at any one time outstanding;
(g) the Company may make loans to employees of the Company
and its Subsidiaries the proceeds of which are used by such employees
to purchase stock of Holdings, provided that the aggregate principal
amount of all such loans shall not exceed, together with any
guarantees of loans made pursuant to subsection 8.3(h), at any one
time outstanding $8,000,000;
(h) the Company and its Subsidiaries may make acquisitions of
companies engaged primarily in businesses similar to the businesses in
which the Company and its Subsidiaries are engaged to the extent that
the amount expended to make such acquisitions is permitted pursuant to
subsection 8.7 (a), (b) or (d); provided that, if permitted pursuant
to clause (b) of subsection 8.7, the acquisitions shall be permitted
only if the Company complies with the covenants contained in
subsections 8.8, 8.9 and 8.10 of this Agreement on a pro forma basis
after giving effect to such acquisitions; and
(i) the Company may make loans to employees of the Company
and its Subsidiaries, the proceeds of which are used by such employees
for travel and other ordinary expenses for which advances to employees
are generally made in an aggregate principal amount not to exceed when
added to the amount of guarantees made by the Company pursuant to
subsection 8.3(i), at any one time outstanding $1,000,000.
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8.7 Capital Expenditures. Make or commit to make any Capital
Expenditures, except that the Company and its Subsidiaries may make or commit
to make Capital Expenditures
(a) in connection with the Trak West Acquisition; plus
(b) consisting of acquisitions of companies engaged
primarily in businesses similar to the businesses in which the Company
and its Subsidiaries are engaged, in an aggregate amount of
$50,000,000; plus
(c) consisting of investments in the development of new
or relocated stores in an aggregate amount not to exceed at any one
time $50,000,000, against which amount shall be credited any funds
from the subsequent sale of any real property (including leasehold
interests) or fixtures purchased or developed in connection therewith;
plus
(d) of any other type in amounts not exceeding the amount
set forth below (the "Base Amount") for each of the fiscal years of
the Company (or other period) set forth below:
Fiscal Year
or Period Base Amount
---------- -----------
October 30, 1996 $35,000,000
through end of
fiscal year 1997
1998 $30,000,000
1999 $30,000,000
2000 $30,000,000
2001 $30,000,000
2002 $30,000,000
2003 $30,000,000
provided, however, that (i) for any fiscal year of the Company, the
Base Amount for such fiscal year set forth above shall be increased by
an amount equal to the aggregate amount of proceeds received by the
Company or any of its Subsidiaries in such fiscal year with respect to
sales of real property by the Company or such Subsidiary, which real
property had been originally acquired or developed by the Company or
such Subsidiary with the proceeds of Revolving Credit Loans, but only
if such acquisition and development costs had been originally included
as Capital Expenditures in the fiscal year or years when such
acquisition and development costs were incurred and (ii) for any
fiscal year of the Company, the Base Amount for such fiscal year set
forth above (as increased with respect to such fiscal year pursuant to
clause (i) of this proviso) may be increased by an amount not in
excess of $15,000,000 by carrying over to such fiscal year the unused
portion of the Base Amount for the immediately preceding fiscal year
(as increased pursuant to this proviso).
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8.8 Consolidated EBITDA. At the last day of any fiscal
quarter set forth below, permit Consolidated EBITDA for the period of four
fiscal quarters ending on such day to be less than the amount set forth
opposite such fiscal quarter below:
Fiscal Year Fiscal Quarter Amount
----------- -------------- -----------
1997 Fourth $50,000,000
1998 First $54,000,000
Second $60,000,000
Third $65,000,000
Fourth $70,000,000
1999 First $74,000,000
Second $75,000,000
Third $75,000,000
Fourth $75,000,000
2000 First $75,000,000
Second $75,000,000
Third $75,000,000
Fourth $75,000,000
2001 First $75,000,000
Second $75,000,000
Third $75,000,000
Fourth $75,000,000
2002 First $75,000,000
Second $75,000,000
Third $75,000,000
Fourth $75,000,000
2003 First $75,000,000
Second $75,000,000
Third $75,000,000
Fourth $75,000,000
8.9 Debt to EBITDA. At the last day of any fiscal quarter
set forth below, permit the ratio of Consolidated Funded Indebtedness as at
such day to Consolidated EBITDA for the period of four fiscal quarters ending
on such day (the "Leverage Ratio") to be greater than the ratio set forth below
for such fiscal quarter; provided, that, with respect to any acquisition
permitted by subsection 8.6(h), the last four fiscal quarters of Consolidated
EBITDA (as may be adjusted for post-acquisition cost savings reasonably agreed
to by the Company and the Administrative Agent) of the acquired company shall
be added to the Consolidated EBITDA of the Company for the purposes of
calculating this ratio:
Fiscal Year Fiscal Quarter Ratio
----------- -------------- ---------
▇▇▇▇ ▇▇▇▇▇▇ 5.75 to 1
1998 First 5.75 to 1
Second 5.75 to 1
Third 5.75 to 1
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Fourth 4.50 to 1
1999 First 4.50 to 1
Second 4.50 to 1
Third 4.50 to 1
Fourth 4.00 to 1
2000 First 4.00 to 1
Second 4.00 to 1
Third 4.00 to 1
Fourth 4.00 to 1
2001 First 4.00 to 1
Second 4.00 to 1
Third 4.00 to 1
Fourth 4.00 to 1
2002 First 4.00 to 1
Second 4.00 to 1
Third 4.00 to 1
Fourth 4.00 to 1
2003 First 4.00 to 1
Second 4.00 to 1
Third 4.00 to 1
Fourth 4.00 to 1
8.10 Interest Coverage. At the last day of any fiscal
quarter set forth below, permit the Interest Coverage Ratio to be less than the
ratio set forth below for such fiscal quarter:
Interest
Coverage
Fiscal Year Fiscal Quarter Ratio
----------- -------------- ---------
▇▇▇▇ ▇▇▇▇▇▇ 1.75 to 1
1998 First 1.75 to 1
Second 1.75 to 1
Third 1.75 to 1
Fourth 2.25 to 1
1999 First 2.25 to 1
Second 2.25 to 1
Third 2.25 to 1
Fourth 2.75 to 1
2000 First 2.75 to 1
Second 2.75 to 1
Third 2.75 to 1
Fourth 2.75 to 1
2001 First 2.75 to 1
Second 2.75 to 1
Third 2.75 to 1
Fourth 2.75 to 1
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2002 First 2.75 to 1
Second 2.75 to 1
Third 2.75 to 1
Fourth 2.75 to 1
2003 First 2.75 to 1
Second 2.75 to 1
Third 2.75 to 1
Fourth 2.75 to 1
8.11 Limitation on Dividends. Declare any dividends on any
shares of any class of stock, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase, redemption,
retirement or other acquisition of any shares of any class of stock, or any
warrants or options to purchase such stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Company or
any of its Subsidiaries; except that:
(a) Subsidiaries may pay dividends to the Company or to
Subsidiaries which are directly or indirectly wholly owned by the
Company;
(b) the Company may pay or make dividends or distributions to
any holder of its capital stock in the form of additional shares of
Capital Stock of the same class and type, provided such shares of
Capital Stock are pledged to the Administrative Agent for the benefit
of the Lenders;
(c) the Company may pay dividends or make other
distributions:
(i) to Holdings in amounts equal to amounts
required for Holdings to pay franchise taxes and other fees
required to maintain its corporate existence and provide for
other operating costs;
(ii) to Holdings in amounts equal to amounts
required for Holdings to pay Federal, state and local income
taxes to the extent such income taxes are attributable to the
income of the Company and its Subsidiaries;
(iii) to Holdings in amounts equal to amounts
expended by Holdings to repurchase Capital Stock of Holdings
owned by former employees of the Company or its Subsidiaries
or their assigns, estates and heirs, provided that the
aggregate amount paid, loaned or advanced to Holdings pursuant
to this clause (iii) shall not, in the aggregate, exceed the
sum of $5,000,000 plus any amounts contributed by Holdings to
the Company as a result of resales of such repurchased shares
of Capital Stock;
(iv) to Holdings in amounts equal to amounts
required for Holdings to make phantom stock payments in an
aggregate amount not to exceed $10,000,000 during the 1997
fiscal year of the Company;
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(v) so long as, after giving effect thereto, no
Default or Event of Default has occurred and is continuing and
the most recent financial statements required to be delivered
pursuant to subsections 7.1(a) or (b) have been delivered, the
Company may pay scheduled cash dividends on the Company's
preferred stock to Holdings to enable Holdings to pay interest
at a non-default rate per annum not in excess of 12% to the
holders of the Holdings Subordinated Debt in respect of the
six-month period ended on such day (or accrued deferred
interest in respect of any prior period), provided that within
20 days Holdings uses such dividends to pay current or accrued
interest on the Holdings Subordinated Debt; and
(vi) if the Company is prohibited from paying cash
dividends pursuant to subsection 8.11(c)(v) because of the
occurrence of a Default or Event of Default, the Company may
pay the cash dividends which it would have otherwise paid on
its preferred stock to Holdings on a prior date on any
succeeding date to enable Holdings to pay interest at a
non-default rate per annum not in excess of 12% to the holders
of the Holdings Subordinated Debt in respect of any prior
period (or accrued deferred interest in respect of any prior
period), provided that (A) so long as, after giving effect
thereto, no Default or Event of Default has occurred and is
continuing (including compliance with the Interest Coverage
Ratio set forth in subsection 8.10 on a pro forma basis
assuming such dividends that are proposed to be paid at such
time pursuant to this clause (vi) but were not paid under
subsection 8.11(c)(v) had been paid on the last day of the
most recently ended fiscal quarter of the Company (for
purposes of calculating compliance with the Interest Coverage
Ratio pursuant to this subsection 8.11(c)(vi) only, the
denominator of the Interest Coverage Ratio shall include the
amount of such dividends paid in cash by the Company to
