Exhibit 10.1
$125,000,000
AMENDED AND RESTATED SECURED SUPER-PRIORITY
DEBTOR IN POSSESSION CREDIT AGREEMENT
Dated as of May 27, 2005
among
▇▇▇▇▇▇▇▇'▇ INC.,
A DEBTOR AND DEBTOR IN POSSESSION,
as Borrower
and
THE SUBSIDIARIES OF THE BORROWER PARTY HERETO,
EACH, A DEBTOR AND DEBTOR IN POSSESSION,
as Subsidiary Guarantors
and
THE LENDERS AND ISSUERS PARTY HERETO
and
CITICORP USA, INC.,
as Administrative Agent
* * *
CITIGROUP GLOBAL MARKETS INC.,
as Sole Lead Arranger and Sole Book Runner
WEIL, GOTSHAL & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
THIS AMENDED AND RESTATED SECURED SUPER-PRIORITY DEBTOR IN
POSSESSION CREDIT AGREEMENT, dated as of May 27, 2005, among ▇▇▇▇▇▇▇▇'▇ INC.,
a Delaware corporation and a debtor and debtor in possession under chapter 11
of the Bankruptcy Code (as defined below) (the "Borrower"), the Subsidiaries
(as defined below) of the Borrower listed on the signature pages hereof, each,
a debtor and debtor in possession under chapter 11 of the Bankruptcy Code, as
Subsidiary Guarantors (the "Subsidiary Guarantors"), the Lenders (as defined
below), the Issuers (as defined below) and CITICORP USA, INC. ("Citicorp"), as
administrative agent for the Lenders and the Issuers (in such capacity, the
"Administrative Agent"), amends and restates in its entirety the Original DIP
Credit Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, on January 14, 2005 (the "Petition Date"), the
Borrower and the Subsidiary Guarantors each filed a voluntary petition for
relief (collectively, the "Cases") under chapter 11 of the Bankruptcy Code
with the United States Bankruptcy Court for the Southern District of Georgia
(the "Bankruptcy Court"); and
WHEREAS, the Borrower and the Subsidiary Guarantors are
continuing to operate their respective businesses and manage their respective
properties as debtors in possession under sections 1107 and 1108 of the
Bankruptcy Code; and
WHEREAS, the Borrower, the Subsidiary Guarantors, the
Lenders and Issuers party thereto and the Administrative Agent are parties to
the Secured Super-Priority Debtor In Possession Revolving Credit Agreement,
dated as of January 31, 2005, as amended by Amendment No. 1 dated as of
February 25, 2005 (as the same may be further amended, modified, or
supplemented prior to the date hereof, the "Original DIP Credit Agreement"),
pursuant to which the Lenders and the Issuers provided a secured super
priority revolving credit and letter of credit facility of up to $125,000,000
in order to fund the continued operation of the Borrower's and the Subsidiary
Guarantors' businesses as debtors and debtors in possession under the
Bankruptcy Code; and
WHEREAS, the Borrower has requested an amendment and
restatement of the Original DIP Credit Agreement to, among other things,
establish a term loan facility in an aggregate principal face amount of up to
$25,500,000, with a corresponding permanent reduction of the Revolving Credit
Commitments by such amount; and
WHEREAS, the Lenders, the Issuers and the Administrative
Agent are willing to amend and restate the Original DIP Credit Agreement upon
the terms and subject to the conditions set forth herein; and
WHEREAS, (a) this Agreement, on the terms and subject to the
conditions set forth herein, shall amend and restate the Original DIP Credit
Agreement in its entirety as of the Effective Date, (b) this Agreement shall
not constitute a novation of the security interests, obligations and
liabilities existing under the Original DIP Credit Agreement or evidence
payment of all or any of such obligations and liabilities and (c) from and
after the Effective Date, the Original DIP Credit Agreement shall be of no
further force or effect, except to evidence the Obligations (as defined
therein) incurred, the representations and warranties made and the actions or
omissions performed or required to be performed thereunder prior to the
Effective Date;
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS
SECTION 1.1. DEFINED TERMS. As used in this Agreement, the
following terms have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Account" has the meaning given to such term in the UCC.
"Account Debtor" has the meaning given to such term in the
UCC.
"Additional Pledged Collateral" means all shares of, limited
and/or general partnership interests in, and limited liability company
interests in, and all securities convertible into, and warrants, options and
other rights to purchase or otherwise acquire, stock of, either (i) any Person
that, after the date of this Agreement, as a result of any occurrence, becomes
a direct Subsidiary of any Loan Party or (ii) any issuer of Pledged Stock, any
Partnership or any LLC that are acquired by any Loan Party after the date
hereof; all certificates or other instruments representing any of the
foregoing; all Security Entitlements of any Loan Party in respect of any of
the foregoing; all additional indebtedness from time to time owed to any Loan
Party by any obligor on the Pledged Notes and the instruments evidencing such
indebtedness; and all interest, cash, instruments and other property or
Proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the foregoing. Additional Pledged
Collateral may be General Intangibles or Investment Property.
"Affected Lender" has the meaning specified in Section 2.17
(Substitution of Lenders).
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling or that is controlled by or is under
common control with such Person, each officer, director, general partner or
joint-venturer of such Person, and each Person that is the beneficial owner of
10% or more of any class of Voting Stock of such Person. For the purposes of
this definition, "control" means the possession of the power to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
"Agent Affiliate" has the meaning specified in Section
12.3(c) (Posting of Approved Electronic Communications).
"Agreement" means this Amended and Restated Secured Super
Priority Debtor In Possession Credit Agreement.
"Amended and Restated DIP Order" means an order of the
Bankruptcy Court pursuant to section 364 of the Bankruptcy Code, approving
this Agreement and the other Loan Documents and authorizing the incurrence by
the Loan Parties of permanent post-petition secured and super-priority
Indebtedness in accordance with this Agreement, and as to which no stay has
been entered and which has not been reversed, modified, vacated or overturned,
and which is in form and substance satisfactory to the Administrative Agent in
its sole discretion, and the Requisite Revolving Credit Lenders and Requisite
Term Loan Lenders.
"Applicable Lending Office" means, with respect to each
Lender, its Domestic Lending Office in the case of a Base Rate Loan, and its
Eurodollar Lending Office in the case of a Eurodollar Rate Loan.
"Applicable Margin" means, with respect to (a) Revolving
Loans and Swing Loans maintained as (i) Base Rate Loans, a rate equal to 1.50%
per annum and (ii) Eurodollar Rate Loans, a rate equal to 2.50% per annum and
(b) Term Loans maintained as (i) Base Rate Loans, a rate equal to 6.50% per
annum and (ii) Eurodollar Rate Loans, a rate equal to 7.50% per annum.
"Applicable Term Loan Repayment Fee" means, without
duplication, (i) with respect to any prepayment or repayment of the Term Loans
pursuant to Section 2.9(b) with respect to any Core 363 Sale, an amount that
results in the Term Loan Lenders receiving, a cash fee equal to the difference
between (a) the value of the New Common Equity (based on the POR Value of
Equity) that the Term Loan Lenders would have received in a conversion of the
original principal amount of the Term Loans pursuant to Section 2.19 herein
and Section I(B)(b)(ii) of Schedule 2.19, if a Plan of Reorganization that is
not a ▇▇▇▇▇▇▇ Sponsored Plan had been confirmed having a POR Value of Equity
consistent with the equity valuation implied by such Core 363 Sale and (b) the
original principal amount of the Term Loan; and (ii) in the case of any
repayment of the Term Loans in cash pursuant to Sections 2.6(b), 2.19 or 9.2,
or, subject to Section 2.19, any other repayment in full of the Term Loans in
cash, a fee equal to 3% of the Term Loan Termination Amount, provided,
however, that such percentage shall increase by an additional 1% of the Term
Loan Termination Amount on the first Business Day of each calendar month,
beginning August 1, 2005, until the date of payment, in which a ▇▇▇▇▇▇▇
Sponsored Plan has not been filed by the Borrower with the Bankruptcy Court.
"Applicable Unused Commitment Fee Rate" means 0.375% per
annum.
"Approved Deposit Account" means a Deposit Account that is
the subject of an effective Deposit Account Control Agreement and that is
maintained by any Loan Party with a Deposit Account Bank. "Approved Deposit
Account" includes all monies on deposit in any such Deposit Account and all
certificates and instruments, if any, representing or evidencing such Deposit
Account.
"Approved Electronic Communications" means each notice,
demand, communication, information, document and other material that any Loan
Party is obligated to, or otherwise chooses to, provide to the Administrative
Agent pursuant to any Loan Document or the transactions contemplated therein,
including (a) any joinder to this Agreement and any other written Contractual
Obligation delivered or required to be delivered in respect of any Loan
Document or the transactions contemplated therein and (b) any Financial
Statement, financial and other report, notice, request, certificate and other
information material; provided, however, that, "Approved Electronic
Communication" shall exclude (x) any Notice of Borrowing, Letter of Credit
Request, Swing Loan Request, Notice of Conversion or Continuation, and any
other notice, demand, communication, information, document and other material
relating to a request for a new, or a conversion of an existing, Borrowing,
(ii) any notice pursuant to Section 2.8 (Optional Prepayments) and Section 2.9
(Mandatory Prepayments) and any other notice relating to the payment of any
principal or other amount due under any Loan Document prior to the scheduled
date therefor, (iii) all notices of any Default or Event of Default and (iv)
any notice, demand, communication, information, document and other material
required to be delivered to satisfy any of the conditions set forth in Article
III (Conditions To Loans And Letters Of Credit) or Section 2.4(a) (Letters of
Credit) or any other condition to any Borrowing or other extension of credit
hereunder or any condition precedent to the effectiveness of this Agreement.
"Approved Electronic Platform" has the meaning specified in
Section 12.3(a) (Posting of Approved Electronic Communications).
"Approved Fund" means any Fund that is advised or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or Affiliate of an
entity that administers or manages a Lender.
"Approved Securities Intermediary" means a Securities
Intermediary or Commodity Intermediary selected or approved by the
Administrative Agent.
"Arranger" means Citigroup Global Markets Inc., in its
capacity as sole lead arranger and sole book runner.
"Asset Sale" has the meaning specified in Section 8.4 (Sale
of Assets).
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an Eligible Assignee, and accepted by
the Administrative Agent, in substantially the form of Exhibit A (Form of
Assignment and Acceptance).
"Availability Reserve" means, at any time the sum of: (a)
the Carve-Out, (b) the amount of all adequate protection payments which are
then due or will become due within the next fiscal month, (c) as of three
Business Days after the date of written notice of any determination thereof to
the Borrower by the Administrative Agent, such amounts as the Administrative
Agent may from time to time establish against the Revolving Credit Facility
(to the extent not reflected in the calculation of the Borrowing Base), in the
Administrative Agent's sole discretion exercised reasonably and in accordance
with customary business practices for its comparable asset based transactions,
in order either (i) to reserve for the payment of items necessary or desirable
to preserve the value of the Collateral or the Administrative Agent's Lien
thereon or (ii) to provide for the payment of unanticipated liabilities of any
of the Loan Parties arising after the Initial Closing Date and (d) prior to
the delivery of an Availability Reserve Certificate from a Responsible Officer
of the Borrower to the Administrative Agent certifying that the Loan Parties
have received commitments from a vendor group that are sufficiently large
enough and on terms adequate to supply the Loan Parties' business plan
requirements through the 2005 holiday season, $12,500,000.
"Availability Reserve Certificate" means a certificate in
the form of Exhibit O (Form of Availability Reserve Certificate).
"Available Credit" means, at any time, (a) the lesser of (i)
the then effective Revolving Credit Commitments and (ii) the Borrowing Base at
such time, minus (b) the sum of (i) the aggregate Revolving Credit
Outstandings at such time and (ii) the Availability Reserve in effect at such
time.
"Avoidance Action" means all actions for preferences,
fraudulent conveyances, and other avoidance power claims and any recoveries
under clause (b) of Section 552, clause (c) of Section 506 and Sections 542,
544, 545, 547, 548, 549, 550 and 553 of the Bankruptcy Code, and all monies
and other property of any kind received therefrom.
"Bailee's Letter" means a letter in form and substance
reasonably acceptable to the Administrative Agent and executed by any Person
(other than a Loan Party) that is in possession of Inventory on behalf of a
Loan Party pursuant to which such Person acknowledges, among other things, the
Administrative Agent's Lien with respect thereto.
"Bankruptcy Code" means title 11, United States Code.
"Bankruptcy Court" is defined in the recitals to this
Agreement or shall mean any other court having competent jurisdiction over the
Cases.
"Base Rate" means, for any period, a fluctuating interest
rate per annum as shall be in effect from time to time, which rate per annum
shall be equal at all times to the highest of the following:
(a) the rate of interest announced publicly by Citibank in
New York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 0.25% or, if there is
no nearest 0.25%, to the next higher 0.25%) of (i) 0.5% per annum,
(ii) the rate per annum obtained by dividing (A) the latest
three-week moving average of secondary market morning offering rates
in the United States for three-month certificates of deposit of major
United States money market banks, such three-week moving average
being determined weekly on each Monday (or, if any such day is not a
Business Day, on the next succeeding Business Day) for the three-week
period ending on the previous Friday by Citibank on the basis of such
rates reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates
received by Citibank from three New York certificate of deposit
dealers of recognized standing selected by Citibank, by (B) a
percentage equal to 100% minus the average of the daily percentages
specified during such three-week period by the Federal Reserve Board
for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) for
Citibank in respect of liabilities consisting of or including (among
other liabilities) three-month U.S. dollar nonpersonal time deposits
in the United States, and (iii) the average during such three-week
period of the maximum annual assessment rates estimated by Citibank
for determining the then current annual assessment payable by
Citibank to the Federal Deposit Insurance Corporation (or any
successor) for insuring Dollar deposits in the United States; and
(c) 0.5% per annum plus the Federal Funds Rate.
"Base Rate Loan" means any Swing Loan or any other Loan
during any period in which it bears interest based on the Base Rate.
"Blockage Notice" has the meaning specified in each Deposit
Account Control Agreement.
"Borrower" has the meaning specified in the preamble to this
Agreement.
"Borrowing" means a Revolving Credit Borrowing or a Term
Loan Borrowing.