Holdings pursuant to this subsection 8.11(c)(vi)), (B) the
financial statements required to be delivered in respect of
such fiscal quarter have been delivered pursuant to
subsections 7.1(a) or (b) and (C) within 20 days Holdings uses
such dividends to pay current or accrued interest on the
Holdings Subordinated Debt; and
(d) the Company may redeem, repurchase or cancel any of the
preferred stock of the Company held by Holdings with the Net Proceeds
of any issuance of Capital Stock of Holdings, the Company or its
Subsidiaries, provided that Holdings concurrently redeems, repays or
repurchases Holdings Subordinated Debt with the proceeds of such
repurchase, redemption or cancellation.
8.12 Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate except
for transactions which are otherwise permitted under this Agreement and which
are in the ordinary course of the Company's or a Subsidiary's business and
which are upon fair and reasonable terms no less favorable to the Company or
such Subsidiary than it would obtain in a hypothetical comparable arm's length
transaction with a Person not an Affiliate; provided, however, that nothing in
this subsection 8.12 shall prohibit the Company or any of its Subsidiaries from
engaging in the following transactions: (x) the
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performance of the Company's or such Subsidiary's obligations under any
employment contract, collective bargaining agreement, employee benefit plan,
related trust agreement or any other similar arrangement heretofore or
hereafter entered into in the ordinary course, (y) payment of compensation to
employees, officers, directors or consultants in the ordinary course of
business and (z) maintenance of benefit programs or arrangements for employees,
officers or directors, including, without limitation, vacation plans, health
and life insurance plans, deferred compensation plans, and retirement or
savings plans and similar plans.
8.13 Prepayments and Amendments of Permanent Subordinated
Debt. (a) Optionally prepay, optionally retire, optionally redeem, optionally
purchase, optionally defease or optionally exchange, or make any mandatory
prepayment of any Permanent Subordinated Debt (other than (y) any refinancing
of the Permanent Subordinated Debt contemplated in the definition thereof and
(z) any redemption of the Permanent Subordinated Debt with the proceeds of the
issuance of Capital Stock to the extent permitted by subsection 4.4(b)) or pay
any interest on the Permanent Subordinated Debt in cash if such interest may be
paid by the issuance of additional Permanent Subordinated Debt or (b) amend,
supplement or otherwise modify any documentation governing any Permanent
Subordinated Debt (other than (i) amendments to such Permanent Subordinated
Debt which reduce the interest rate or extend the maturity thereof and (ii)
waivers of compliance by the Company with any of the terms or conditions of
such Permanent Subordinated Debt (except those terms or conditions which by
their terms run to the benefit of the Lenders). Notwithstanding anything to
the contrary in this Section 8.13 and in addition to that which is permitted
pursuant to the parenthetical in clause (a) of this Section 8.13, so long as
there is no Default or Event of Default existing and no Default or Event of
Default (except as would result from this Section 8.13 but for the last
sentence hereof) would result therefrom, the Company may redeem, repay or
repurchase up to $20,000,000 aggregate principal amount of the Permanent
Subordinated Debt and may amend, supplement or otherwise modify such documents
governing the Permanent Subordinated Debt as may be necessary to effect such
redemption, repayment or repurchase.
8.14 Limitation on Changes in Fiscal Year. Permit the fiscal
year of the Company to end on a day other than the Sunday closest to January
31.
8.15 Limitation on Lines of Business. Enter into any
business, either directly or through any Subsidiary, except for those
businesses in which the Company is engaged on the date of this Agreement or
which are directly related thereto.
8.16 Limitation on Interest Rate Agreements. Enter into,
create, incur, assume or suffer to exist any Interest Rate Agreements or
obligations in respect thereof except in the ordinary course of business for
non-speculative purposes.
SECTION 9. EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the
following events:
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(a) The Company shall fail (i) to pay any principal of any
Note when due in accordance with the terms hereof or thereof or to
reimburse the Issuing Lender in accordance with subsection 3.8 or (ii)
pay any interest on any Loan or any other amount payable hereunder
within five days after any such interest or other amount becomes due
in accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by any
Credit Party in any Credit Document shall prove to have been incorrect
in any material respect on or as of the date made or deemed made; or
(c) The Company shall default in the observance or
performance of any agreement contained in subsection 7.7(a) or Section
8 of this Agreement or Holdings shall default in the observance or
performance of any agreement contained in Section 5 of the Holdings
Pledge Agreement or the Company shall default in the observance or
performance of any agreement contained in subsections 3(a), (h)
through (k) and (o) of the Company Security Agreement or Holdings
shall default in the observance or performance of any agreement
contained in Section 10 of the Holdings Guarantee, or, with respect to
any Subsidiary which becomes a Credit Party on or after the Closing
Date, the Company or such Subsidiary shall default in the observance
or performance of the corresponding provisions of the pledge
agreement, guarantee and security agreement to which it is a party; or
(d) Any Credit Party shall default in the observance or
performance of any other agreement contained in any Credit Document
and such default shall continue unremedied for a period of 30 days; or
(e) The Company or any of its Subsidiaries shall (i) default
in any payment of principal of or interest on or other amounts in
respect of any Indebtedness (other than the Loans, the L/C Obligations
and any inter-company debt) or Interest Rate Agreement or in the
payment of any Contingent Obligation, beyond the period of grace, if
any, provided in the instrument or agreement under which such
Indebtedness, Interest Rate Agreement or Contingent Obligation was
created; or (ii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness, Interest
Rate Agreement or Contingent Obligation or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder or
holders of such Indebtedness or beneficiary or beneficiaries of such
Contingent Obligation (or a trustee or agent on behalf of such holder
or holders or beneficiary or beneficiaries) to cause, with the giving
of notice if required, such Indebtedness to become due prior to its
stated maturity, any applicable grace period having expired, or such
Contingent Obligation to become payable, any applicable grace period
having expired; in each case, provided that the aggregate principal
amount of all such Indebtedness, Interest Rate Agreements and
Contingent Obligations under which a payment default exists as in (a)
above or which would then become due or payable equals or exceeds
$10,000,000; or
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(f) (i) The Company or any of its Subsidiaries or Holdings
shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it as bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its
debts or (B) seeking appointment of a receiver, trustee, custodian or
other similar official for it or for all or any substantial part of
its assets, or the Company or any of its Subsidiaries or Holdings
shall make a general assignment for the benefit of its creditors; or
(ii) there shall be commenced against the Company or any of its
Subsidiaries or Holdings any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry
of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days;
or (iii) there shall be commenced against the Company or any of its
Subsidiaries or Holdings any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not
have been vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; or (iv) the Company or any of
its Subsidiaries or Holdings shall take any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in, any of
the acts set forth in clause (i), (ii), or (iii) above; or (v) the
Company or any of its Subsidiaries or Holdings shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay
its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan which is not otherwise exempted, (ii) any
"accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan, (iii) a
Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed,
to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a
trustee is likely to result in the termination of such Single Employer
Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, (v) the Company or
any Commonly Controlled Entity shall incur any material liability in
connection with a withdrawal from, or the Insolvency or Reorganization
of, a Multiemployer Plan; and in each case in clauses (i) through (v)
above, such event or condition, together with all other such events or
conditions relating to a Plan, if any, would be reasonably likely to
subject the Company or any of its Subsidiaries to any tax, penalty or
other liabilities in the aggregate material in relation to the
business, assets, condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries taken as a whole; or
(h) One or more judgments or decrees shall be entered against
the Company or any of its Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance) of $10,000,000 or
more and all such judgments or decrees shall
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not have been vacated, discharged, stayed or bonded pending appeal
within the time required by the terms of such judgment; or
(i) Any Credit Document shall cease, for any reason, to be in
full force and effect or any Credit Party or any of its Subsidiaries
shall so assert in writing, or any Pledge Agreement or Security
Agreement shall cease to be effective to grant a perfected Lien on the
collateral described therein with the priority purported to be created
thereby (other than as a result of any action or inaction on the part
of the Administrative Agent or the Lenders), subject to such
exceptions as may be permitted therein, and in the case of any
Security Agreement such condition shall continue unremedied for 30
days after notice thereof to the Company by the Administrative Agent
or any Lender; or
(j) There shall have occurred a Change in Control; or
(k) Holdings shall engage in any business or activity other
than owning the Capital Stock of the Company and activities reasonably
incidental thereto;
(l) (i) There shall have occurred any amendment, supplement
or other modification of any of the Permanent Subordinated Debt or the
documents governing such Permanent Subordinated Debt, which in any
such case shall not have been consented to in advance in writing by
the Administrative Agent and the Required Lenders, except (A) as
otherwise expressly permitted by subsection 8.13 or (B) to the extent
such amendment, supplement or modification gives effect to any
prepayment, retirement or redemption of Permanent Subordinated Debt
expressly permitted by this Agreement or (ii) the subordination
provisions of any document governing any Permanent Subordinated Debt
shall cease, for any reason, to be valid or any Credit Party or any of
its Subsidiaries shall so assert in writing;
then, and in any such event, (a) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Company,
automatically (i) the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement, the Notes and the other Credit Documents shall immediately
become due and payable, and (ii) all obligations of the Company in respect of
the Letters of Credit, although contingent and unmatured, shall become
immediately due and payable and the Issuing Lender's obligations to issue the
Letters of Credit shall immediately terminate and (b) if such event is any
other Event of Default, so long as any such Event of Default shall be
continuing, either or both of the following actions may be taken: (i) with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Company, declare the Commitments and the Issuing Lender's obligations to
issue the Letters of Credit to be terminated forthwith, whereupon the
Commitments and such obligations shall immediately terminate; and (ii) with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice of
default to the Company, (A) declare all or a portion of the Loans hereunder
(with accrued interest thereon) and all other amounts owing under this
Agreement and the Notes to be due and payable forthwith, whereupon the same
shall immediately become due and payable, and
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(B) declare all or a portion of the obligations of the Company in respect of
the Letters of Credit, although contingent and unmatured, to be due and payable
forthwith, whereupon the same shall immediately become due and payable and/or
demand that the Company discharge any or all of the obligations supported by
the Letters of Credit by paying or prepaying any amount due or to become due in
respect of such obligations. All payments under this Section 9 on account of
undrawn Letters of Credit shall be made by the Company directly to a cash
collateral account established by the Administrative Agent for such purpose for
application to the Company's reimbursement obligations under subsection 3.8 as
drafts are presented under the Letters of Credit, with the balance, if any, to
be applied to the Company's obligations under this Agreement and the Notes as
the Administrative Agent shall determine with the approval of the Required
Lenders. Except as expressly provided above in this Section 9, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 10. THE ADMINISTRATIVE AGENT; THE ISSUING LENDER
10.1 Appointment. Each Lender hereby irrevocably designates
and appoints Chase as the Administrative Agent and ▇▇▇▇▇▇ as the Documentation
Agent under this Agreement and irrevocably authorizes Chase as Administrative
Agent for such Lender, to take such action on its behalf under the provisions
of the Credit Documents and to exercise such powers and perform such duties as
are expressly delegated to the Administrative Agent by the terms of the Credit
Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, neither the Administrative Agent nor the Documentation Agent shall
have any duties or responsibilities, except those expressly set forth herein,
or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into the Credit Documents or otherwise exist against the Administrative Agent
or the Documentation Agent.
10.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and each of the other Credit
Documents by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care, except
as otherwise provided in subsection 10.3.
10.3 Exculpatory Provisions. None of the Administrative
Agent or any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates shall be (i) liable for any action lawfully taken or omitted to
be taken by it or such Person under or in connection with the Credit Documents
(except for its or such Person's own gross negligence or willful misconduct) or
(ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Credit Party or any
officer thereof contained in the Credit Documents or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with the Credit Documents or
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of the Credit Documents or for any failure of any Credit Party to
perform its obligations thereunder. The Administrative Agent shall not be
under any obligation to any
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Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, any Credit Document or to
inspect the properties, books or records of any Credit Party.
10.4 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Note, the writings maintained in the Register, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex
or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Company), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take
any action under any Credit Document unless it shall first receive such advice
or concurrence of the Required Lenders (or, where a higher percentage of the
Lenders is expressly required hereunder, such Lenders) as it deems appropriate
or it shall first be indemnified to its satisfaction by the Lenders against any
and all liability and expense which may be incurred by it by reason of taking
or continuing to take any such action. The Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, under any
Credit Document in accordance with a request of the Required Lenders (or, where
a higher percentage of the Lenders is expressly required hereunder, such
Lenders), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Notes.
10.5 Notice of Default. The Administrative Agent shall not
be deemed to have knowledge or notice of the occurrence of any Default or Event
of Default hereunder unless the Administrative Agent has received written
notice from a Lender or the Company referring to this Agreement, describing
such Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives such a notice,
the Administrative Agent shall promptly give notice thereof to the Lenders.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders;
provided that unless and until the Administrative Agent shall have received
such directions, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of
the Lenders.
10.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that none of the Administrative Agent, the
Documentation Agent or any of their respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates has made any representations or
warranties to it and that no act by the Administrative Agent, the Documentation
Agent or any such Person hereinafter taken, including any review of the affairs
of the Credit Parties, shall be deemed to constitute any representation or
warranty by the Administrative Agent, the Documentation Agent or any such
Person to any Lender. Each Lender represents to the Administrative Agent and
the Documentation Agent that it has,
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independently and without reliance upon the Administrative Agent, the
Documentation Agent or any such Person or any other Lender, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property, financial and
other condition and creditworthiness of Holdings, the Company and its
Subsidiaries and made its own decision to make its Loans hereunder and enter
into this Agreement. Each Lender also represents that it will, independently
and without reliance upon the Administrative Agent, the Documentation Agent or
any such Person or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
the Credit Documents, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other
condition and creditworthiness of Holdings, the Company and its Subsidiaries.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, operations, property, financial
and other condition or creditworthiness of the Credit Parties which may come
into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
10.7 Indemnification. The Lenders agree to indemnify the
each of the Administrative Agent and the Documentation Agent in its capacity as
such (to the extent not reimbursed by the Credit Parties and without limiting
the obligation of the Credit Parties to do so), ratably according to the
respective amounts of their respective Commitments (or, to the extent such
Commitments have been terminated, according to the respective outstanding
principal amounts of the Loans and the L/C Obligations and the respective
obligations, whether as Issuing Lender or a Participating Lender, under the
Letter of Credit), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including without
limitation at any time following the payment of the Notes) be imposed on,
incurred by or asserted against the Administrative Agent or the Documentation
Agent in any way relating to or arising out of the Credit Documents or any
documents contemplated by or referred to herein or the transactions
contemplated hereby or any action taken or omitted by the Administrative Agent
or the Documentation Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Administrative
Agent's or the Documentation Agent's respective gross negligence or willful
misconduct. The agreements in this subsection 10.7 shall survive the payment
of the Notes and all other amounts payable hereunder.