"Borrowing Base" means, at any time, subject to any
Eligibility Reserve then in effect, the sum of (a) the lesser of (i) 42.5% of
the Net Balance of the Loan Parties' Eligible Installment Contracts (provided
that the Administrative Agent may in its sole discretion (exercised reasonably
and in accordance with customary business practices for its comparable asset
based transactions) from time to time change such advance rate to a percentage
not in excess of 42.5%, and each such change shall become effective three
Business Days after written notice of such change from the Administrative
Agent to the Borrower); and (ii) 85.0% of the Net Orderly Liquidation Value of
the Loan Parties' Installment Contracts, and (b) 85.0% of the Net Orderly
Liquidation Value of the Loan Parties' Eligible Inventory, as adjusted monthly
in accordance with the most recent written appraisal of such Inventory
delivered to the Administrative Agent pursuant to Section 6.11(b), minus any
Borrowing Base Reserve in effect as such time.
"Borrowing Base Certificate" means a certificate of the
Borrower substantially in the form of Exhibit F (Form of Borrowing Base
Certificate).
"Borrowing Base Reserve" means, at any time, as of three
Business Days after the date of written notice of any determination thereof to
the Borrower by the Administrative Agent, such amounts as the Administrative
Agent may from time to time establish against the Borrowing Base, in the
Administrative Agent's sole discretion exercised reasonably and in accordance
with customary business practices for its comparable asset based transactions,
in order to address an impairment of the value of the Collateral in the
Borrowing Base or an impairment of the Administrative Agent's Lien thereon,
including in any event the following: (a) a reserve for the consignment of
goods purchased but not paid for unless the consignor thereof has agreed in
writing in form and substance satisfactory to the Administrative Agent that
such goods will be treated as owned by the applicable Loan Party and that such
goods and the proceeds thereof are not subject to any Lien in favor of such
consignor or claim of ownership by such consignor, (b) a reserve for the Loan
Parties' gift certificate and layaway programs and (c) a reserve for any sales
tax liability.
"Business Day" means a day of the year on which banks are
not required or authorized to close in New York City and, if the applicable
Business Day relates to notices, determinations, fundings and payments in
connection with the Eurodollar Rate or any Eurodollar Rate Loans, a day on
which dealings in Dollar deposits are also carried on in the London interbank
market.
"Capital Expenditures" means, for any Person for any period,
the aggregate of amounts that would be reflected as additions to property,
plant or equipment on a Consolidated balance sheet of such Person and its
Subsidiaries, excluding interest capitalized during construction.
"Capital Lease" means, with respect to any Person, any lease
of, or other arrangement conveying the right to use, property by such Person
as lessee that would be accounted for as a capital lease on a balance sheet of
such Person prepared in conformity with GAAP.
"Capital Lease Obligations" means, with respect to any
Person, the capitalized amount of all Consolidated obligations of such Person
or any of its Subsidiaries under Capital Leases.
"Carve-Out" means claims of the following parties for the
following amounts: (i) the unpaid fees of the U.S. Trustee or the Clerk of the
Bankruptcy Court pursuant to 28 U.S.C. ss. 1930(a) and (ii) the aggregate
allowed unpaid fees and expenses payable under sections 330 and 331 of the
Bankruptcy Code to professional persons retained pursuant to an order of the
Bankruptcy Court by the Borrower, any Subsidiary Guarantor or any Committee
not to exceed $3,000,000 in the aggregate; provided, however, that the
Carve-Out shall not include, apply to or be available for any fees or expenses
incurred by any party, including the Borrower, any Subsidiary Guarantor or any
Committee, in connection with the investigation (including discovery
proceedings), initiation or prosecution of any claims, causes of action,
adversary proceedings or other litigation against the Administrative Agent,
the Lenders or the Issuers in their respective capacities as such, including
challenging the amount, validity, perfection, priority or enforceability of or
asserting any defense, counterclaim or offset to, the obligations under the
Facilities or the security interests and Liens of the Administrative Agent in
respect thereof; and provided further, however, that (a) as long as no Event
of Default shall have occurred and be continuing, the Borrower and each
Subsidiary Guarantor shall be permitted to pay compensation and reimbursement
of expenses allowed and payable under sections 330 and 331 of the Bankruptcy
Code, as the same may be due and payable, and (b) professionals shall be able
to apply retainers received by them prior to the Petition Date to their fees
and expenses which are due and payable, and in each case, the same shall not
reduce the Carve-Out.
"Cash Collateral Account" means the Cash Concentration
Account and any other Deposit Account or Securities Account that is (a)
established by the Administrative Agent from time to time in its sole
discretion to receive cash and Cash Equivalents (or purchase cash or Cash
Equivalents with funds received) from the Loan Parties or their Subsidiaries
or Affiliates or Persons acting on their behalf pursuant to the Loan
Documents, (b) with such depositaries and securities intermediaries as the
Administrative Agent may determine in its sole discretion, (c) in the name of
the Administrative Agent (although such account may also have words referring
to the Borrower and the account's purpose), (d) under the sole dominion and
control of the Administrative Agent and (e) in the case of a Securities
Account, with respect to which the Administrative Agent shall be the
Entitlement Holder and the only Person authorized to give Entitlement Orders
with respect thereto.
"Cash Concentration Account" means the deposit account no.
3059-0515 (or such other deposit account as may be notified by the
Administrative Agent to the Borrower) at Citibank, designated as "CUSA F/A/▇
▇▇▇▇▇▇▇▇'▇ INC. CONCENTRATION A/C", which account shall be under the sole
dominion and control of the Administrative Agent.
"Cash Equivalents" means (a) securities issued or fully
guaranteed or insured by the United States federal government or any agency
thereof, (b) certificates of deposit, eurodollar time deposits, overnight bank
deposits and bankers' acceptances of any commercial bank organized under the
laws of the United States, any state thereof, the District of Columbia, any
foreign bank, or its branches or agencies (fully protected against currency
fluctuations) that, at the time of acquisition, are rated at least "A-1" by
S&P or "P-1" by ▇▇▇▇▇'▇, (c) commercial paper of an issuer rated at least
"A-1" by S&P or "P-1" by ▇▇▇▇▇'▇ and (d) shares of any money market fund that
(i) has at least 95% of its assets invested continuously in the types of
investments referred to in clauses (a), (b) and (c) above, (ii) has net assets
whose Dollar Equivalent exceeds $500,000,000 and (iii) is rated at least "A-1"
by S&P or "P-1" by ▇▇▇▇▇'▇; provided, however, that the maturities of all
obligations of the type specified in clauses (a), (b) and (c) above shall not
exceed 180 days.
"Cash Management Document" means any certificate, agreement
or other document executed by any Loan Party in respect of the Cash Management
Obligations of any Loan Party.
"Cash Management Obligation" means, as applied to any
Person, any direct or indirect liability, contingent or otherwise, of such
Person in respect of cash management services (including treasury, depository,
overdraft, credit or debit card, electronic funds transfer and other cash
management arrangements) provided after the Initial Closing Date (regardless
of whether these or similar services were provided prior to the Initial
Closing Date by the Administrative Agent, any Lender or any Affiliate of any
of them) by the Administrative Agent, any Lender or any Affiliate of any of
them, including obligations for the payment of fees, interest, charges,
expenses, attorneys' fees and disbursements in connection therewith.
"Change of Control" means the occurrence of any of the
following: (a) any person or group of persons (within the meaning of the
Securities Exchange Act of 1934, as amended) (other than ▇▇▇▇▇▇ Ean ▇▇▇▇▇ or
any of his Affiliates) shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended) of Voting Stock of the Borrower
in an amount sufficient to elect a majority of the Borrower's board of
directors or (b) during any period of twelve consecutive calendar months
occurring after the date hereof, individuals who, at the beginning of such
period, constituted the board of directors of the Borrower (together with any
new directors whose election by the board of directors of the Borrower or
whose nomination for election by the stockholders of the Borrower was approved
by a vote of at least two-thirds of the directors then still in office who
either were directors at the beginning of such period or whose elections or
nomination for election was previously so approved) cease for any reason other
than death or disability to constitute a majority of the directors then in
office.
"Chattel Paper" has the meaning given to such term in the
UCC.
"Chief Executive Office" means the Borrower's headquarters
located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
"Citibank" means Citibank, N.A., a national banking
association.
"Citicorp" has the meaning specified in the preamble to this
Agreement.
"Claim" has the meaning given to such term in Section 101(5)
of the Bankruptcy Code.
"Code" means the Internal Revenue Code of 1986.
"Collateral" has the meaning specified in Section 11.1.
"Collateral Documents" means this Agreement, any Deposit
Account Control Agreement, any Securities Account Control Agreement and any
other document executed and delivered by a Loan Party granting a Lien on any
of its property to secure payment of the Secured Obligations.
"Commercial Tort Claim" has the meaning given to such term
in the UCC.
"Committee" means the official statutory committee of
unsecured creditors approved in the Cases pursuant to section 1102 of the
Bankruptcy Code.
"Commitment" means, with respect to any Lender, such
Lender's Revolving Credit Commitment, if any, and such Lender's Term Loan
Commitment, if any, and "Commitments" means the aggregate Revolving Credit
Commitments and Term Loan Commitments of all Lenders.
"Commodity Account" has the meaning given to such term in
the UCC.
"Commodity Intermediary" has the meaning given to such term
in the UCC.
"Compliance Certificate" has the meaning specified in
Section 6.1(c) (Financial Statements).
"Consent Order" means an order of the Bankruptcy Court
approving the affirmative consent of the Borrower to the existing
participation agreements entered into between ▇▇▇▇▇▇▇ and certain vendors of
the Borrower and the transactions contemplated by such participation
agreements including the assignment of such vendors' claims to ▇▇▇▇▇▇▇ upon
the effective date of a Plan of Reorganization, and providing that such
consent of the Borrower will become effective as to any vendor upon (i) the
occurrence of the effective date of a Plan of Reorganization and (ii) such
vendor having complied (unless waived by the Borrower in its sole discretion),
as determined in the sole discretion of the Borrower (such discretion being
subject, in certain circumstances, to arbitration by ▇▇▇▇▇▇▇), with the terms
and conditions of the vendor program attached to the motion to the Bankruptcy
Court requesting approval of such consent and entry of such order, and as to
which no stay has been entered and which has not been reversed, modified,
vacated or overturned, and which is in form and substance satisfactory to
▇▇▇▇▇▇▇ in its sole discretion.
"Consolidated" means, with respect to any Person, the
consolidation of accounts of such Person and its Subsidiaries in accordance
with GAAP, provided that in no event shall Crescent Jewelers, Inc. or any of
its Subsidiaries be considered a Subsidiary of the Borrower for purposes of
this definition (whether or not GAAP would require otherwise) unless the
Borrower acquires more than 50% of the Voting Stock of such Person.
"Consolidated Net Income" means, for any Person for any
period, the Consolidated net income (or loss) of such Person for such period;
provided, however, that (a) the net income of any other Person in which such
Person or one of its Subsidiaries has a joint interest with a third party
(which interest does not cause the net income of such other Person to be
Consolidated into the net income of such Person) shall be included only to the
extent of the amount of dividends or distributions paid to such Person or
Subsidiary, (b) the net income of any Subsidiary of such Person that is
subject to any restriction or limitation on the payment of dividends or the
making of other distributions shall be excluded to the extent of such
restriction or limitation, and (c) extraordinary gains and losses and any
one-time increase or decrease to net income that is required to be recorded
because of the adoption of new accounting policies, practices or standards
required by GAAP shall be excluded.
"Constituent Documents" means, with respect to any Person,
(a) the articles of incorporation, certificate of incorporation, constitution
or certificate of formation (or the equivalent organizational documents) of
such Person, (b) the by-laws or operating agreement (or the equivalent
governing documents) of such Person and (c) any document setting forth the
manner of election and duties of the directors or managing members of such
Person (if any) and the designation, amount or relative rights, limitations
and preferences of any class or series of such Person's Stock.
"Contaminant" means any material, substance or waste that is
classified, regulated or otherwise characterized under any Environmental Law
as hazardous, toxic, a contaminant or a pollutant or by other words of similar
meaning or regulatory effect, including any petroleum or petroleum-derived
substance or waste, asbestos and polychlorinated biphenyls.
"Contracts" has the meaning given to such term in the UCC.
"Contractual Obligation" of any Person means any obligation,
agreement, undertaking or similar provision of any Security issued by such
Person or of any agreement, undertaking, contract, lease, indenture, mortgage,
deed of trust or other instrument (excluding a Loan Document) to which such
Person is a party or by which it or any of its property is bound or to which
any of its property is subject.
"Control Account" means a Securities Account or Commodity
Account that is the subject of an effective Securities Account Control
Agreement and that is maintained by any Loan Party with an Approved Securities
Intermediary. "Control Account" includes all Financial Assets held in any such
Securities Account or a Commodity Account and all certificates and
instruments, if any, representing or evidencing the Financial Assets contained
therein.
"Core 363 Sale" shall mean any 363 Sale or 363 Sales of all
or substantially all of the assets of the Loan Parties and their Subsidiaries,
in a single transaction or a series of related transactions, on a going
concern basis to any Person or Persons acting in concert other than to ▇▇▇▇▇▇▇
or its Affiliates.
"Corporate Chart" means a corporate organizational chart,
list or other similar document in each case in form reasonably acceptable to
the Administrative Agent and setting forth, for each Person that is a Loan
Party, that is subject to Section 7.11 (Additional Collateral and Guaranties)
or that is a Subsidiary of any of them, (a) the full legal name of such Person
(and any trade name, fictitious name or other name such Person may have had or
operated under), (b) the jurisdiction of organization, the organizational
number (if any) and the tax identification number (if any) of such Person, (c)
the location of such Person's chief executive office (or sole place of
business) and (d) the number of shares of each class of such Person's Stock
authorized (if applicable), the number outstanding as of the date of delivery
and the number and percentage of such outstanding shares for each such class
owned (directly or indirectly) by any Loan Party or any Subsidiary of any of
them.
"Copyrights" means (a) all copyrights arising under the laws
of the United States, any other country or any political subdivision thereof,
whether registered or unregistered and whether published or unpublished, all
registrations and recordings thereof, and all applications in connection
therewith, including all registrations, recordings and applications in the
United States Copyright Office or in any foreign counterparts thereof and (b)
the right to obtain all renewals thereof.
"Copyright Licenses" means any written agreement naming any
Loan Party as licensor or licensee granting any right under any Copyright,
including the grant of rights to copy, publicly perform, create derivative
works, manufacture, distribute, exploit and sell materials derived from any
Copyright.
"Crescent Party" has the meaning specified in Schedule 1.1.
"Customary Permitted Liens" means, with respect to any
Person, any of the following Liens:
(a) Liens with respect to the payment of taxes, assessments
or governmental charges in each case that are not yet due or that are
being contested in good faith by appropriate proceedings and with
respect to which adequate reserves or other appropriate provisions
are being maintained to the extent required by GAAP;
(b) deposits made (i) in the ordinary course of business in
connection with workers' compensation, unemployment insurance or
other types of social security benefits or (ii) to secure the
performance of bids, tenders, sales, contracts (other than for the
repayment of borrowed money), utilities, leases, and surety, appeal,
customs or performance bonds and other similar obligations incurred
in the ordinary course of business;
(c) encumbrances arising by reason of zoning restrictions,
easements, licenses, reservations, covenants, rights-of-way, utility
easements, building restrictions and other similar encumbrances on
the use of real property not materially detracting from the value of
such real property or not materially interfering with the ordinary
conduct of the business conducted and proposed to be conducted at
such real property;
(d) encumbrances arising under licenses or sub-licenses of
Intellectual Property in the ordinary course of business to the
extent such licenses or sub-licenses are permitted by Section 8.4(d);
(e) encumbrances arising under leases or subleases of real
property that do not, in the aggregate, materially detract from the
value of such real property or interfere with the ordinary conduct of
the business conducted and proposed to be conducted at such real
property; and
(f) a lessor's or consignor's rights in and to personal
property leased or consigned to such Person in the ordinary course of
such Person's business other than through a Capital Lease, including
financing statements filed with respect thereto.
"Debt Issuance" means the incurrence of any Indebtedness by
the Borrower or any of its Subsidiaries (excluding any Indebtedness incurred
in accordance with Section 8.1).
"Default" means any event that with the passing of time or the giving
of notice or both, would become an Event of Default.
"Deposit Account" has the meaning given to such term in the
UCC.
"Deposit Account Bank" means a financial institution
selected or approved by the Administrative Agent, such approval not to be
unreasonably withheld.
"Deposit Account Control Agreement" means a letter
agreement, substantially in the form of Exhibit K (Form of Deposit Account
Control Agreement) (with such changes as may be agreed to by the
Administrative Agent), executed by the applicable Loan Party, the
Administrative Agent and the relevant financial institution, or otherwise in
form and substance satisfactory to the Administrative Agent.
"Discharge of Revolving Credit Obligations" shall mean (i)
the payment in full in cash (or other consideration acceptable to the
Administration Agent and each Revolving Credit Lender in their sole
discretion) of all Revolving Credit Obligations and all Obligations then owed
to the Administrative Agent (other than, in each case, (a) contingent
indemnification obligations not then due and payable and (b) to the extent
covered by clause (ii) below, Letter of Credit Obligations with respect to
undrawn Letters of Credit), (ii) the termination of all Letters of Credit or
the delivery to the Administrative Agent of cash collateral in an amount equal
to 105% of the Letter of Credit Obligations for all outstanding Letters of
Credit in the manner set forth in Section 9.3 and (iii) the termination of all
Revolving Credit Commitments.
"Document" has the meaning given to such term in the UCC.
"Documentary Letter of Credit" means any Letter of Credit
that is drawable upon presentation of documents evidencing the sale or
shipment of goods purchased by the Borrower or any of its Subsidiaries in the
ordinary course of its business.
"Dollar Equivalent" of any amount means, at the time of
determination thereof, (a) if such amount is expressed in Dollars, such
amount, (b) if such amount is expressed in any lawful currency other than
Dollars that is freely transferable into Dollars, the equivalent of such
amount in Dollars determined by using the rate of exchange quoted by Citibank
in New York, New York at 11:00 a.m. (New York time) on the date of
determination (or, if such date is not a Business Day, the last Business Day
prior thereto) to prime banks in New York for the spot purchase in the New
York foreign exchange market of such amount of Dollars with such currency and
(c) if such amount is denominated in any other currency, the equivalent of
such amount in Dollars as determined by the Administrative Agent using any
method of determination it deems appropriate.
"Dollars" and the sign "$" each mean the lawful money of the
United States of America.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule II (Applicable Lending Offices and Addresses for Notices)
or on the Assignment and Acceptance by which it became a Lender or such other
office of such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"Domestic Person" means any "United States person" under and
as defined in Section 7701(a)(30) of the Code.
"Domestic Subsidiary" means any Subsidiary of the Borrower
organized under the laws of any state of the United States of America or the
District of Columbia.
"EBITDAR" means, with respect to any Person for any period,
(a) Consolidated Net Income of such Person for such period plus (b) the sum
of, in each case to the extent included in the calculation of such
Consolidated Net Income but without duplication, (i) any provision for income
taxes, (ii) interest expense, (iii) loss from extraordinary items, (iv)
depreciation, depletion and amortization expenses, (v) restructuring charges
(including, without limitation, professional fees and disbursements) incurred
in connection with the Cases, (vi) charges (including, without limitation,
professional fees and disbursements) in connection with (A) any investigation
or litigation commenced prior to the Petition Date, (B) any restatement of the
Borrower's Consolidated financial statements for any period ending prior to
the date hereof, (C) any restructuring of the credit department of the Loan
Parties or (D) any store closure program pursuant to Permitted Transactions,
(vii) other charges constituting restructuring charges under GAAP, (viii)
losses arising from the sale of any capital asset, (ix) losses arising from
any write-down in the book value of any asset, (x) non-cash charges incurred
in connection with or as part of any restatement of the Borrower's
Consolidated financial statements for any period ending prior to the date
hereof and (xi) all other non-cash charges and non-cash losses for such
period, including the amount of any compensation deduction as the result of
any grant of Stock or Stock Equivalents to employees, officers, directors or
consultants minus (c) the sum of, in each case to the extent included in the
calculation of such Consolidated Net Income but without duplication, (i) any
credit for income tax, (ii) interest income, (iii) gains from extraordinary
items for such period, (iv) any aggregate net gain (but not any aggregate net
loss) from the sale, exchange or other disposition of capital assets by such
Person and (v) any other non-cash gains or other items which have been added
in determining Consolidated Net Income, including any reversal of a charge
referred to in clause (b)(v) above by reason of a decrease in the value of any
Stock or Stock Equivalent.
"Effective Date" has the meaning set forth in Section 3.1
hereto.
"Eligibility Reserves" means, effective as of three Business
Days after the date of written notice of any determination thereof to the
Borrower by the Administrative Agent, such amounts as the Administrative
Agent, in its sole discretion exercised reasonably and in accordance with
customary business practices for its comparable asset based transactions, may
from time to time establish against the gross amounts of Eligible Installment
Contracts and Eligible Inventory, to reflect risks or contingencies arising
after the Initial Closing Date which may affect any one or class of such items
and which have not already been taken into account in the calculation of the
Borrowing Base.
"Eligible Assignee" means (a) a Lender or an Affiliate or
Approved Fund of any Lender; (b) a commercial bank having total assets whose
Dollar Equivalent exceeds $5,000,000,000; (c) a finance company, insurance
company or any other financial institution or Fund, in each case reasonably
acceptable to the Administrative Agent and regularly engaged in making,
purchasing or investing in loans, and having a net worth, determined in
accordance with GAAP, whose Dollar Equivalent exceeds $250,000,000 (or, to the
extent net worth is less than such amount, a finance company, insurance
company, other financial institution or Fund, reasonably acceptable to the
Administrative Agent and the Borrower); or (d) a savings and loan association
or savings bank organized under the laws of the United States or any State
thereof having a net worth, determined in accordance with GAAP, whose Dollar
Equivalent exceeds $250,000,000.
"Eligible Installment Contracts" means, for each Loan Party
as of any date of determination and without duplication, those Installment
Contracts that constitute Collateral; provided, however, that an Installment
Contract shall not be an Eligible Installment Contract if any of the following
shall be true:
(a) any Installment Contract which is (i) not subject to a
perfected, first priority (subject only to the Carve-Out) Lien in
favor of the Administrative Agent to secure the Secured Obligations,
(ii) subject to any other Lien other than Liens securing Prepetition
Secured Indebtedness; provided, however, that, with respect to clause
(ii) only, all such Liens shall be on terms acceptable to the
Administrative Agent, including with respect to the subordination of
all such Liens to the Liens of the Administrative Agent, or (iii)
evidences a transaction not in compliance with any Requirement of
Law;
(b) any Installment Contract for which payment thereunder is
doubtful or is determined to be uncollectible (including, without
limitation, any Installment Contract under which any payment is more
than thirty (30) days (or, at the sole discretion of the
Administrative Agent exercised reasonably and in accordance with
customary business practices for its comparable asset based
transactions, sixty (60) days) past due on a "contractual" basis);
(c) any Installment Contract which is modified or rewritten
in any respect materially adverse to such Loan Party or that impairs
the value thereof;
(d) any Installment Contract with a term of more than
twenty-four (24) months;
(e) any Installment Contract for which the obligations of
the debtor thereunder are evidenced by a note, Chattel Paper, or
other Instrument, unless the covenants set forth in this Agreement
applicable to such note, Chattel Paper or Instrument have been
complied with;
(f) any Installment Contract for which the debtor thereunder
is not solvent or is subject to any bankruptcy or insolvency
proceeding of any kind or which has died or been declared judicially
incompetent;
(g) any Installment Contract for which the debtor thereunder
is located outside of the United States (unless payment for the goods
shipped is secured by an irrevocable letter of credit in form and
substance and from an institution acceptable to the Administrative
Agent and with respect to which the letter-of-credit rights (as
defined in the UCC) have been assigned to the Administrative Agent
pursuant to documents in form and substance acceptable to the
Administrative Agent);
(h) any Installment Contract which is contingent or which is
subject to offset, discount, or deduction (in each case to the extent
of such offset, discount, or deduction) or which is subject to any
counterclaim, dispute, or other defense to payment (in each case to
the extent of such counterclaim, dispute or other defense);
(i) any Installment Contract under which any Subsidiary,
employee, or Affiliate of a Loan Party is the debtor;
(j) any Installment Contract representing a sale to the
government of the United States or any subdivision thereof unless the
Federal Assignment of Claims Act (or other similar Requirement of
Law) has been complied with to the satisfaction of the Administrative
Agent with respect to such Installment Contract;
(k) any Installment Contract with respect to which any of
the representations, warranties, covenants, and agreements contained
in the Loan Documents are not or have ceased to be complete and
correct or have been breached;
(l) any Installment Contract which represents a sale on a
▇▇▇▇-and-hold, guaranteed sale, sale and return, sale on approval,
consignment, or other repurchase or return basis;
(m) any Installment Contract arising from a transaction
which does not conform to the credit criteria of a Loan Party in
effect at the time such Installment Contract is entered into;
(n) any Installment Contract owing from a debtor the
Administrative Agent reasonably determines is not creditworthy;
(o) any Installment Contract under which the initial payment
is more than forty-five (45) days from the original date of sale;
(p) any Installment Contract under which the merchandise
purchased by the debtor has been repossessed or a Loan Party has
demanded return of such merchandise;
(q) any Installment Contract arising in a transaction in
which the goods covered thereby have not been delivered;
(r) any Installment Contract which has payment terms which
are not fully amortizing within twenty-four (24) months after the
date of sale with respect thereto;
(s) the portion of any Installment Contracts constituting
unearned finance charges, unearned credit insurance premiums and
unearned warranty premiums;
(t) the portion of any Installment Contracts constituting
late fees;
(u) Installment Contracts originated at retail stores that
have been subsequently closed, unless (i) the applicable customer is
current on scheduled payments thereunder or (ii) the payments with
respect thereto have been transferred to another retail store
operated by a Loan Party; and
(v) any Installment Contract which fails to meet such other
specifications and requirements as may from time to time be
established by the Administrative Agent, on three Business Days'
prior written notice thereof to the Borrower, in its sole discretion
exercised reasonably and in accordance with customary business
practices for its comparable asset based transactions.
"Eligible Inventory" means, for each Loan Party as of any
date of determination and without duplication, the lower of the aggregate book
value (based on a FIFO or a moving average cost valuation, consistently
applied) or fair market value of finished goods Inventory owned by such Loan
Party, less reserves against Inventory shrinkage as are reasonably
satisfactory to the Administrative Agent and other appropriate reserves
determined in accordance with GAAP. Without limiting the foregoing, Eligible
Inventory excludes in any event:
(a) Inventory which is (i) not subject to a perfected, first
priority (subject only to the Carve-Out) Lien in favor of the
Administrative Agent to secure the Secured Obligations or (ii)
subject to any other Lien other than Liens securing Prepetition
Secured Indebtedness and Liens permitted in clause (g) below;
provided, however, that, with respect to clause (ii) only, all such
Liens shall be on terms acceptable to the Administrative Agent,
including with respect to the subordination of all such Liens to the
Liens of the Administrative Agent;
(b) Inventory which is defective, or not in good or
merchantable condition or fails to meet standards for sale or use
imposed by governmental agencies, departments, or divisions having
regulatory authority over such goods;
(c) Inventory which is not useable or salable at prices
approximating its cost in the ordinary course of the business
(including, without duplication, the amount of any reserves for
obsolescence, unsalability, or decline in value);
(d) Inventory located outside of the United States or in
transit (other than between locations operated by the Loan Parties);
(e) Inventory which is leased or held on sale and return,
sale on approval, consignment, or other repurchase or return basis;
(f) Inventory that has been returned to a Loan Party unless
such Inventory meets all of the other requirements of eligibility
contained herein or repossessed by a Loan Party;
(g) Inventory that is located in a public warehouse or in
possession of a bailee or in a facility leased by a Loan Party unless
(i) the Liens and other rights of the applicable warehouseman,
bailee, or lessor are subject to the automatic stay or fully
subordinated to the Administrative Agent's Liens, (ii) the applicable
warehouseman, bailee, or lessor shall have delivered to the
Administrative Agent a Bailee's Letter or Landlord Waiver or (iii) a
reserve shall have been established by the Administrative Agent with
respect thereto;
(h) Inventory that is not finished goods or is raw
materials, work-in-process, chemicals, samples, prototypes, supplies,
or packing and shipping materials;
(i) Inventory that is subject to a third party's trademark
or other proprietary right, unless the Administrative Agent is
satisfied that it could sell such Inventory on satisfactory terms
during the existence of an Event of Default;
(j) Inventory which is to be returned to any vendor;
(k) any capitalized costs included in Inventory;
(l) Inventory designated as "credits and trades";
(m) Inventory in the possession of outside processors; and
(n) Inventory which fails to meet such other specifications
and requirements as may from time to time be established by the
Administrative Agent on three Business Days' prior written notice
thereof to the Borrower, in its sole discretion exercised reasonably
and in accordance with customary business practices for its
comparable asset based transactions.