10.8 The Administrative Agent in its Individual Capacity.
The Administrative Agent, the Documentation Agent and their respective
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with Holdings, the Company and its Subsidiaries as though the
Administrative Agent was not the Administrative Agent hereunder and the
Documentation Agent was not the Documentation Agent hereunder. With respect to
its Loans made or renewed by it and any Note issued to either of them, the
Administrative Agent and the Documentation Agent shall each have the same
rights and powers, duties and liabilities under the Credit Documents as any
Lender and may exercise the
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same as though it were not the Administrative Agent and the Documentation
Agent, respectively, and the terms "Lender" and "Lenders" shall include the
Administrative Agent and the Documentation Agent in their respective individual
capacities.
10.9 Successor Agent. The Administrative Agent may resign as
Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under the Credit
Documents, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders which successor agent shall, so long as no
Event of Default has occurred and is continuing, be approved by the Company,
which shall not unreasonably withhold its approval, whereupon such successor
agent shall succeed to the rights, powers and duties of the Administrative
Agent and the term "Administrative Agent" shall mean such successor agent
effective upon its appointment and approval, and the former Administrative
Agent's rights, powers and duties as Administrative Agent shall be terminated,
without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement or any holders of
the Notes. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Section 10 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under the Credit Documents.
10.10 Issuing Lender as Issuer of Letters of Credit. Each
Lender which is a holder of a Revolving Credit Commitment (collectively
"Revolving Credit Lenders") hereby acknowledges that the provisions of this
Section 10 shall apply to the Issuing Lender, in its capacity as issuer of the
Letters of Credit, in the same manner as such provisions are expressly stated
to apply to the Administrative Agent, except that obligations to indemnify the
Issuing Lender shall be ratable among the Revolving Credit Lenders in
accordance with their respective Revolving Credit Commitments (or, if the
Revolving Credit Commitments have been terminated, the outstanding principal
amount of their respective Revolving Credit Loans and L/C Obligations and their
respective participating interests in the outstanding Letters of Credit).
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. Except as otherwise expressly
set forth in this Agreement, no Credit Document nor any terms thereof may be
amended, supplemented, waived or modified except in accordance with the
provisions of this subsection 11.1. With the written consent of the Required
Lenders, the Administrative Agent and the respective Credit Parties or their
Subsidiaries may, from time to time, enter into written amendments, supplements
or modifications hereto for the purpose of adding any provisions to any Credit
Document to which they are parties or changing in any manner the rights of the
Lenders or of any such Credit Party or its Subsidiaries thereunder or waiving,
on such terms and conditions as the Administrative Agent may specify in such
instrument, any of the requirements of any such Credit Document or any Default
or Event of Default and its consequences; provided, however, that:
(a) no such waiver and no such amendment, supplement or
modification shall release collateral not required or permitted by any
Credit Document to be released and
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which, in the aggregate with all other collateral released pursuant to
this clause (a) (other than collateral released pursuant to the
proviso to this clause (a)) during the calendar year in which such
proposed release would be effected and the immediately preceding
calendar year, has fair market value on the proposed date of release
in excess of 20% of the fair market value of all collateral on such
date without the written consent of the Supermajority Lenders;
provided that, notwithstanding the foregoing, this clause (a) shall
not be applicable to and no consent shall be required for (i) releases
of collateral in connection with any Asset Sales permitted by
subsection 8.5, (ii) releases of collateral in accordance with
subsection 11.11 or (iii) upon the reincorporation of the Company or
any Subsidiary in a new jurisdiction or the creation of a new
Subsidiary of the Company, any release of collateral in connection
with the transfer of such released collateral to such reincorporated
entity or new Subsidiary in compliance with subsection 8.4, provided
that the Administrative Agent, in its sole discretion, determines that
such release and transfer, together with any grant and perfection of a
new Lien therein in favor of the Administrative Agent, will cause no
material impairment of the value of the collateral taken as a whole,
after giving effect to such release and transfer;
(b) no such waiver and no such amendment, supplement or
modification shall extend the final maturity date of any Note or the
scheduled payment date of any installment of any Loan, or reduce the
rate or extend the time of payment of interest thereon, or change the
method of calculating interest thereon, or reduce any fee payable to
the Lenders hereunder, or reduce the principal amount thereof, or
change the amount of any Lender's Commitment or Commitment Percentage,
or amend, modify or waive any provision of subsection 4.9(b) or this
subsection 11.1 or reduce the percentage specified in the definition
of Required Lenders or reduce the percentage specified in the
definition of Supermajority Lenders or reduce the percentage specified
in the definition of Section 4.4 Lenders or consent to the assignment
or transfer by any Credit Party of any of its rights and obligations
under any Credit Document, in each case, without the prior written
consent of each Lender directly affected thereby;
(c) no such waiver and no such amendment, supplement or
modification affecting the then Administrative Agent or Issuing Lender
shall amend, modify or waive any provision of Section 10 without the
written consent of such Administrative Agent or Issuing Lender;
(d) without the consent of the Lenders which are holders of
the Revolving Credit Loans only, the Lenders which are holders of all
the Term Loans may amend this Agreement and the Term Loan Notes to
extend the maturities of the installments of the Term Loans; and
without the consent of the Lenders which are holders of the Term
Loans, all the Revolving Credit Lenders may amend this Agreement and
the Revolving Credit Notes to extend the Revolving Credit Termination
Date; and
(e) no such waiver, and no such amendment, supplement or
modification shall amend, modify or waive the Section 4.4 Lenders'
ability to act pursuant to subsection 4.4(b)(i), (ii), (iii) or (iv)
without the written consent of the Section 4.4 Lenders.
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Any such waiver and any such amendment, supplement or modification described in
this subsection 11.1 shall apply equally to each of the Lenders and shall be
binding upon each Credit Party and its Subsidiaries, the Lenders, the
Administrative Agent and Issuing Lender and all future holders of the Notes and
the Loans. Any extension of a Letter of Credit by the Issuing Lender shall be
treated hereunder as a new Letter of Credit. In the case of any waiver, the
Credit Parties, the Lenders, the Administrative Agent and Issuing Lender shall
be restored to their former position and rights hereunder and under the
outstanding Notes, and any Default or Event of Default waived shall be deemed
to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.
11.2 Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
telecopy or telex, if one is listed), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered by hand,
or three Business Days after being deposited in the mail, postage prepaid, or,
in the case of telecopy notice, when sent, confirmation of receipt received,
or, in the case of telex notice, when sent, answerback received, addressed as
follows in the case of the Company and the Administrative Agent and as set
forth in Schedule I in the case of any Lender, or to such other address as may
be hereafter notified by the respective parties hereto and any future holders
of the Notes:
The Company: CSK Auto, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative Agent: The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: The Chase Manhattan Bank Loan and
Agency Services
1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsections 3.4, 3.5, 4.1, 4.2, 4.3 and 4.4 shall
not be effective until received and provided that the failure to provide the
copies of notices to the Company provided for in this subsection 11.2 shall not
result in any liability to the Administrative Agent.
11.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement, the Letters of Credit and the
Notes.