"Entitlement Holder" has the meaning given to such term in
the UCC.
"Entitlement Order" has the meaning given to such term in
the UCC.
"Environmental Laws" means all applicable Requirements of
Law now or hereafter in effect and as amended or supplemented from time to
time, relating to pollution or the regulation and protection of human or
animal health, safety, the environment or natural resources, including the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended (42 U.S.C. ss. 9601 et seq.); the Hazardous Material Transportation
Act, as amended (49 U.S.C. ss. 5101 et seq.); the Federal Insecticide,
Fungicide, and Rodenticide Act, as amended (7 U.S.C. ss. 136 et seq.); the
Resource Conservation and Recovery Act, as amended (42 U.S.C. ss. 6901 et
seq.); the Toxic Substance Control Act, as amended (15 U.S.C. ss. 2601 et
seq.); the Clean Air Act, as amended (42 U.S.C. ss. 7401 et seq.); the Federal
Water Pollution Control Act, as amended (33 U.S.C. ss. 1251 et seq.); the
Occupational Safety and Health Act, as amended (29 U.S.C. ss. 651 et seq.);
the Safe Drinking Water Act, as amended (42 U.S.C. ss. 300f et seq.); and each
of their state and local counterparts or equivalents and any transfer of
ownership notification or approval statute, including the Industrial Site
Recovery Act (N.J. Stat. ▇▇▇. ss. 13:1K-6 et seq.).
"Environmental Liabilities and Costs" means, with respect to
any Person, all liabilities, obligations, responsibilities, Remedial Actions,
losses, damages, punitive damages, consequential damages, treble damages,
costs and expenses (including all fees, disbursements and expenses of counsel,
experts and consultants and costs of investigation and feasibility studies),
fines, penalties, sanctions and interest incurred as a result of any claim or
demand by any other Person, whether based in contract, tort, implied or
express warranty, strict liability, criminal or civil statute and whether
arising under any Environmental Law, Permit, order or agreement with any
Governmental Authority or other Person, in each case relating to any
environmental, health or safety condition or to any Release or threatened
Release and resulting from the past, present or future operations of, or
ownership of property by, such Person or any of its Subsidiaries.
"Environmental Lien" means any Lien in favor of any
Governmental Authority for Environmental Liabilities and Costs.
"Equipment" has the meaning given to such term in the UCC.
"Equity Equivalents" has the meaning specified in Schedule
2.19.
"Equity Issuance" means the issue or sale of any Stock of
the Borrower or any Subsidiary of the Borrower by the Borrower or any
Subsidiary of the Borrower to any Person other than the Borrower or any
Subsidiary of the Borrower.
"ERISA" means the United States Employee Retirement Income
Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or
not incorporated) under common control or treated as a single employer with
the Borrower or any of its Subsidiaries within the meaning of Section 414 (b),
(c), (m) or (o) of the Code.
"ERISA Event" means (a) a reportable event described in
Section 4043(b) or 4043(c)(1), (2), (3), (5), (6), (8) or (9) of ERISA with
respect to a Title IV Plan or a Multiemployer Plan; (b) the withdrawal of the
Borrower, any of its Subsidiaries or any ERISA Affiliate from a Title IV Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (c) the
complete or partial withdrawal of the Borrower, any of its Subsidiaries or any
ERISA Affiliate from any Multiemployer Plan; (d) notice of reorganization or
insolvency of a Multiemployer Plan; (e) the filing of a notice of intent to
terminate a Title IV Plan or the treatment of a plan amendment as a
termination under Section 4041 of ERISA; (f) the institution of proceedings to
terminate a Title IV Plan or Multiemployer Plan by the PBGC; (g) the failure
to make any required contribution to a Title IV Plan or Multiemployer Plan;
(h) the imposition of a lien under Section 412 of the Code or Section 302 of
ERISA on the Borrower or any of its Subsidiaries or any ERISA Affiliate; or
(i) any other event or condition that might reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Title IV Plan or Multiemployer
Plan or the imposition of any liability under Title IV of ERISA, other than
for PBGC premiums due but not delinquent under Section 4007 of ERISA.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Federal Reserve Board.
"Eurodollar Base Rate" means, with respect to any Interest
Period for any Eurodollar Rate Loan, the rate determined by the Administrative
Agent to be the offered rate for deposits in Dollars for the applicable
Interest Period appearing on the Dow ▇▇▇▇▇ Markets Telerate Page 3750 as of
11:00 a.m., London time, on the second full Business Day next preceding the
first day of each Interest Period. In the event that such rate does not appear
on the Dow ▇▇▇▇▇ Markets Telerate Page 3750 (or otherwise on the Dow ▇▇▇▇▇
Markets screen), the Eurodollar Base Rate for the purposes of this definition
shall be determined by reference to such other comparable publicly available
service for displaying eurodollar rates as may be selected by the
Administrative Agent, or, in the absence of such availability, the Eurodollar
Base Rate shall be the rate of interest determined by the Administrative Agent
to be the rate per annum at which deposits in Dollars are offered by the
principal office of Citibank in London to major banks in the London interbank
market at 11:00 a.m., London time, two Business Days before the first day of
such Interest Period in an amount substantially equal to the Eurodollar Rate
Loan of Citibank for a period equal to such Interest Period.
"Eurodollar Lending Office" means, with respect to any
Lender, the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule II (Applicable Lending Offices and Addresses for
Notices) or on the Assignment and Acceptance by which it became a Lender (or,
if no such office is specified, its Domestic Lending Office) or such other
office of such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, with respect to any Interest Period
for any Eurodollar Rate Loan, an interest rate per annum equal to the rate per
annum obtained by dividing (a) the Eurodollar Base Rate by (b) (i) a
percentage equal to 100% minus (ii) the reserve percentage applicable two
Business Days before the first day of such Interest Period under regulations
issued from time to time by the Federal Reserve Board for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve System
in New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the Eurodollar Rate
is determined) having a term equal to such Interest Period.
"Eurodollar Rate Loan" means any Loan that, for an Interest
Period, bears interest based on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 9.1
(Events of Default).
"Existing Collateral Agent" means Bank of America, N.A., in
its capacity as collateral agent under the Existing Credit Agreement, and its
successors and assigns.
"Existing Credit Agreement" means that certain Second
Amended and Restated Credit Agreement, dated as of September 7, 2004, among
the Borrower, certain of its Subsidiaries party thereto, the institutions
party thereto as lenders and issuing banks, Bank of America, N.A., as the
revolving agent, Jewelry Investors II, L.L.C., as the term agent, and the
Existing Collateral Agent.
"Facilities" means (a) the Term Loan Facility and (b) the
Revolving Credit Facility.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to 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 for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average of the quotations
for such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by it.
"Federal Reserve Board" means the Board of Governors of the
United States Federal Reserve System, or any successor thereto.
"Fee Letter" means the letter, dated as of January 24, 2005,
addressed to the Borrower from Citicorp and the Arranger and accepted by the
Borrower on January 25, 2005, with respect to certain fees to be paid from
time to time to Citicorp and the Arranger.
"Final Order" means the order of the Bankruptcy Court
pursuant to section 364 of the Bankruptcy Code attached as Exhibit J,
approving the Original DIP Credit Agreement and the other Loan Documents (as
defined therein) and authorizing the incurrence by the Loan Parties of
permanent post-petition secured and super-priority Indebtedness in accordance
with the Original DIP Credit Agreement, and as to which no stay has been
entered and which has not been reversed, modified, vacated or overturned,
except to the extent expressly provided in the Amended and Restated DIP Order.
"Financial Asset" has the meaning given to such term in the
UCC.
"Financial Statements" means the financial statements of the
Borrower and its Subsidiaries delivered in accordance with Sections 4.4
(Financial Statements) and 6.1 (Financial Statements).
"First Day Orders" means all orders entered by the
Bankruptcy Court on the Petition Date or within five Business Days of the
Petition Date or based on motions filed on the Petition Date or within five
Business Days of the Petition Date.
"Fiscal Month" shall mean each of the twelve fiscal months
of the Borrower, each of which ends on or about the last day of a calendar
month.
"Fiscal Quarter" means each of the three-Fiscal Month
periods ending on or about March 31, June 30, September 30 and December 31.
"Fiscal Year" means the twelve-Fiscal Month period ending on
or about September 30.
"Fully Diluted Basis" has the meaning specified in Schedule
2.19.
"Fund" means any Person (other than a natural Person) that
is or will be engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
its business.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time set forth in the
opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and the statements and
pronouncements of the Financial Accounting Standards Board, or in such other
statements by such other entity as may be in general use by significant
segments of the accounting profession, that are applicable to the
circumstances as of the date of determination.
"General Intangible" has the meaning given to such term in
the UCC.
"Governmental Authority" means any nation, sovereign or
government, any state or other political subdivision thereof and any entity or
authority exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, including any central
bank or stock exchange.
"Gross Installment Contract Payments" means, as of any date
of determination with respect to each Installment Contract, the outstanding
balance thereof including all unearned interest, premiums for insurance and
product warranties, and other fees and charges, whether earned or unearned,
owing by the debtor thereunder.
"Guaranty" means the guaranty of the Secured Obligations of
the Borrower made by the Subsidiary Guarantors pursuant to Article X
(Guaranty) of this Agreement.
"Guaranty Obligation" means, as applied to any Person, any
direct or indirect liability, contingent or otherwise, of such Person with
respect to any Indebtedness of another Person, if the purpose or intent of
such Person in incurring the Guaranty Obligation is to provide assurance to
the obligee of such Indebtedness that such Indebtedness will be paid or
discharged, that any agreement relating thereto will be complied with, or that
any holder of such Indebtedness will be protected (in whole or in part)
against loss in respect thereof, including (a) the direct or indirect
guaranty, endorsement (other than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with
recourse by such Person of Indebtedness of another Person and (b) any
liability of such Person for Indebtedness of another Person through any
agreement (contingent or otherwise) (i) to purchase, repurchase or otherwise
acquire such Indebtedness or any security therefor or to provide funds for the
payment or discharge of such Indebtedness (whether in the form of a loan,
advance, stock purchase, capital contribution or otherwise), (ii) to maintain
the solvency or any balance sheet item, level of income or financial condition
of another Person, (iii) to make take-or-pay or similar payments, if required,
regardless of non-performance by any other party or parties to an agreement,
(iv) to purchase, sell or lease (as lessor or lessee) property, or to purchase
or sell services, primarily for the purpose of enabling the debtor to make
payment of such Indebtedness or to assure the holder of such Indebtedness
against loss or (v) to supply funds to, or in any other manner invest in, such
other Person (including to pay for property or services irrespective of
whether such property is received or such services are rendered), if in the
case of any agreement described under clause (b)(i), (ii), (iii), (iv) or (v)
above the primary purpose or intent thereof is to provide assurance that
Indebtedness of another Person will be paid or discharged, that any agreement
relating thereto will be complied with or that any holder of such Indebtedness
will be protected (in whole or in part) against loss in respect thereof. The
amount of any Guaranty Obligation shall be equal to the amount of the
Indebtedness so guaranteed or otherwise supported.
"▇▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇▇ Distressed Investment Master
Fund, Ltd.
"▇▇▇▇▇▇▇ Sponsored Plan" has the meaning specified in
Schedule 2.19.
"Hedging Contracts" means all Interest Rate Contracts,
foreign exchange contracts, currency swap or option agreements, forward
contracts, commodity swap, purchase or option agreements, other commodity
price hedging arrangements and all other similar agreements or arrangements
designed to alter the risks of any Person arising from fluctuations in
interest rates, currency values or commodity prices.
"Indebtedness" of any Person means without duplication (a)
all indebtedness of such Person for borrowed money, (b) all obligations of
such Person evidenced by notes, bonds, debentures or similar instruments or
that bear interest, (c) all reimbursement and all obligations with respect to
letters of credit, bankers' acceptances, surety bonds and performance bonds,
whether or not matured, (d) all indebtedness for the deferred purchase price
of property or services, other than trade payables and other account payables
and expense accruals incurred in the ordinary course of business, (e) all
indebtedness of such Person created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (f) all Capital Lease Obligations of such Person and the present
value of future rental payments under all synthetic leases, (g) all Guaranty
Obligations of such Person, (h) all obligations of such Person to purchase,
redeem, retire, defease or otherwise acquire for value any Stock or Stock
Equivalents of such Person, valued, in the case of redeemable preferred stock,
at the greater of its voluntary liquidation preference and its involuntary
liquidation preference plus accrued and unpaid dividends, (i) all payments
that such Person would have to make in the event of an early termination on
the date Indebtedness of such Person is being determined in respect of Hedging
Contracts of such Person and (j) all Indebtedness of the type referred to
above secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien upon or in property
(including Accounts and General Intangibles) owned by such Person, even though
such Person has not assumed or become liable for the payment of such
Indebtedness.
"Indemnified Matter" has the meaning specified in Section
13.4 (Indemnities).
"Indemnitee" has the meaning specified in Section 13.4
(Indemnities).
"Initial Closing Date" means January 31, 2005.
"Installment Contract" means any loan agreement, installment
sale contract, or other form of instrument or document evidencing obligations
owing by a retail purchaser to a Loan Party with respect to financial
accommodations provided by such Loan Party to such purchaser in connection
with a sale of merchandise to such purchaser.
"Instrument" has the meaning given to such term in the UCC,
other than instruments that constitute, or are a part of a group of writings
that constitute, Chattel Paper.
"Intellectual Property" means, collectively, all rights,
priorities and privileges of any Loan Party relating to intellectual property,
whether arising under United States, multinational or foreign laws or
otherwise, including Copyrights, Copyright Licenses, Patents, Patent Licenses,
Trademarks, Trademark Licenses and trade secrets, and all rights to ▇▇▇ at law
or in equity for any infringement or other impairment thereof, including the
right to receive all proceeds and damages therefrom.