11.5 Payment of Expenses and Taxes. The Company agrees (a)
to pay or reimburse the Administrative Agent for all its reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
the Credit Documents and any other documents prepared in connection herewith,
and the consummation of the transactions contemplated hereby and thereby,
including, without limitation, the reasonable fees and disbursements of one
counsel to the Administrative Agent, (b) to pay or reimburse each Lender and
the Administrative Agent for all their costs and expenses incurred in
connection with, and to pay, indemnify, and hold the Administrative Agent and
each Lender harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever arising out of or in
connection with, the enforcement or preservation of any rights under any Credit
Document and any such other documents, including, without limitation,
reasonable fees and disbursements of counsel to the Administrative Agent and
each Lender incurred in connection with the foregoing and in connection with
advising the Administrative Agent with respect to its rights and
responsibilities under this Agreement and the documentation relating thereto,
(c) to pay, indemnify, and to hold the Administrative Agent and each Lender
harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other similar taxes (other than withholding taxes), if any, which
may be payable or determined to be payable in connection with the execution and
delivery of, or consummation of any of the transactions contemplated by, or any
amendment, supplement or modification of, or any waiver or consent under or in
respect of, any Credit Document and any such other documents, and (d) to pay,
indemnify, and hold the Administrative Agent and each Lender and their
respective Affiliates, officers, directors, trustees, employees or agents
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever (including, without limitation, reasonable
fees and disbursements of counsel) which may be incurred by or asserted against
the
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Administrative Agent or the Lenders or such Affiliates, officers, directors,
trustees, employees, and agents (x) arising out of or in connection with any
investigation, litigation or proceeding related to this Agreement, the other
Credit Documents, the proceeds of the Loans or the Permanent Subordinated Debt
and the transactions contemplated by or in respect of such use of proceeds, or
any of the other transactions contemplated hereby, whether or not the Company,
the Administrative Agent or any of the Lenders or such Affiliates, officers or
directors is a party thereto, including, without limitation, any of the
foregoing relating to the violation of, noncompliance with or liability under,
any Environmental Law applicable to the operations of the Company, any of its
Subsidiaries or any of the facilities and properties owned, leased or operated
by the Company or any of its Subsidiaries, or (y) without limiting the
generality of the foregoing, by reason of or in connection with the execution
and delivery or transfer of, or payment or failure to make payments under,
Letters of Credit (it being agreed that nothing in this subsection 11.5(d)(y)
is intended to limit the Company's obligations pursuant to subsection 3.8) (all
the foregoing, collectively, the "indemnified liabilities"), provided that the
Company shall have no obligation hereunder with respect to indemnified
liabilities of the Administrative Agent or any Lender or any of their
respective Affiliates, officers and directors arising from (i) the gross
negligence or willful misconduct of such Administrative Agent or Lender or
their respective directors or officers or (ii) legal proceedings commenced
against the Administrative Agent or a Lender by any security holder or creditor
thereof arising out of and based upon rights afforded any such security holder
or creditor solely in its capacity as such or (iii) legal proceedings commenced
against the Administrative Agent or any such Lender by any Transferee (as
defined in subsection 11.6). The agreements in this subsection 11.5 shall
survive repayment of the Loans and all other amounts payable hereunder.
11.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Company, the Lenders, the Administrative Agent, all future holders of the Notes
and the Loans, and their respective successors and assigns, except that the
Company may not assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking or lending business and in accordance with applicable law, at any time
sell to one or more banks or other entities ("Participants") participating
interests in any Loan owing to such Lender, any participating interest in the
Letters of Credit of such Lender, any Note held by such Lender, any Commitment
of such Lender or any other interest of such Lender hereunder. In the event of
any such sale by a Lender of participating interests to a Participant, such
Lender's obligations under this Agreement and the other Credit Documents to the
other parties to this Agreement shall remain unchanged, such Lender shall
remain solely responsible for the performance thereof, such Lender shall remain
the holder of any such Note for all purposes under this Agreement and Holdings,
the Company and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Credit Documents. The Company
agrees that if amounts outstanding under this Agreement and the Notes are due
and unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall be deemed to
have the right of setoff in respect of its participating interest in amounts
owing under this Agreement and any Note to the same extent
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as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement or any Note; provided, that such right of setoff
shall be subject to the obligation of such Participant to share with the
Lenders, and the Lenders agree to share with such Participant, as provided in
subsection 11.7. The Company also agrees that each Participant shall be
entitled to the benefits of subsections 3.10, 4.11 and 4.12 with respect to its
participation in the Letters of Credit and in the Commitments and the Loans
outstanding from time to time as if it were a Lender; provided, that no
Participant shall be entitled to receive any greater amount pursuant to any
such subsection than the transferor Lender would have been entitled to receive
in respect of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred. Each Lender agrees
that the participation agreement pursuant to which any Participant acquires its
participating interest (or any other document) may afford voting rights to such
Participant, or any right to instruct such Lender with respect to voting
hereunder, only with respect to matters requiring the consent of either all of
the Lenders hereunder or all of the Lenders holding the relevant Term Loans or
Revolving Credit Commitments subject to such participation.
(c) Subject to paragraph (g) of this subsection 11.6, any
Lender may, in the ordinary course of its commercial banking, lending or other
business and in accordance with applicable law, (i) at any time and from time
to time assign all or any part of its rights and obligations under this
Agreement and the Notes to any Lender or any Affiliate thereof, provided that,
in the event of a sale of less than all of such rights and obligations, such
assigning Lender after any such sale to any other Lender or any Affiliate of
such Lender shall retain Commitments and/or Loans and/or L/C Participating
Interests aggregating at least $5,000,000 (or such lesser amount as the
Administrative Agent may determine), and, (ii) with the consent of the Company
and the Administrative Agent (which in each case shall not be unreasonably
withheld or delayed) at any time and from time to time assign to one or more
additional banks, mutual funds or financial institutions or entities (each, an
"Assignee"), all or any part of its rights and obligations under this Agreement
and the Notes, pursuant to an Assignment and Acceptance, executed by such
Assignee, such transferor Lender (and, in the case of an Assignee that is not
then a Lender or an Affiliate thereof, by the Company and the Administrative
Agent), and delivered to the Administrative Agent for its acceptance and
recording in the Register (as defined below); provided that, unless otherwise
consented to by the Company and the Administrative Agent, (A) each such sale
pursuant to clause (ii) of this subsection 11.6(c) shall be in a principal
amount of $5,000,000 or more unless the Assigning Lender is transferring all of
its rights and obligations and (B) in the event of a sale of less than all of
such rights and obligations, such Lender after any such sale shall retain
Commitments and/or Loans and/or L/C Participating Interests aggregating at
least $5,000,000. Upon such execution, delivery, acceptance and recording,
from and after the effective date determined pursuant to such Assignment and
Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the
extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with a Commitment, if any, as set forth
therein, and (y) the assigning Lender thereunder shall, to the extent of the
interest transferred, as reflected in such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of a
Assignment and Acceptance covering all or the remaining portion of a transferor
Lender's rights and obligations under this Agreement, such transferor Lender
shall cease to be a party hereto, except that it shall remain entitled to the
benefit of all indemnities and other provisions stated to survive the
termination hereof).
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(d) The Administrative Agent, which for purposes of this
subsection 11.6(d) only shall be deemed the agent of the Company, shall
maintain at the address of the Administrative Agent referred to in subsection
11.2 a copy of each Assignment and Acceptance delivered to it and a register
(the "Register") for the recordation of the names and addresses of the Lenders
and the Commitments of, and principal amounts of the Loans owing to, each
Lender from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Company, the Administrative Agent and
the Lenders shall treat each Person whose name is recorded in the Register as
the owner of a Loan or other obligation hereunder as the owner thereof for all
purposes of this Agreement and the other Credit Documents, notwithstanding any
notice to the contrary. Any assignment of any Loan or other obligation
hereunder shall be effective only upon appropriate entries with respect thereto
being made in the Register. The Register shall be available for inspection by
the Company or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or an Affiliate thereof, by the Company and the
Administrative Agent), together with payment to the Administrative Agent of a
registration and processing fee of $4,000 if the Assignee is not a Lender prior
to the execution of such supplement and $1,000 otherwise, the Administrative
Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the
effective date determined pursuant thereto record the information contained
therein in the Register and give notice of such acceptance and recordation to
the Lenders and the Company. On or prior to such effective date, the Company
at its own expense, shall execute and deliver to the Administrative Agent (in
exchange for any or all of the Term Loan Note, or Revolving Credit Notes of the
assigning Lender, if any ) new Term Loan Note, or Revolving Credit Notes, as
the case may be, to the order of such Assignee (if requested by such Assignee)
in an amount equal to the Revolving Credit Commitment or the Term Loans, as the
case may be, assumed by it pursuant to such Assignment and Acceptance and, if
the assigning Lender has retained a Commitment or any Term Loans hereunder, new
Term Loan Note, or Revolving Credit Notes, as the case may be, to the order of
the assigning Lender in an amount equal to the Commitment or such Term Loans,
as the case may be, retained by it hereunder (if requested). Such new Notes
shall be dated the Closing Date and shall otherwise be in the form of the Notes
replaced thereby.