"Interest Period" means, in the case of any Eurodollar Rate
Loan, (a) initially, the period commencing on the date such Eurodollar Rate
Loan is made or on the date of conversion of a Base Rate Loan to such
Eurodollar Rate Loan and ending one, two, three or six months thereafter, as
selected by the Borrower in its Notice of Borrowing or Notice of Conversion or
Continuation given to the Administrative Agent pursuant to Section 2.2
(Borrowing Procedures) or 2.11 (Conversion/Continuation Option), and (b)
thereafter, if such Loan is continued, in whole or in part, as a Eurodollar
Rate Loan pursuant to Section 2.11 (Conversion/Continuation Option), a period
commencing on the last day of the immediately preceding Interest Period
therefor and ending one, two, three or six months thereafter, as selected by
the Borrower in its Notice of Conversion or Continuation given to the
Administrative Agent pursuant to Section 2.11 (Conversion/Continuation
Option); provided, however, that with respect to all Revolving Loans that are
Eurodollar Rate Loans prior to the Syndication Completion Date, each such
period shall end seven days after the date of making thereof, conversion
thereto or continuation thereof; provided, further, that all of the foregoing
provisions relating to Interest Periods in respect of Eurodollar Rate Loans
are subject to the following:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall
be extended to the next succeeding Business Day, unless the
result of such extension would be to extend such Interest
Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the
last Business Day of a calendar month;
(iii) the Borrower may not select any Interest
Period that ends after the date of a scheduled principal
payment on the Loans as set forth in Article II (The
Facilities) unless, after giving effect to such selection,
the aggregate unpaid principal amount of the Loans for which
Interest Periods end after such scheduled principal payment
shall be equal to or less than the principal amount to which
the Loans are required to be reduced after such scheduled
principal payment is made;
(iv) the Borrower may not select any Interest
Period in respect of Loans having an aggregate principal
amount of less than $500,000; and
(v) there shall be outstanding at any one time no
more than 6 Interest Periods in the aggregate.
"Interest Rate Contracts" means all interest rate swap
agreements, interest rate cap agreements, interest rate collar agreements and
interest rate insurance.
"Interim Projections" means those financial projections
covering the 12 month period from January 2005 through December 2005
inclusive, delivered to the Lenders by the Borrower on the Initial Closing
Date.
"Inventory" has the meaning given to such term in the UCC.
"Investment" means, with respect to any Person, (a) any
purchase or other acquisition by such Person of (i) any Security issued by,
(ii) a beneficial interest in any Security issued by, or (iii) any other
equity ownership interest in, any other Person, (b) any purchase by such
Person of all or a significant part of the assets of a business conducted by
any other Person, or all or substantially all of the assets constituting the
business of a division, branch or other unit operation of any other Person,
(c) any loan, advance (other than deposits with financial institutions
available for withdrawal on demand, prepaid expenses, accounts receivable and
similar items made or incurred in the ordinary course of business as presently
conducted) or capital contribution by such Person to any other Person,
including all Indebtedness of any other Person to such Person arising from a
sale of property by such Person other than in the ordinary course of its
business and (d) any Guaranty Obligation incurred by such Person in respect of
Indebtedness of any other Person.
"Investment Property" has the meaning given to such term in
the UCC.
"IRS" means the Internal Revenue Service of the United
States or any successor thereto.
"Issue" means, with respect to any Letter of Credit, to
issue, extend the expiry of, renew or increase the maximum face amount
(including by deleting or reducing any scheduled decrease in such maximum face
amount) of, such Letter of Credit. The terms "Issued" and "Issuance" shall
have a corresponding meaning.
"Issuer" means each Lender or Affiliate of a Lender that (a)
is listed on the signature pages hereof as an "Issuer" or (b) hereafter
becomes an Issuer with the approval of the Administrative Agent and the
Borrower by agreeing pursuant to an agreement with and in form and substance
satisfactory to the Administrative Agent and the Borrower to be bound by the
terms hereof applicable to Issuers.
"Joinder Agreement" means a joinder agreement, substantially
in the form of Exhibit N, executed and delivered by each additional Subsidiary
Guarantor pursuant to Section 7.11.
"Land" of any Person means all of those plots, pieces or
parcels of land now owned, leased or hereafter acquired or leased or purported
to be owned, leased or hereafter acquired or leased (including, in respect of
the Loan Parties, as reflected in the most recent Financial Statements) by
such Person.
"Landlord Waiver" means a letter in form and substance
reasonably acceptable to the Administrative Agent and executed by a landlord
in respect of Inventory of any Loan Party located at any leased premises of
such Loan Party pursuant to which such landlord, among other things, waives or
subordinates on terms and conditions reasonably acceptable to the
Administrative Agent any Lien such landlord may have in respect of such
Inventory.
"Leases" means, with respect to any Person, all of those
leasehold estates in real property of such Person, as lessee, as such may be
amended, supplemented or otherwise modified from time to time.
"Lender" means the Swing Loan Lender and each other
financial institution or other entity that (a) is listed on the signature
pages hereof as a "Lender" or (b) from time to time becomes a party hereto by
execution of an Assignment and Acceptance.
"Letter of Credit" means any letter of credit Issued
pursuant to Section 2.4 (Letters of Credit) (including, prior to the Effective
Date, pursuant to the Original DIP Credit Agreement).
"Letter of Credit Obligations" means, at any time, the
aggregate of all liabilities at such time of the Borrower to all Issuers with
respect to Letters of Credit, whether or not any such liability is contingent,
including, without duplication, the sum of (a) the Reimbursement Obligations
at such time and (b) the Letter of Credit Undrawn Amounts at such time.
"Letter of Credit Reimbursement Agreement" has the meaning
specified in Section 2.4(a)(vi) (Letter of Credit).
"Letter of Credit Request" has the meaning specified in
Section 2.4(c) (Letters of Credit).
"Letter of Credit Sublimit" means $15,000,000.
"Letter of Credit Undrawn Amounts" means, at any time, the
aggregate undrawn face amount of all Letters of Credit outstanding at such
time.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment, charge, deposit arrangement, encumbrance, lien
(statutory or other), security interest or preference, priority or other
security agreement or preferential arrangement of any kind or nature
whatsoever intended to assure payment of any Indebtedness or the performance
of any other obligation, including any conditional sale or other title
retention agreement, the interest of a lessor under a Capital Lease and any
financing lease having substantially the same economic effect as any of the
foregoing, and the filing of any financing statement under the UCC or
comparable law of any jurisdiction naming the owner of the asset to which such
Lien relates as debtor.
"LLC" means each limited liability company in which any Loan
Party has an interest.
"Loan" means any loan made by any Lender pursuant to this
Agreement.
"Loan Documents" means, collectively, this Agreement, the
Notes (if any), the Guaranty, the Fee Letter, each Letter of Credit
Reimbursement Agreement, the Collateral Documents and each certificate,
agreement or document executed by a Loan Party and delivered to the
Administrative Agent or any Lender in connection with or pursuant to any of
the foregoing.
"Loan Party" means each of the Borrower, each Subsidiary
Guarantor and each other Subsidiary of the Borrower that executes and delivers
a Loan Document.
"Material Adverse Change" means a material adverse change in
any of (a) the condition (financial or otherwise), business, performance,
prospects, operations or properties of the Borrower and its Subsidiaries taken
as a whole, (b) the legality, validity or enforceability of any Loan Document,
(c) the perfection or priority of the Liens granted pursuant to this
Agreement, the Collateral Documents and the Orders, (d) the ability of the
Borrower to repay the Obligations or of the other Loan Parties to perform
their respective obligations under the Loan Documents or (e) the rights and
remedies of the Administrative Agent, the Lenders or the Issuers under the
Loan Documents.
"Material Adverse Effect" means an effect that results in or
causes, or could reasonably be expected to result in or cause, a Material
Adverse Change.
"Material Intellectual Property" means Intellectual Property
owned by or licensed to a Loan Party and material to the conduct of any Loan
Party's business.
"Maximum Credit" means, at any time, (a) the lesser of (i)
the Revolving Credit Commitments in effect at such time and (ii) the Borrowing
Base at such time minus (b) the aggregate amount of the Availability Reserve
in effect at such time.
"▇▇▇▇▇'▇" means ▇▇▇▇▇'▇ Investors Services, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined
in Section 4001(a)(3) of ERISA, to which the Borrower, any of its Subsidiaries
or any ERISA Affiliate has any obligation or liability, contingent or
otherwise.
"Net Balance" means, as of any date of determination, the
Gross Installment Contract Payments of an Installment Contract, less all
unearned interest, fees, and charges (including premiums for insurance and
product warranties) owing by the debtor thereunder.
"Net Cash Proceeds" means proceeds received by the Borrower
or any of its Subsidiaries after the Initial Closing Date in cash or Cash
Equivalents from any (a) Asset Sale, other than an Asset Sale permitted under
Section 8.4 (Sale of Assets), net of (i) the reasonable cash costs of sale,
assignment or other disposition, (ii) taxes paid or reasonably estimated to be
payable as a result thereof and (iii) any amount required by the Bankruptcy
Court to be paid or prepaid on Indebtedness (other than the Obligations)
secured by a perfected and unavoidable lien on the assets subject to such
Asset Sale; provided, however, that evidence of each of clauses (i), (ii) and
(iii) above is provided to the Administrative Agent in form and substance
satisfactory to it, (b) Property Loss Event, (c)(i) Equity Issuance or (ii)
Debt Issuance or (d) Avoidance Action, in the case of clauses (a), (b) and
(c), net of brokers' and advisors' fees and other costs incurred in connection
with such transaction; provided, however, that in the case of clause (c),
evidence of such costs is provided to the Administrative Agent in form and
substance satisfactory to it.
"Net Orderly Liquidation Value" means, with respect to any
Inventory or Installment Contracts, the recovery value thereof in an orderly
liquidation net of all costs of liquidation, as reasonably determined by the
Administrative Agent based upon methodology utilized in the most recent
written appraisal of the Loan Parties' Inventory and Installment Contracts, as
determined by, with respect to Installment Contracts, EMCC Inc., with respect
to Inventory, GB Asset Advisors, LLC or in any case, another third party
appraiser satisfactory to the Administrative Agent.
"New Common Equity" has the meaning specified in Schedule
2.19.
"Non-Consenting Lender" has the meaning specified in Section
13.1(c) (Amendments, Waivers, Etc.).
"Non-Funding Lender" has the meaning specified in Section
2.2(d) (Borrowing Procedures).
"Non-U.S. Lender" means each Lender (or the Administrative
Agent) that is not a United States person as defined in Section 7701(a)(30) of
the Code.
"Non-U.S. Person" means any Person that is not a Domestic
Person.
"Note" means any Revolving Credit Note or Term Loan Note.
"Notice of Borrowing" has the meaning specified in Section
2.2(a) (Borrowing Procedures).
"Notice of Conversion or Continuation" has the meaning
specified in Section 2.11 (Conversion/Continuation Options).
"Obligations" means the Loans, the Letter of Credit
Obligations and all other amounts, obligations, covenants and duties owing by
the Borrower to the Administrative Agent, any Lender, any Issuer, any
Affiliate of any of them or any Indemnitee, of every type and description
(whether by reason of an extension of credit, opening or amendment of a letter
of credit or payment of any draft drawn or other payment thereunder, loan,
guaranty, indemnification, foreign exchange or currency swap transaction,
interest rate hedging transaction or otherwise), present or future, arising
under this Agreement, any other Loan Document, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereafter arising and however acquired and whether
or not evidenced by any note, guaranty or other instrument or for the payment
of money, including all letter of credit and other fees, including the
Applicable Term Loan Repayment Fee, interest, charges, expenses, attorneys'
fees and disbursements and other sums chargeable to the Borrower under this
Agreement, any other Loan Document and all obligations of the Borrower under
any Loan Document to provide cash collateral for any Letter of Credit
Obligations.
"Orders" means the Final Order and the Amended and Restated
DIP Order.
"Original DIP Credit Agreement" has the meaning specified in
the recitals to this Agreement.
"Partnership" means each partnership in which any Loan Party
has an interest.
"Patents" means (a) all letters patent of the United States,
any other country or any political subdivision thereof and all reissues and
extensions thereof, (b) all applications for letters patent of the United
States or any other country and all divisions, continuations and
continuations-in-part thereof, and (c) all rights to obtain any reissues or
extensions of the foregoing.
"Patent License" means all agreements, whether written or
oral, providing for the grant by or to any Loan Party of any right to
manufacture, use, import, sell or offer for sale any invention covered in
whole or in part by a Patent.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"Permit" means any permit, approval, authorization,
license, variance or permission required from a Governmental Authority under
an applicable Requirement of Law.
"Permitted Prepetition Claim Payment" means a payment (as
adequate protection or otherwise) on account of any claim arising or deemed to
have arisen prior to the commencement of the Cases, which is made (i) pursuant
to authority granted by a First Day Order, (ii) pursuant to a Permitted
Transaction in respect of the Vendor Lien Program, (iii) on account of claims
in respect of the assumption of leases, (iv) with the consent of the
Administrative Agent, (v) to pay secured Indebtedness constituting a Capital
Lease or purchase money Indebtedness with Proceeds received from the sale of
the specific assets securing such Indebtedness, (vi) on account of reclamation
claims up to $5,000,000 in the aggregate, (vii) in respect of interest
payments at the non-default contract rate on the secured Indebtedness incurred
to finance the acquisition of the Chief Executive Office, or (viii) in respect
of other amounts not exceeding $1,000,000 in the aggregate.
"Permitted Transactions" means the transactions described on
Schedule 1.1.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, estate, trust, limited
liability company, unincorporated association, joint venture or other entity
or a Governmental Authority.
"Petition Date" has the meaning specified in the recitals to
this Agreement.
"Plan of Reorganization" means a Chapter 11 plan of
reorganization in the Cases.
"Pledged Collateral" means, collectively, the Pledged Notes,
the Pledged Stock, the Pledged Partnership Interests, the Pledged LLC
Interests, any other Investment Property of any Loan Party in excess of
$100,000, all certificates or other instruments representing any of the
foregoing, all Security Entitlements of any Loan Party in respect of any of
the foregoing, all dividends, interest distributions, cash, warrants, rights,
instruments and other property or Proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or
all of the foregoing. Pledged Collateral may be General Intangibles or
Investment Property.