(f) The Lenders agree that they will use reasonable efforts
to protect the confidentiality of any confidential information concerning
Holdings, the Company and its Subsidiaries and Affiliates. Notwithstanding the
foregoing, the Company authorizes each Lender to disclose to any Participant or
Assignee (each, a "Transferee") and any prospective Transferee or to any Person
who is required to approve, structure or administer the Loans on behalf of a
Lender any and all information in such Lender's possession concerning Holdings,
the Company and its Subsidiaries which has been delivered to such Lender by or
on behalf of Holdings or the Company pursuant to this Agreement or which has
been delivered to such Lender by or on behalf of Holdings, or the Company in
connection with such Lender's credit evaluation of Holdings, the Company and
its Subsidiaries and Affiliates prior to becoming a party to this Agreement;
provided that each Lender shall cause its respective prospective
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Transferees and such other Persons to agree in writing to protect the
confidentiality of any confidential information concerning Holdings, the
Company and its Subsidiaries.
(g) If, pursuant to this subsection 11.6, any interest in
this Agreement or any Note is transferred to any Transferee which is organized
under the laws of any jurisdiction other than the United States or any State
thereof, the transferor Lender shall cause such Transferee, concurrently with
the effectiveness of such transfer either (1) in the case of a Transferee that
is a "bank" within the meaning of Section 881(c)(3)(A) of the Code, (i) to
represent to the transferor Lender (for the benefit of the transferor Lender,
the Administrative Agent and the Company) that under applicable law and
treaties no taxes will be required to be withheld by the Administrative Agent,
the Company or the transferor Lender with respect to any payments to be made to
such Transferee in respect of the Loans or L/C Participating Interests, (ii) to
furnish to the transferor Lender (and, in the case of any Transferee registered
in the Register, the Administrative Agent and the Company) either U.S. Internal
Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein
such Transferee claims entitlement to complete exemption from U.S. federal
withholding tax on all interest payments hereunder) and (iii) to agree (for the
benefit of the transferor Lender, the Administrative Agent and the Company) to
provide the transferor Lender (and, in the case of any Transferee registered in
the Register, the Administrative Agent and the Company) a new Form 4224 or Form
1001 upon the expiration or obsolescence of any previously delivered form and
comparable statements in accordance with applicable U.S. laws and regulations
and amendments duly executed and completed by such Transferee, and to comply
from time to time with all applicable U.S. laws and regulations with regard to
such withholding tax exemption or (2) in the case of any Transferee that is not
a "bank" within the meaning of Section 881(c)(3)(A) of the Code, (i) to
represent to the transferor Lender (for the benefit of the transferor Lender,
the Administrative Agent and the Company) that it is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code, (ii) to furnish to the transferor
Lender (and, in the case of any Transferee registered in the Register, to the
Company), with a copy to the Administrative Agent, (A) a Subsection 4.11(d)(2)
Certificate and (B) two (2) accurate and complete original signed copies of
Internal Revenue Service form W-8, certifying to such Transferee's legal
entitlement on the date of the effectiveness of such transfer to an exemption
from U.S. withholding tax under the provisions of Section 881(c) of the Code
with respect to all payments to be made under this Agreement, and (iii) to
agree (for the benefit of the transferor Lender, the Administrative Agent and
the Company), to the extent legally entitled to do so, upon reasonable request
by the transferor Lender (or, in the case of any Transferee registered in the
Register, the Administrative Agent or the Company), to provide to the
transferor Lender, the Administrative Agent and the Company such other forms as
may be required in order to establish the legal entitlement of such Transferee
to an exemption from withholding tax with respect to payments under this
Agreement.
(h) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
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11.7 Adjustments; Set-off. (a) If any Lender (a "benefitted
Lender") shall at any time receive any payment of all or part of any of its
Loans or L/C Participating Interests, as the case may be, or interest thereon,
or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in clause (f) of Section 9, or otherwise) in a greater proportion
than any such payment to and collateral received by any other Lender, if any,
in respect of such other Lender's Loans or L/C Participating Interests, as the
case may be, or interest thereon, such benefitted Lender shall purchase for
cash from the other Lenders such portion of each such other Lender's Loans or
L/C Participating Interests, as the case may be, or shall provide such other
Lenders with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefitted Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest. The Company agrees that each Lender so
purchasing a portion of another Lender's Loans and/or L/C Participating
Interests may exercise all rights of payment (including, without limitation,
rights of set-off) with respect to such portion as fully as if such Lender were
the direct holder of such portion. The Administrative Agent shall promptly
give the Company notice of any set-off, provided that the failure to give such
notice shall not affect the validity of such set-off.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Company, any such notice being expressly waived by the Company to the extent
permitted by applicable law, upon the filing of a petition under any of the
provisions of the federal bankruptcy code or amendments thereto, by or against;
the making of an assignment for the benefit of creditors by; the application
for the appointment, or the appointment, of any receiver of, or of any
substantial portion of the property of; the issuance of any execution against
any substantial portion of the property of; the issuance of a subpoena or
order, in supplementary proceedings, against or with respect to any substantial
portion of the property of; or the issuance of a warrant of attachment against
any substantial portion of the property of; the Company to set-off and apply
against any indebtedness, whether matured or unmatured, of the Company to such
Lender, any amount owing from such Lender to the Company, at or at any time
after, the happening of any of the above mentioned events, and as security for
such indebtedness, the Company hereby grants to each Lender a continuing
security interest in any and all deposits, accounts or moneys of the Company
then or thereafter maintained with such Lender, subject in each case to
subsection 11.7(a) of this Agreement. The aforesaid right of set-off may be
exercised by such Lender against the Company or against any trustee in
bankruptcy, debtor in possession, assignee for the benefit of creditors,
receiver or execution, judgment or attachment creditor of the Company, or
against anyone else claiming through or against the Company or such trustee in
bankruptcy, debtor in possession, assignee for the benefit of creditors,
receiver, or execution, judgment or attachment creditor, notwithstanding the
fact that such right of set-off shall not have been exercised by such Lender
prior to the making, filing or issuance, or service upon such Lender of, or of
notice of, any such petition; assignment for the benefit of creditors;
appointment or application for the appointment of a receiver; or issuance of
execution, subpoena, order or warrant. Each Lender agrees promptly to notify
the Company and the Administrative Agent after any such set-off and application
made by such Lender,
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provided that the failure to give such notice shall not affect the validity of
such set-off and application.
11.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. A set of the copies of this Agreement signed by all
the parties shall be lodged with the Company and the Administrative Agent.
This Agreement shall become effective with respect to the Company, the
Administrative Agent and the Lenders when the Administrative Agent shall have
received copies of this Agreement executed by the Company and the Lenders, or,
in the case of any Lender, shall have received telephonic confirmation from
such Lender stating that such Lender has executed counterparts of this
Agreement or the signature pages hereto and sent the same to the Administrative
Agent.
11.9 Governing Law; No Third Party Rights. This Agreement
and the Notes and the rights and obligations of the parties under this
Agreement and the Notes shall be governed by, and construed and interpreted in
accordance with, the law of the State of New York. This Agreement is solely
for the benefit of the parties hereto and their respective successors and
assigns, and, except as set forth in subsection 11.6, no other Persons shall
have any right, benefit, priority or interest under, or because of the
existence of, this Agreement.