"Pledged LLC Interests" means all of any Loan Party's right,
title and interest as a member of any LLCs and all of such Loan Party's right,
title and interest in, to and under any LLC Agreement to which it is a party.
"Pledged Notes" means all right, title and interest of any
Loan Party, in the Instruments evidencing all Indebtedness owed to such Loan
Party issued by the obligors named therein, and all interest, cash,
Instruments and other property or Proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or
all of such Indebtedness.
"Pledged Partnership Interests" shall mean all of any Loan
Party's right, title and interest as a limited and/or general partner in all
Partnerships and all of such Loan Party's right, title and interest in, to and
under any Partnership Agreements to which it is a party.
"Pledged Stock" means the shares of capital stock owned by
each Loan Party; provided, however, that only the outstanding capital stock of
a subsidiary that is not a Domestic Subsidiary possessing up to but not
exceeding 65% of the voting power of all classes of capital stock of such
controlled foreign corporation entitled to vote shall be deemed to be pledged
hereunder.
"POR Value of Equity" has the meaning specified in Schedule
2.19.
"Prepayment 363 Sale" means (i) a Core 363 Sale or (ii) one
or more 363 Sales with proceeds in excess of $5,000,000 in the aggregate
during the term of this Agreement requiring the consent of the Requisite
Revolving Credit Lenders.
"Prepetition Collateral" shall mean all assets securing the
Prepetition Secured Indebtedness.
"Prepetition Secured Indebtedness" shall mean (i) all
Indebtedness under the Existing Credit Agreement, (ii) all pre-petition
Indebtedness under the Vendor Lien Program and (iii) all other pre-petition
secured Indebtedness of the Borrower and its subsidiaries (except the
Indebtedness secured by the Chief Executive Office and incurred to finance the
acquisition thereof).
"Proceeds" has the meaning given to such term in the UCC.
"Pro Forma Balance Sheet" has the meaning specified in
Section 4.4(d).
"Pro Forma Basis" means, with respect to any determination
for any period, that such determination shall be made giving pro forma effect
to each acquisition of a business consummated during such period, together
with all transactions relating thereto consummated during such period
(including any incurrence, assumption, refinancing or repayment of
Indebtedness), as if such acquisition and related transactions had been
consummated on the first day of such period, in each case based on historical
results accounted for in accordance with GAAP and, to the extent applicable,
reasonable assumptions that are specified in details in the relevant
Compliance Certificate, Financial Statement or other document provided to the
Administrative Agent or any Lender in connection herewith in accordance with
Regulation S-X of the Securities Act of 1933.
"Property Loss Event" means (a) any loss of or damage to
property of the Borrower or any of its Subsidiaries that results in the
receipt by such Person of proceeds of insurance in excess of $250,000
(individually or in the aggregate) or (b) any taking of property of the
Borrower or any of its Subsidiaries that results in the receipt by such Person
of a compensation payment in respect thereof in excess of $250,000
(individually or in the aggregate).
"Protective Advances" means all expenses, disbursements and
advances incurred by the Administrative Agent pursuant to the Loan Documents
after the occurrence and during the continuance of an Event of Default that
the Administrative Agent, in its sole discretion, deems necessary or desirable
to preserve or protect the Collateral or any portion thereof or to enhance the
likelihood, or maximize the amount of repayment of the Obligations.
"Purchasing Lender" has the meaning specified in Section
13.7 (Sharing of Payments, etc.)
"Ratable Portion" or (other than in the expression "equally
and ratably") "ratably" means, with respect to any Lender, (a) with respect to
the Revolving Credit Facility, the percentage obtained by dividing (i) the
Revolving Credit Commitment of such Lender by (ii) the aggregate Revolving
Credit Commitments of all Lenders (or, at any time after the Revolving Credit
Termination Date, the percentage obtained by dividing the aggregate
outstanding principal balance of the Revolving Credit Outstandings owing to
such Lender by the aggregate outstanding principal balance of the Revolving
Credit Outstandings owing to all Lenders) and (b) with respect to the Term
Loan Facility, the percentage obtained by dividing (i) the Term Loan
Commitment of such Lender by (ii) the aggregate Term Loan Commitments of all
Lenders (or, at any time after the Effective Date, the percentage obtained by
dividing the principal amount of such Lender's Term Loans by the aggregate
principal amount of the Term Loans of all Lenders).
"Real Property" of any Person means the Land of such Person,
together with the right, title and interest of such Person, if any, in and to
the streets, the Land lying in the bed of any streets, roads or avenues,
opened or proposed, in front of, the air space and development rights
pertaining to the Land and the right to use such air space and development
rights, all rights of way, privileges, liberties, tenements, hereditaments and
appurtenances belonging or in any way appertaining thereto, all fixtures, all
easements now or hereafter benefiting the Land and all royalties and rights
appertaining to the use and enjoyment of the Land, including all alley, vault,
drainage, mineral, water, oil and gas rights, together with all of the
buildings and other improvements now or hereafter erected on the Land, and any
fixtures appurtenant thereto.
"Register" has the meaning specified in Section 13.2(c)
(Assignments and Participations).
"Reimbursement Date" has the meaning specified in Section
2.4(h) (Letters of Credit).
"Reimbursement Obligations" means, as and when matured, the
obligation of the Borrower to pay, on the date payment is made or scheduled to
be made to the beneficiary under each such Letter of Credit (or at such other
date as may be specified in the applicable Letter of Credit Reimbursement
Agreement) and in the currency drawn (or in such other currency as may be
specified in the applicable Letter of Credit Reimbursement Agreement), all
amounts of the drafts and other requests for payments drawn under Letters of
Credit, and all other matured reimbursement or repayment obligations of the
Borrower to any Issuer with respect to amounts drawn under Letters of Credit.
"Reinvestment Deferred Amount" means, with respect to any
Net Cash Proceeds of any Reinvestment Event, the portion of such Net Cash
Proceeds subject to a Reinvestment Notice.
"Reinvestment Event" means any Property Loss Event in
respect of which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice" means a written notice executed by a
Responsible Officer of the Borrower stating that no Default or Event of
Default has occurred and is continuing and that the Borrower (directly or
indirectly through one of its Subsidiaries) intends and expects to use all or
a specified portion of the Net Cash Proceeds of a Property Loss Event to
acquire replacement assets useful in its or one of its Subsidiaries'
businesses or to effect repairs.
"Reinvestment Prepayment Amount" means, with respect to any
Net Cash Proceeds of any Reinvestment Event, the Reinvestment Deferred Amount
for such Net Cash Proceeds less any amount expended or required to be expended
pursuant to a Contractual Obligation entered into prior to the relevant
Reinvestment Prepayment Date for such Net Cash Proceeds to acquire, to the
extent otherwise permitted hereunder, replacement assets useful in the
business of the Borrower or any of its Subsidiaries or to effect repairs.
"Reinvestment Prepayment Date" means, with respect to any
Net Cash Proceeds of any Reinvestment Event, the earlier of (a) the date
occurring 180 days after such Reinvestment Event and (b) the date that is five
Business Days after the date on which the Borrower shall have notified the
Administrative Agent of the Borrower's determination not to acquire
replacement assets useful in the Borrower's or a Subsidiary's business (or not
to effect repairs) with all or any portion of the relevant Reinvestment
Deferred Amount for such Net Cash Proceeds.
"Release" means, with respect to any Person, any release,
spill, emission, leaking, pumping, injection, deposit, disposal, discharge,
dispersal, leaching or migration, in each case, of any Contaminant into the
indoor or outdoor environment or into or out of any property owned, leased or
operated by such Person, including the movement of Contaminants through or in
the air, soil, surface water, ground water or property.
"Remedial Action" means all actions required to (a) clean
up, remove, treat or in any other way address any Contaminant in the indoor or
outdoor environment, (b) prevent the Release or threat of Release or minimize
the further Release so that a Contaminant does not migrate or endanger or
threaten to endanger public health or welfare or the indoor or outdoor
environment or (c) perform pre-remedial studies and investigations and
post-remedial monitoring and care.
"Requirement of Law" means, with respect to any Person, the
common law and all federal, state, local and foreign laws, treaties, rules and
regulations, orders, judgments, decrees and other determinations of,
concessions, grants, franchises, licenses and other Contractual Obligations
with, any Governmental Authority or arbitrator, applicable to or binding upon
such Person or any of its property or to which such Person or any of its
property is subject.
"Requisite Lenders" means, collectively, (a) on and prior to
the Effective Date, Lenders having more than fifty percent (50%) of the
aggregate outstanding amount of the Commitments, (b) after the Effective Date
and on and prior to the Revolving Credit Termination Date, more than fifty
percent (50%) of the sum of the aggregate outstanding amount of the Revolving
Credit Commitments and the principal amount of all Term Loans then outstanding
and (c) after the Revolving Credit Termination Date, more than fifty percent
(50%) of the sum of the aggregate Revolving Credit Outstandings and the
principal amount of all Term Loans then outstanding; provided, however, that
prior to the Discharge of Revolving Credit Obligations, for the purposes of
Article X, Article XI, clause (A) of Section 2.13(g), and Sections 9.2,
12.1(b), 12.7 and 12.9, and any other provision in any Loan Document relating
to the exercise, following a Default or Event of Default, of any rights or
remedies with respect to any Collateral, "Requisite Lenders" shall mean
"Requisite Revolving Credit Lenders." A Non-Funding Lender shall not be
included in the calculation of "Requisite Lenders."
"Requisite Revolving Credit Lenders" means, collectively,
Revolving Credit Lenders having more than fifty percent (50%) of the aggregate
outstanding amount of the Revolving Credit Commitments or, after the Revolving
Credit Termination Date, more than fifty percent (50%) of the aggregate
Revolving Credit Outstandings. A Non-Funding Lender shall not be included in
the calculation of "Requisite Revolving Credit Lenders."
"Requisite Term Loan Lenders" means, collectively, Term Loan
Lenders having more than 50% of the aggregate outstanding amount of the Term
Loan Commitments or, after the Effective Date, more than fifty percent (50%)
of the principal amount of all Term Loans then outstanding. A Non-Funding
Lender shall not be included in the calculation of "Requisite Term Loan
Lenders."
"Responsible Officer" means, with respect to any Person, any
of the principal executive officers, managing members or general partners of
such Person but, in any event, with respect to financial matters, the chief
executive officer, chief financial officer, treasurer or controller of such
Person.
"Restricted Payment" means (a) any dividend, distribution or
any other payment, whether direct or indirect, on account of any Stock or
Stock Equivalents of the Borrower or any of its Subsidiaries now or hereafter
outstanding and (b) any redemption, retirement, sinking fund or similar
payment, purchase or other acquisition for value, direct or indirect, of any
Stock or Stock Equivalent of the Borrower or any of its Subsidiaries now or
hereafter outstanding.
"Revolving Credit Borrowing" means a borrowing consisting of
Revolving Loans made on the same day by the Revolving Credit Lenders ratably
according to their respective Revolving Credit Commitments.
"Revolving Credit Commitment" means, with respect to each
Revolving Credit Lender, the commitment of such Revolving Credit Lender to
make Revolving Loans and acquire interests in other Revolving Credit
Outstandings in the aggregate principal amount outstanding not to exceed the
amount set forth opposite such Revolving Credit Lender's name on Schedule I
under the caption "Revolving Credit Commitment," as amended to reflect each
Assignment and Acceptance executed by such Revolving Credit Lender and as such
amount may be reduced pursuant to this Agreement.
"Revolving Credit Facility" means the Revolving Credit
Commitments and the provisions herein related to the Revolving Loans, Swing
Loans and Letters of Credit.
"Revolving Credit Lender" means each Lender that (a) has a
Revolving Credit Commitment, (b) holds a Revolving Loan or (c) participates in
any Letter of Credit.
"Revolving Credit Note" means a promissory note of the
Borrower payable to the order of any Revolving Credit Lender in a principal
amount equal to the amount of such Revolving Credit Lender's Revolving Credit
Commitment evidencing the aggregate Indebtedness of the Borrower to such
Revolving Credit Lender resulting from the Revolving Loans owing to such
Revolving Credit Lender.
"Revolving Credit Obligations" means the Secured Obligations
owing by the Borrower and the other Loan Parties to any Revolving Credit
Lender, any Issuer, any Swing Loan Lender, any Affiliate of any of them and
any Indemnitee of any of them.
"Revolving Credit Outstandings" means, at any particular
time, the sum of (a) the principal amount of the Revolving Loans outstanding
at such time, (b) the Letter of Credit Obligations outstanding at such time
and (c) the principal amount of the Swing Loans outstanding at such time.
"Revolving Credit Termination Date" shall mean the earliest
of (a) the Scheduled Termination Date, (b) the date of termination of all of
the Revolving Credit Commitments pursuant to Section 2.5 (Reduction and
Termination of the Commitments), (c) the date on which the Obligations become
due and payable pursuant to Section 9.2 (Remedies) and (d) the date of
consummation of a Core 363 Sale.
"Revolving Loan" has the meaning specified in Section 2.1
(The Commitments).
"S&P" means Standard & Poor's Rating Services.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act" means the United States ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act of 2002.
"Scheduled Termination Date" means the earlier of (i) the
second anniversary of the Initial Closing Date and (ii) the effective date of
a Plan of Reorganization.
"Secured Obligations" means (a) in the case of the Borrower,
(i) the Obligations and (ii) all other amounts, obligations, covenants and
duties owing by the Borrower to the Administrative Agent, any Lender, any
Issuer, any Affiliate of any of them or any Indemnitee, of every type and
description (whether by reason of an extension of credit, opening or amendment
of a letter of credit or payment of any draft drawn or other payment
thereunder, loan, guaranty, indemnification, foreign exchange or currency swap
transaction, interest rate hedging transaction or otherwise), present or
future, arising under each Hedging Contract between the Borrower and any
Person that was a Lender or an Affiliate of a Lender at the time it entered
into such Hedging Contract and each Cash Management Document, and (b) in the
case of any other Loan Party, (i) the obligations of such Loan Party under the
Guaranty and the other Loan Documents to which it is a party and (ii) all
other amounts, obligations, covenants and duties owing by such Loan Party to
the Administrative Agent, any Lender, any Issuer, any Affiliate of any of them
or any Indemnitee, of every type and description (whether by reason of an
extension of credit, opening or amendment of a letter of credit or payment of
any draft drawn or other payment thereunder, loan, guaranty, indemnification,
foreign exchange or currency swap transaction, interest rate hedging
transaction or otherwise), present or future, arising under each Hedging
Contract between such Loan Party and any Person that was a Lender or an
Affiliate of a Lender at the time it entered into such Hedging Contract and
each Cash Management Document.