11.10 Submission to Jurisdiction; Waivers. (a) Each party
to this Agreement hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to this Agreement or any of the other
Credit Documents, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts
from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts, and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such party at its address set forth in subsection 11.2 or
at such other address of which the Administrative Agent shall have
been notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to ▇▇▇ in any other jurisdiction.
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(b) Each party hereto unconditionally waives trial by jury in
any legal action or proceeding referred to in paragraph (a) above and any
counterclaim therein.
11.11 Releases. The Administrative Agent and the Lenders
agree to cooperate with the Company and its Subsidiaries with respect to any
sale or other disposition permitted by subsection 8.5 and promptly take such
action and execute and deliver such instruments and documents necessary to
release the liens and security interests created by the Security Documents
relating to any of the assets or property affected by any such sale permitted
by subsection 8.5 including, without limitation, any Uniform Commercial Code
amendment, release or termination or partial release or termination statements.
11.12 Interest. Each provision in this Agreement and each
other Credit Document is expressly limited so that in no event whatsoever shall
the amount paid, or otherwise agreed to be paid, by the Company for the use,
forbearance or detention of the money to be loaned under this Agreement or any
other Credit Document or otherwise (including any sums paid as required by any
covenant or obligation contained herein or in any other Credit Document which
is for the use, forbearance or detention of such money), exceed that amount of
money which would cause the effective rate of interest to exceed the highest
lawful rate permitted by applicable law (the "Highest Lawful Rate"), and all
amounts owed under this Agreement and each other Credit Document shall be held
to be subject to reduction to the effect that such amounts so paid or agreed to
be paid which are for the use, forbearance or detention of money under this
Agreement or such Credit Document shall in no event exceed that amount of money
which would cause the effective rate of interest to exceed the Highest Lawful
Rate. Notwithstanding any provision in this Agreement or any other Credit
Document to the contrary, if the maturity of the Loans or the obligations in
respect of the other Credit Documents are accelerated for any reason, or in the
event of any prepayment of all or any portion of the Loans or the obligations
in respect of the other Credit Documents by the Company or in any other event,
earned interest on the Loans and such other obligations of the Company may
never exceed the Highest Lawful Rate, and any unearned interest otherwise
payable on the Loans or the obligations in respect of the other Credit
Documents that is in excess of the Highest Lawful Rate shall be cancelled
automatically as of the date of such acceleration or prepayment or other such
event and (if theretofore paid) shall, at the option of the holder of the Loans
or such other obligations, be either refunded to the Company or credited on the
principal of the Loans. In determining whether or not the interest paid or
payable, under any specific contingency, exceeds the Highest Lawful Rate, the
Company and the Lenders shall, to the maximum extent permitted by applicable
law, amortize, prorate, allocate and spread, in equal parts during the period
of the actual term of this Agreement, all interest at any time contracted for,
charged, received or reserved in connection with this Agreement.
11.13 Special Indemnification. Notwithstanding any provision
in this Agreement to the contrary, (A) each Lender, or Transferee of any Lender
pursuant to subsection 11.6(g) of this Agreement, shall indemnify the Company
and the Administrative Agent, and hold each of them harmless against any and
all payments, expenses or taxes which the Company or the Administrative Agent
may become subject to or obligated to pay if and to the extent that, (i) on the
Closing Date or the effective date of transfer, as the case may be, such
Lender, or such Transferee of a Lender pursuant to subsection 11.6(g) of this
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Agreement, (a) makes the representation and covenants set forth in subsection
4.11(d)(2) of this Agreement, or, in the case of a Transferee, pursuant to
subsection 11.6(g)(2) of this Agreement and the Assignment and Acceptance and
(b) is not in fact also qualified to make the representation and covenants set
forth in subsection 4.11(d)(1) of this Agreement or, in the case of a
Transferee, pursuant to subsection 11.6(g)(1) of this Agreement and the
Assignment and Acceptance and (ii) as a result of any Change in Law or
compliance by such Lender, or Transferee, with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority the Company or the Administrative Agent are required to
make any additional payments on account of U.S. withholding taxes and amounts
related thereto with respect to any payments under this Agreement, any Note, or
a Eurodollar Loan, made prior to such Change in Law or request or directive,
none of which payments would have been required if such Lender, or Transferee,
was qualified on the Closing Date or the date of the transfer, as the case may
be, to make the representation and covenants set forth in subsection 4.11(d)(1)
of this Agreement or pursuant to subsection 11.6(g)(1) of this Agreement and
the Assignment and Acceptance, as the case may be, and (B) each Lender, or
Transferee, agrees that to the extent any amount payable by such Lender or
Transferee pursuant to this subsection 11.13 remains unpaid on any Interest
Payment Date or the date on which any prepayment is made, the Company shall
have the right to set-off against any payment due to such Lender or Transferee
on such date any amounts owing to the Company pursuant to this subsection
11.13.
11.14 Permitted Payments and Transactions. Notwithstanding
any provision to the contrary contained in this Agreement, the Company and its
Subsidiaries shall be permitted to pay fees and expenses pursuant to or in
respect of, the following agreements, and, in the case of clauses (a) and (d)
below, to engage in the following transactions: (a)(i) the Management Advisory,
Strategic Planning and Consulting Services Agreement between Investcorp
International, Inc. and the Company, (ii) the Stock Purchase Agreement and the
exhibits and schedules thereto, (iii) the Real Estate Financing Agreement, (iv)
Indebtedness payable to Transatlantic Finance, Ltd. in the aggregate amount of
$16.5 million, (v) payments made under the equity participation program
resulting from the Acquisition and Financings, (vi) the Equity Placement Fee
Agreement between Holdings and Investcorp Bank E.C., and (vii) the Acquisition
Fee Agreement between Holdings and TG Investments, Ltd., (b) agreements with
any Person or Persons providing for the payment of customary fees in connection
with serving as a director of the Company or any Subsidiary of the Company; (c)
agreements providing for the payment of commercially reasonable fees in
connection with any permitted financing, refinancing, sale, transfer, sale and
leaseback or other permitted disposition of any stock or assets of the Company
or its Subsidiaries; (d) the borrowing of any Indebtedness to the extent, and
upon the terms and conditions, the same is expressly permitted under subsection
8.1; and (e) agreements providing for commercially reasonable fees in
connection with any permitted purchase or acquisition of assets by the Company
or any of its Subsidiaries.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in New York, New York by their
proper and duly authorized officers as of the day and year first above written.
CSK AUTO, INC.
By: -----------------------------------
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent, Issuing Lender
and a Lender
By: -----------------------------------
Title:
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
as Documentation Agent and a Lender
By: -----------------------------------
Title: Authorized Signatory
98
ANNEX A
PRICING GRID
Revolving
Credit Loans Term Loans
----------------------------------- -----------------------------------
Leverage Alternate Base Eurodollar Rate Alternate Base Eurodollar Rate Commitment Fee
Ratio Rate Loans Loans Rate Loans Loans Rate
-------- -------------- --------------- -------------- --------------- --------------
>4.5 to 1 1.25% 2.25% 1.50% 2.50% .50%
< or = 4.5 1.00% 2.00% 1.25% 2.25% .50%
to 1
< or = 4.0 .75% 1.75% 1.00% 2.00% .375%
to 1
< or = 3.5 .50% 1.50% .75% 1.75% .375%
to 1
< or = 3.0 .25% 1.25% .75% 1.75% .30%
to 1
Changes in the Applicable Margin or the Commitment Fee Rate resulting from
changes in the Leverage Ratio shall become effective on the date (the
"Adjustment Date") on which financial statements are delivered to the Lenders
pursuant to subsection 7.1(a) or (b) (but in any event not later than the 45th
day after the end of each of the first three quarterly periods of each fiscal
year or the 90th day after the end of each fiscal year, as the case may be) and
(b) and shall remain in effect until the next change to be effected pursuant to
this paragraph. If any financial statements referred to above are not
delivered within the time periods specified in subsection 7.1, then, until such
financial statements are delivered, the Leverage Ratio shall be deemed to be
the same as with respect to the immediately preceding period; provided,
however, that if such financial statements, when actually delivered, would have
required an increase in the Applicable Margin or Commitment Fee Rate over the
Applicable Margin or Commitment Fee Rate, as the case may be, in effect
immediately prior to the date such financial statements were due, the Company
shall promptly pay to the Lenders and the Administrative Agent any additional
amounts of interest or fees which would have been payable on any previous
Interest Payment Date had such higher Applicable Margin or Commitment Fee Rate,
as the case may be, been in effect from the date such financial statements were
required to be delivered.