"Secured Parties" means the Lenders, the Issuers, the
Administrative Agent and any other holder of any "Secured Obligation".
"Securities Account" has the meaning given to such term in
the UCC.
"Securities Account Control Agreement" means a letter
agreement, substantially in the form of Exhibit L (Form of Securities Account
Control Agreement) (with such changes as may be agreed to by the
Administrative Agent), executed by the relevant Loan Party, the Administrative
Agent and the relevant Approved Securities Intermediary.
"Securities Entitlement" has the meaning given to such term
in the UCC.
"Securities Intermediary" has the meaning given to such term
in the UCC.
"Security" means any Stock, Stock Equivalent, voting trust
certificate, bond, debenture, note or other evidence of Indebtedness, whether
secured, unsecured, convertible or subordinated, or any certificate of
interest, share or participation in, any temporary or interim certificate for
the purchase or acquisition of, or any right to subscribe to, purchase or
acquire, any of the foregoing, but shall not include any evidence of the
Obligations.
"Selling Lender" has the meaning specified in Section 13.7
(Sharing of Payments, Etc.).
"Special Purpose Vehicle" means any special purpose funding
vehicle of any Lender identified as such in writing by any such Lender to the
Administrative Agent.
"Standby Letter of Credit" means any Letter of Credit that
is not a Documentary Letter of Credit.
"Stock" means shares of capital stock (whether denominated
as common stock or preferred stock), beneficial, partnership or membership
interests, participations or other equivalents (regardless of how designated)
of or in a corporation, partnership, limited liability company or equivalent
entity, whether voting or non-voting.
"Stock Equivalents" means all securities convertible into or
exchangeable for Stock and all warrants, options or other rights to purchase
or subscribe for any Stock, whether or not presently convertible, exchangeable
or exercisable.
"Subsidiary" means, with respect to any Person, any
corporation, partnership, limited liability company or other business entity
of which an aggregate of 50% or more of the outstanding Voting Stock is, at
the time, directly or indirectly, owned or controlled by such Person or one or
more Subsidiaries of such Person.
"Subsidiary Guarantor" means each Subsidiary of the Borrower
party to or that becomes party to this Agreement.
"Substitute Institution" has the meaning specified in
Section 2.17 (Substitution of Lenders).
"Substitution Notice" has the meaning specified in Section
2.17 (Substitution of Lenders).
"Swing Loan" has the meaning specified in Section 2.3 (Swing
Loans).
"Swing Loan Lender" means Citicorp or any other Revolving
Credit Lender that becomes the Administrative Agent or agrees, with the
approval of the Administrative Agent and the Borrower, to act as the Swing
Loan Lender hereunder, in each case, in it capacity as the Swing Loan Lender
hereunder.
"Swing Loan Request" has the meaning specified in Section
2.3(b) (Swing Loans).
"Swing Loan Sublimit" means $15,000,000.
"Syndication Completion Date" means the earlier to occur of
(a) the 30th day following the Effective Date and (b) the date upon which the
Administrative Agent determines in its sole discretion that the primary
syndication of the Loans and Commitments has been completed.
"Tax Affiliate" means, with respect to any Person, (a) any
Subsidiary of such Person, and (b) any Affiliate of such Person with which
such Person files or is eligible to file consolidated, combined or unitary tax
returns.
"Tax Return" has the meaning specified in Section 4.8(a)
(Taxes).
"Taxes" has the meaning specified in Section 2.16(a)
(Taxes).
"Term Loan" has the meaning specified in Section 2.1(b) (The
Commitments).
"Term Loan Borrowing" means a borrowing consisting of Term
Loans made on the same day by the Term Loan Lenders ratably according to their
respective Term Loan Commitments.
"Term Loan Commitment" means, with respect to each Term Loan
Lender, the commitment of such Lender to make Term Loans to the Borrower in
the aggregate principal amount outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule I under the caption "Term Loan
Commitment," as amended to reflect each Assignment and Acceptance executed by
such Lender and as such amount may be reduced pursuant to this Agreement.
"Term Loan Facility" means the Term Loan Commitments and the
provisions herein related to the Term Loans.
"Term Loan Lender" means each Lender that has a Term Loan
Commitment or that holds a Term Loan.
"Term Loan Maturity Date" means the earliest of (i) the
second anniversary of the Initial Closing Date, (ii) the effective date of a
Plan of Reorganization in the Cases, (iii) the date the Revolving Loans
mature, (iv) the date on which the Obligations become due and payable pursuant
to Section 9.2 (Remedies) and (v) the date of consummation of a Core 363 Sale.
"Term Loan Note" means a promissory note of the Borrower
payable to the order of any Term Loan Lender in a principal amount equal to
the amount of the Term Loan owing to such Lender.
"Term Loan Termination Amount" has the meaning specified in
Schedule 2.19.
"363 Sale" shall mean any transaction pursuant to which one
or more purchasers acquire, in a single transaction or a series of related
transactions, the assets of the Loan Parties and their Subsidiaries pursuant
to a sale under Section 363 of the Bankruptcy Code.
"Title IV Plan" means a pension plan, other than a
Multiemployer Plan, covered by Title IV of ERISA and to which the Borrower any
of its Subsidiaries or any ERISA Affiliate has any obligation or liability,
contingent or otherwise.
"Trademarks" means (a) all trademarks, trade names,
corporate names, company names, business names, fictitious business names,
trade styles, service marks, logos and other source or business identifiers,
and all goodwill associated therewith, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all applications in
connection therewith, whether in the United States Patent and Trademark Office
or in any similar office or agency of the United States, any State thereof or
any other country or any political subdivision thereof, or otherwise, and all
common-law rights related thereto, and (b) the right to obtain all renewals
thereof.
"Trademark License" means any agreement, whether written or
oral, providing for the grant by or to any Loan Party of any right to use any
Trademark.
"UCC" means the Uniform Commercial Code as from time to time
in effect in the State of New York; provided, however, that, in the event
that, by reason of mandatory provisions of law, any of the attachment,
perfection or priority of the Administrative Agent's and the Secured Parties'
security interest in any Collateral is governed by the Uniform Commercial Code
as in effect in a jurisdiction other than the State of New York, the term
"UCC" shall mean the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such
attachment, perfection or priority and for purposes of definitions related to
such provisions.
"Unfunded Pension Liability" means, with respect to the
Borrower or any of its Subsidiaries at any time, the sum of (a) the amount, if
any, by which the present value of all accrued benefits under each Title IV
Plan (other than any Title IV Plan subject to Section 4063 of ERISA) exceeds
the fair market value of all assets of such Title IV Plan allocable to such
benefits in accordance with Title IV of ERISA, as determined as of the most
recent valuation date for such Title IV Plan using the actuarial assumptions
in effect under such Title IV Plan, (b) the aggregate amount of withdrawal
liability that could be assessed under Section 4063 with respect to each Title
IV Plan subject to such section, separately calculated for each such Title IV
Plan as of its most recent valuation date and (c) for a period of five years
following a transaction reasonably likely to be covered by Section 4069 of
ERISA, the liabilities (whether or not accrued) that could be avoided by the
Borrower, any of its Subsidiaries or any ERISA Affiliate as a result of such
transaction.
"Unused Commitment Fee" has the meaning specified in Section
2.12(a) (Fees).
"U.S. Trustee" means the United States Trustee for the
Southern District of Georgia.
"Vehicles" means all vehicles covered by a certificate of
title law of any state.
"Vendor Lien Program" means the program and documents
pursuant to which one or more vendors of the Loan Parties agreed to defer the
payment of trade accounts payable owing by the Loan Parties for merchandise
purchased or memo goods sold prior to July 31, 2004 and past due as of such
date, as such program may now or hereafter be amended, supplemented or
otherwise modified to the extent expressly permitted by this Agreement.
"Voting Stock" means Stock of any Person having ordinary
power to vote in the election of members of the board of directors, managers,
trustees or other controlling Persons, of such Person (irrespective of
whether, at the time, Stock of any other class or classes of such entity shall
have or might have voting power by reason of the happening of any
contingency).
"Wholly-Owned Subsidiary" of any Person means any Subsidiary
of such Person, all of the Stock of which (other than director's qualifying
shares, as may be required by law) is owned by such Person, either directly or
indirectly through one or more Wholly-Owned Subsidiaries of such Person.
"Withdrawal Liability" means, with respect to the Borrower
or any of its Subsidiaries at any time, the aggregate liability incurred
(whether or not assessed) with respect to all Multiemployer Plans pursuant to
Section 4201 of ERISA or for increases in contributions required to be made
pursuant to Section 4243 of ERISA.
SECTION 1.2. COMPUTATION OF TIME PERIODS. In this Agreement,
in the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words "to"
and "until" each mean "to but excluding" and the word "through" means "to and
including."
SECTION 1.3. ACCOUNTING TERMS AND PRINCIPLES.
(a) Except as set forth below, all accounting terms not
specifically defined herein shall be construed in conformity with GAAP and all
accounting determinations required to be made pursuant hereto (including for
purposes of measuring compliance with Article V (Financial Covenants) shall,
unless expressly otherwise provided herein, be made in conformity with GAAP.
(b) If any change in the accounting principles used in the
preparation of the most recent Financial Statements referred to in Section 6.1
(Financial Statements) is hereafter required or permitted by the rules,
regulations, pronouncements and opinions of the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants (or any
successors thereto) or is required in connection with the resolution of the
Borrower's outstanding accounting issues, and any such change is adopted by
the Borrower with the agreement of the Borrower's Accountants and results in a
change in any of the calculations required by Article V or Article VIII that
would not have resulted had such accounting change not occurred, the parties
hereto agree to enter into negotiations in order to amend such provisions so
as to equitably reflect such change such that the criteria for evaluating
compliance with such covenants by the Borrower shall be the same after such
change as if such change had not been made; provided, however, that no such
change that would affect a calculation that measures compliance with any
covenant contained in Article V or Article VIII shall be given effect until
such provisions are amended to reflect such changes.
(c) For purposes of making all financial calculations to
determine compliance with Article V (Financial Covenants), all components of
such calculations shall be adjusted to include or exclude, as the case may be,
without duplication, such components of such calculations attributable to any
business that have been acquired by the Borrower or any of its Subsidiaries
after the first day of the applicable period of determination and prior to the
end of such period, as determined in good faith by the Borrower on a Pro Forma
Basis.
SECTION 1.4. CERTAIN TERMS.
(a) The terms "herein," "hereof", "hereto" and "hereunder"
and similar terms refer to this Agreement as a whole and not to any particular
Article, Section, subsection or clause in this Agreement.
(b) Unless otherwise expressly indicated herein, (i)
references in this Agreement to an Exhibit, Schedule, Article, Section, clause
or sub-clause refer to the appropriate Exhibit or Schedule to, or Article,
Section, clause or sub-clause in this Agreement and (ii) the words "above" and
"below", when following a reference to a clause or a sub-clause of any Loan
Document, refer to a clause or sub-clause within, respectively, the same
Section or clause.
(c) Each agreement defined in this Article I shall include
all appendices, exhibits and schedules thereto. Unless the prior written
consent of the Requisite Lenders is required hereunder for an amendment,
restatement, supplement or other modification to any such agreement and such
consent is not obtained, references in this Agreement to such agreement shall
be to such agreement as so amended, restated, supplemented or modified.
(d) References in this Agreement to any statute shall be to
such statute as amended or modified from time to time and to any successor
legislation thereto, in each case as in effect at the time any such reference
is operative.
(e) The term "including" when used in any Loan Document
means "including without limitation" except when used in the computation of
time periods.
(f) The terms "Lender," "Issuer" and "Administrative Agent"
include without limitation, their respective successors.
(g) Upon the appointment of any successor Administrative
Agent pursuant to Section 12.6, references to Citicorp in Section 12.3 and to
Citibank in the definitions of Base Rate, Dollar Equivalent and Eurodollar
Rate shall be deemed to refer to the financial institution then acting as the
Administrative Agent or one of its Affiliates if it so designates.
(h) Terms not otherwise defined herein and defined in the
UCC are used herein with the meanings specified in the UCC.
ARTICLE II
THE FACILITIES
SECTION 2.1. THE COMMITMENTS.
(a) Revolving Credit Commitments. On the terms and subject
to the conditions contained in this Agreement, each Revolving Credit Lender
severally agrees to make loans in Dollars (each, together with each "Revolving
Loan" as defined in and made under the Original DIP Credit Agreement, a
"Revolving Loan") to the Borrower from time to time on any Business Day during
the period from the Initial Closing Date until the Revolving Credit
Termination Date in an aggregate principal amount at any time outstanding for
all such loans by such Revolving Credit Lender not to exceed (after giving
effect to the use of the proceeds of such loans) such Revolving Credit
Lender's Revolving Credit Commitment; provided, however, that at no time shall
any Revolving Credit Lender be obligated to make a Revolving Loan in excess of
such Revolving Credit Lender's Ratable Portion of the Available Credit. Within
the limits of the Revolving Credit Commitment of each Revolving Credit Lender,
amounts of Revolving Loans repaid may be reborrowed under this Section 2.1.
Upon the Effective Date, the Revolving Credit Commitments of the Revolving
Credit Lenders shall be permanently and ratably reduced, by an aggregate
amount equal to the aggregate Term Loan Commitment, to the respective amounts
set forth on Schedule I.
(b) Term Loan Commitments; Original Issue Discount. On the
terms and subject to the conditions contained in this Agreement, each Term
Loan Lender severally agrees to make a loan (each, a "Term Loan") in Dollars
to the Borrower on the Effective Date, in an amount not to exceed such
Lender's Term Loan Commitment. The Term Loans shall be funded by the Term Loan
Lenders to the Administrative Agent for the account of the Borrower (as set
forth in Section 2.2) at an aggregate $500,000 discount; accordingly, the
aggregate amount funded by the Term Loan Lenders on the Effective Date shall
equal $25,000,000 and the stated aggregate principal face amount of the Term
Loans on the Effective Date for all purposes of this Agreement and the other
Loan Documents (including the calculation of interest and fees on, and the
obligation to repay, the principal amount of the Term Loans) shall be deemed
to equal $25,500,000. Amounts of Term Loans repaid may not be reborrowed.