99
SCHEDULE I
LIST OF ADDRESSES FOR NOTICES;
COMMITMENT AMOUNTS
THE CHASE MANHATTAN BANK
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment Amounts:
------------------
Revolving Credit Commitment $21,000,000.00
Term Loan Commitment $4,000,000.00
Commitment Percentage:
---------------------
Revolving Credit 16.80%
Term Loan 2.35%
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment Amount:
-----------------
Revolving Credit Commitment $4,250,000.00
Term Loan Commitment $4,000,000.00
Commitment Percentage:
---------------------
Revolving Credit 3.40%
Term Loan 2.35%
▇▇▇▇▇▇ SYNDICATED LOANS INC.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
100
2
Commitment Amount:
-----------------
Revolving Credit Commitment $15,250,000.00
Term Loan Commitment $0.00
Commitment Percentage:
---------------------
Revolving Credit 12.00%
Term Loan 0.00%
FLEET NATIONAL BANK
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment Amounts:
------------------
Revolving Credit Commitment $13,500,000.00
Term Loan Commitment $9,000,000.00
Commitment Percentage:
---------------------
Revolving Credit 10.80%
Term Loan 5.20%
DLJ CAPITAL FUNDING, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment Amounts:
------------------
Revolving Credit Commitment $0.00
Term Loan Commitment $10,000,000.00
Commitment Percentage:
---------------------
Revolving Credit 0.00%
Term Loan 5.88%
101
3
NATIONAL BANK OF CANADA, A CANADIAN CHARTERED BANK,
NEW YORK BRANCH
▇▇▇ ▇. ▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment Amounts:
------------------
Revolving Credit Commitment $12,000,000.00
Term Loan Commitment $0.00
Commitment Percentage:
---------------------
Revolving Credit 9.60%
Term Loan 0.00%
BANKBOSTON
Diversified Finance
▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ van der ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment Amounts:
------------------
Revolving Credit Commitment $13,500,000.00
Term Loan Commitment $9,000,000.00
Commitment Percentage:
---------------------
Revolving Credit 10.80%
Term Loan 5.20%
NATIONAL WESTMINSTER BANK, PLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Field ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment Amounts:
------------------
Revolving Credit Commitment $10,000,000.00
Term Loan Commitment $12,000,000.00
102
4
Commitment Percentage:
---------------------
Revolving Credit 8.00%
Term Loan 7.06%
PAMCO CAYMAN LTD*
1150 Two Galleria Tower
▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇ #▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment Amounts:
------------------
Revolving Credit Commitment $0.00
Term Loan Commitment $5,000,000.00
Commitment Percentage:
---------------------
Revolving Credit 0.00%
Term Loan 2.94%
ML CBO IV (CAYMAN) LTD.*
1150 Two Galleria Tower
▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇ #▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment Amounts:
------------------
Revolving Credit Commitment $0.00
Term Loan Commitment $10,000,000.00
Commitment Percentage:
---------------------
Revolving Credit 0.00%
Term Loan 5.85%
----------------------
* Organization to take by assignment post-closing.
103
5
PRIME INCOME TRUST
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment Amounts:
------------------
Revolving Credit Commitment $0.00
Term Loan Commitment $20,000,000.00
Commitment Percentage:
---------------------
Revolving Credit 0.00%
Term Loan 11.74%
▇▇▇▇▇ FARGO BANK, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment Amounts:
------------------
Revolving Credit Commitment $13,500,000.00
Term Loan Commitment $9,000,000.00
Commitment Percentage:
---------------------
Revolving Credit 10.80%
Term Loan 5.20%
FIRST UNION NATIONAL BANK
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment Amounts:
------------------
Revolving Credit Commitment $10,000,000.00
Term Loan Commitment $5,000,000.00
Commitment Percentage:
---------------------
Revolving Credit 9.60%
Term Loan 2.94%
104
6
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Koji Sasayama
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment Amounts:
------------------
Revolving Credit Commitment $10,000,000.00
Term Loan Commitment $5,000,000.00
Commitment Percentage:
---------------------
Revolving Credit 8.00%
Term Loan 2.94%
BANK POLSKA KASA OPIEKI S.A. GROUP PEKAO
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇ ▇▇▇▇▇)
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment Amounts:
------------------
Revolving Credit Commitment $2,000,000.00
Term Loan Commitment $3,000,000.00
Commitment Percentage:
---------------------
Revolving Credit 1.60%
Term Loan 1.76%
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE FUND, INC.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment Amounts:
------------------
Revolving Credit Commitment $0.00
Term Loan Commitment $10,000,000.00
Commitment Percentage:
---------------------
Revolving Credit 0.00%
Term Loan 5.88%
105
7
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE PORTFOLIO*
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment Amounts:
------------------
Revolving Credit Commitment $0.00
Term Loan Commitment $5,000,000.00
Commitment Percentage:
---------------------
Revolving Credit 0.00%
Term Loan 2.94%
▇▇▇▇▇▇▇ ▇▇▇▇▇ DEBT STRATEGIES PORTFOLIO*
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment Amounts:
------------------
Revolving Credit Commitment $0.00
Term Loan Commitment $5,000,000.00
Commitment Percentage:
---------------------
Revolving Credit 0.00%
Term Loan 2.94%
SENIOR DEBT PORTFOLIO*
▇▇▇▇▇ ▇▇▇▇▇ Management Inc.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ Page
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment Amounts:
------------------
Revolving Credit Commitment $0.00
Term Loan Commitment $15,000,000.00
----------------------
* Organization to take by assignment post-closing.
106
8
Commitment Percentage:
---------------------
Revolving Credit 0.00%
Term Loan 8.90%
KZH HOLDING CORPORATION III
Chancellor LGT Asset Management
1166 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Commitment Amounts:
------------------
Revolving Credit Commitment $0.00
Term Loan Commitment $3,500,000.00
Commitment Percentage:
---------------------
Revolving Credit 0.00%
Term Loan 2.06%
AMARA-1 FINANCE LTD.*
Chancellor LGT Asset Management
1166 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Commitment Amounts:
------------------
Revolving Credit Commitment $0.00
Term Loan Commitment $2,000,000.00
Commitment Percentage:
---------------------
Revolving Credit 0.00%
Term Loan 1.12%
----------------------
* Organization to take by assignment post-closing.
107
9
CERES FINANCE LTD.*
Chancellor LGT Asset Management
1166 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Commitment Amounts:
------------------
Revolving Credit Commitment $0.00
Term Loan Commitment $4,500,000.00
Commitment Percentage:
---------------------
Revolving Credit 0.00%
Term Loan 2.65%
▇▇▇ ▇▇▇▇▇▇ CLO I, LIMITED*
▇▇▇ ▇▇▇▇▇▇ American Capital (Oakbrook)
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Commitment Amounts:
------------------
Revolving Credit Commitment $0.00
Term Loan Commitment $15,000,000.00
Commitment Percentage:
---------------------
Revolving Credit 0.00%
Term Loan 8.90%
CRESCENT/MACH I PARTNERS, L.P.
Trust Company of the West
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
----------------------
* Organization to take by assignment post-closing.
108
10
Commitment Amounts:
------------------
Revolving Credit Commitment $0.00
Term Loan Commitment $5,000,000.00
Commitment Percentage:
---------------------
Revolving Credit 0.00%
Term Loan 2.94%
[FUND NAME]*
Trust Company of the West
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment Amounts:
------------------
Revolving Credit Commitment $0.00
Term Loan Commitment $5,000,000.00
Commitment Percentage:
---------------------
Revolving Credit 0.00%
Term Loan 2.94%
----------------------
* Organization to take by assignment post-closing.