SECTION 2.2. BORROWING PROCEDURES.
(a) Each Borrowing shall be made on notice given by the
Borrower to the Administrative Agent not later than 12:00 noon (New York time)
(i) on the Business Day of the proposed Borrowing, in the case of a Borrowing
of Base Rate Loans, and (ii) three Business Days prior to the date of the
proposed Borrowing, in the case of a Borrowing of Eurodollar Rate Loans. Each
such notice shall be in substantially the form of Exhibit C (a "Notice of
Borrowing"), specifying (A) the date of such proposed Borrowing (which, in the
case of the Term Loan Borrowing, shall be the Effective Date), (B) the
aggregate amount of such proposed Borrowing, (C) whether any portion of the
proposed Borrowing will be of Base Rate Loans or Eurodollar Rate Loans, (D)
the initial Interest Period or Periods for any such Eurodollar Rate Loans and
(E) with respect to Revolving Credit Borrowings, the Available Credit (after
giving effect to the proposed Borrowing). Loans shall be made as Base Rate
Loans unless, subject to Section 2.14, the Notice of Borrowing specifies that
all or a portion thereof shall be Eurodollar Rate Loans. Notwithstanding
anything to the contrary contained in Section 2.3(a) (Swing Loans), if any
Notice of Borrowing requests a Revolving Credit Borrowing of Base Rate Loans,
the Administrative Agent may make a Swing Loan available to the Borrower in an
aggregate amount not to exceed such proposed Borrowing, and the aggregate
amount of the corresponding proposed Borrowing shall be reduced accordingly by
the principal amount of such Swing Loan. Each Borrowing shall be in an
aggregate amount of not less than $500,000 or an integral multiple of $500,000
in excess thereof.
(b) The Administrative Agent shall give to each Lender
prompt notice of the Administrative Agent's receipt of a Notice of Borrowing
and, if Eurodollar Rate Loans are properly requested in such Notice of
Borrowing, the applicable interest rate determined pursuant to Section
2.14(a). Each Lender shall, before 3:00 p.m. (New York time), in the case of a
Base Rate Loan, and 12:00 noon (New York time), in the case of a Eurodollar
Rate Loan, on the date of the proposed Borrowing, make available to the
Administrative Agent at its address referred to in Section 13.8, in
immediately available funds, such Lender's Ratable Portion of such proposed
Borrowing. Upon fulfillment (or due waiver in accordance with Section 13.1
(Amendments, Waivers, Etc.)) (i) on the Effective Date, of the applicable
conditions set forth in Section 3.1 (Conditions Precedent to the Effective
Date), and (ii) at any time (including the Effective Date), of the applicable
conditions set forth in Section 3.2 (Conditions Precedent to Each Loan and
Letter of Credit), and after the Administrative Agent's receipt of such funds,
the Administrative Agent shall make such funds available to the Borrower.
(c) Unless the Administrative Agent shall have received
notice from a Lender prior to the date of any proposed Borrowing that such
Lender will not make available to the Administrative Agent such Lender's
Ratable Portion of such Borrowing (or any portion thereof), the Administrative
Agent may assume that such Lender has made such Ratable Portion available to
the Administrative Agent on the date of such Borrowing in accordance with this
Section 2.2 and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not have so made such
Ratable Portion available to the Administrative Agent, such Lender and the
Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date
such amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, the interest rate applicable at the time to the Loans comprising
such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate for
the first Business Day and thereafter at the interest rate applicable at the
time to the Loans comprising such Borrowing. If such Lender shall repay to the
Administrative Agent such corresponding amount, such corresponding amount so
repaid shall constitute such Lender's Loan as part of such Borrowing for
purposes of this Agreement. If the Borrower shall repay to the Administrative
Agent such corresponding amount, such payment shall not relieve such Lender of
any obligation it may have hereunder to the Borrower.
(d) The failure of any Lender to make on the date specified
any Loan or any payment required by it (such Lender being a "Non-Funding
Lender"), including any payment in respect of its participation in Swing Loans
and Letter of Credit Obligations, shall not relieve any other Lender of its
obligations to make such Loan or payment on such date but no such other Lender
shall be responsible for the failure of any Non-Funding Lender to make a Loan
or payment required under this Agreement.
SECTION 2.3. SWING LOANS.
(a) On the terms and subject to the conditions contained in
this Agreement, the Swing Loan Lender may in its sole discretion, make, in
Dollars, loans (each, together with each "Swing Loan" as defined in and made
under the Original DIP Credit Agreement, a "Swing Loan") otherwise available
to the Borrower under the Revolving Credit Facility (but only as requested by
the Borrower) from time to time on any Business Day during the period from the
Initial Closing Date until the Revolving Credit Termination Date in an
aggregate principal amount at any time outstanding (together with the
aggregate outstanding principal amount of any other Loan made by the Swing
Loan Lender hereunder in its capacity as a Lender or the Swing Loan Lender)
not to exceed the lesser of the (i) the Swing Loan Lender's Ratable Portion of
the Available Credit and (ii) the Swing Loan Sublimit; provided, however, that
at no time shall the Swing Loan Lender make any Swing Loan to the extent that,
after giving effect to such Swing Loan, the aggregate Revolving Credit
Outstandings would exceed the Maximum Credit. Each Swing Loan shall be a Base
Rate Loan and must be repaid in full within seven days after its making or, if
sooner, upon any Revolving Credit Borrowing hereunder and shall in any event
mature no later than the Revolving Credit Termination Date. Within the limits
set forth in the first sentence of this clause (a), amounts of Swing Loans
repaid may be reborrowed under this clause (a). Swing Loans are not subject to
a minimum borrowing amount.
(b) In order to request a Swing Loan, the Borrower shall
telecopy (or forward by electronic mail or similar means) to the
Administrative Agent a duly completed request in substantially the form of
Exhibit D hereto, setting forth the requested amount and date of such Swing
Loan (a "Swing Loan Request"), to be received by the Administrative Agent not
later than 2:00 p.m. (New York time) on the day of the proposed borrowing. The
Administrative Agent shall promptly notify the Swing Loan Lender of the
details of the requested Swing Loan. Subject to the terms of this Agreement,
the Swing Loan Lender may make a Swing Loan available to the Administrative
Agent and, in turn, the Administrative Agent shall make such amounts available
to the Borrower on the date of the relevant Swing Loan Request. The Swing Loan
Lender shall not make any Swing Loan in the period commencing on the first
Business Day after it receives written notice from the Administrative Agent or
any Revolving Credit Lender that one or more of the conditions precedent
contained in Section 3.2 shall not on such date be satisfied, and ending when
such conditions are satisfied. The Swing Loan Lender shall not otherwise be
required to determine that, or take notice whether, the conditions precedent
set forth in Section 3.2 hereof have been satisfied in connection with the
making of any Swing Loan.
(c) The Swing Loan Lender shall notify the Administrative
Agent in writing (which writing may be a telecopy or electronic mail) weekly,
by no later than 10:00 a.m. (New York time) on the first Business Day of each
week, of the aggregate principal amount of its Swing Loans then outstanding.
(d) The Swing Loan Lender may demand at any time that each
Revolving Credit Lender pay to the Administrative Agent, for the account of
the Swing Loan Lender, in the manner provided in clause (e) below, such
Revolving Credit Lender's Ratable Portion of all or a portion of the
outstanding Swing Loans, which demand shall be made through the Administrative
Agent, shall be in writing and shall specify the outstanding principal amount
of Swing Loans demanded to be paid.
(e) The Administrative Agent shall forward each notice
referred to in clause (c) above and each demand referred to in clause (d)
above to each Revolving Credit Lender on the day such notice or such demand is
received by the Administrative Agent (except that any such notice or demand
received by the Administrative Agent after 2:00 p.m. (New York time) on any
Business Day or any such demand received on a day that is not a Business Day
shall not be required to be forwarded to the Revolving Credit Lenders by the
Administrative Agent until the next succeeding Business Day), together with a
statement prepared by the Administrative Agent specifying the amount of each
Revolving Credit Lender's Ratable Portion of the aggregate principal amount of
the Swing Loans stated to be outstanding in such notice or demanded to be paid
pursuant to such demand, and, notwithstanding whether or not the conditions
precedent set forth in Sections 2.1 and 3.2 shall have been satisfied (which
conditions precedent the Revolving Credit Lenders hereby irrevocably waive),
each Revolving Credit Lender shall, before 11:00 a.m. (New York time) on the
Business Day next succeeding the date of such Revolving Credit Lender's
receipt of such notice or demand, make available to the Administrative Agent,
in immediately available funds, for the account of the Swing Loan Lender, the
amount specified in such statement. Upon such payment by a Revolving Credit
Lender, such Revolving Credit Lender shall, except as provided in clause (f)
below, be deemed to have made a Revolving Loan to the Borrower. The
Administrative Agent shall use such funds to repay the Swing Loans to the
Swing Loan Lender. To the extent that any Revolving Credit Lender fails to
make such payment available to the Administrative Agent for the account of the
Swing Loan Lender, the Borrower shall repay such Swing Loan on demand.
(f) Upon the occurrence of any Default, each Revolving
Credit Lender shall acquire, without recourse or warranty, an undivided
participation in each Swing Loan otherwise required to be repaid by such
Revolving Credit Lender pursuant to clause (e) above, which participation
shall be in a principal amount equal to such Revolving Credit Lender's Ratable
Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on
which such Revolving Credit Lender would otherwise have been required to make
a payment in respect of such Swing Loan pursuant to clause (e) above, in
immediately available funds, an amount equal to such Revolving Credit Lender's
Ratable Portion of such Swing Loan. If all or part of such amount is not in
fact made available by such Revolving Credit Lender to the Swing Loan Lender
on such date, the Swing Loan Lender shall be entitled to recover any such
unpaid amount on demand from such Revolving Credit Lender together with
interest accrued from such date at the Federal Funds Rate for the first
Business Day after such payment was due and thereafter at the rate of interest
then applicable to Base Rate Loans.
(g) From and after the date on which any Revolving Credit
Lender (i) is deemed to have made a Revolving Loan pursuant to clause (e)
above with respect to any Swing Loan or (ii) purchases an undivided
participation in a Swing Loan pursuant to clause (f) above, the Swing Loan
Lender shall promptly distribute to such Revolving Credit Lender such
Revolving Credit Lender's Ratable Portion of all payments of principal of and
interest received by the Swing Loan Lender on account of such Swing Loan other
than those received from a Revolving Credit Lender pursuant to clause (e) or
(f) above.
SECTION 2.4. LETTERS OF CREDIT.
(a) On the terms and subject to the conditions contained in
this Agreement, each Issuer agrees to Issue at the request of the Borrower and
for the account of the Borrower one or more Letters of Credit from time to
time on any Business Day during the period commencing on the Initial Closing
Date and ending on the earlier of the Revolving Credit Termination Date and 30
days prior to the Scheduled Termination Date; provided, however, that no
Issuer shall be under any obligation to Issue (and, upon the occurrence of any
of the events described in clauses (ii), (iii), (iv), (v) and (vi)(A) below,
shall not Issue) any Letter of Credit upon the occurrence of any of the
following:
(i) any order, judgment or decree of any
Governmental Authority or arbitrator shall purport by its terms to
enjoin or restrain such Issuer from Issuing such Letter of Credit or
any Requirement of Law applicable to such Issuer or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over such Issuer shall
prohibit, or request that such Issuer refrain from, the Issuance of
letters of credit generally or such Letter of Credit in particular or
shall impose upon such Issuer with respect to such Letter of Credit
any restriction or reserve or capital requirement (for which such
Issuer is not otherwise compensated) not in effect on the date of
this Agreement or result in any unreimbursed loss, cost or expense
that was not applicable, in effect or known to such Issuer as of the
date of this Agreement and that such Issuer in good ▇▇▇▇▇ ▇▇▇▇▇
material to it;
(ii) such Issuer shall have received any written
notice of the type described in clause (d) below;
(iii) after giving effect to the Issuance of such
Letter of Credit, the aggregate Revolving Credit Outstandings would
exceed the Maximum Credit at such time;
(iv) after giving effect to the Issuance of such Letter of Credit, the sum
of (i) the Letter of Credit Undrawn Amounts at such time and (ii) the
Reimbursement Obligations at such time exceeds the Letter of Credit
Sublimit; or
(v) such Letter of Credit is requested to be
denominated in any currency other than Dollars; or
(vi) (A) any fees due in connection with a
requested Issuance have not been paid, (B) such Letter of Credit is
requested to be Issued in a form that is not reasonably acceptable to
such Issuer or (C) the Issuer for such Letter of Credit shall not
have received, in form and substance reasonably acceptable to it and,
if applicable, duly executed by such Borrower, applications,
agreements and other documentation (collectively, a "Letter of Credit
Reimbursement Agreement") such Issuer generally employs in the
ordinary course of its business for the Issuance of letters of credit
of the type of such Letter of Credit.
None of the Revolving Credit Lenders (other than the Issuers in their capacity
as such) shall have any obligation to Issue any Letter of Credit.
(b) In no event shall the expiration date of any Letter of
Credit (i) be more than one year after the date of issuance thereof, or (ii)
unless cash collateralized in the manner set forth in Section 9.3 in an amount
equal to 105% of the Letter of Credit Obligations for such Letter of Credit on
the date of Issuance thereof and at all times thereafter while such Letter of
Credit is outstanding, be less than seven days prior to the Scheduled
Termination Date; provided, however, that any Letter of Credit with a term
less than or equal to one year may provide for the renewal thereof for
additional periods less than or equal to one year, as long as, (x) on or
before the expiration of each such term and each such period, the Borrower and
the Issuer of such Letter or Credit shall have the option to prevent such
renewal and (y) the Borrower shall not permit any such renewal to extend the
expiration date of any Letter beyond the date set forth in clause (ii) above.
(c) In connection with the Issuance of each Letter of
Credit, the Borrower shall give the relevant Issuer and the Administrative
Agent at least two Business Days' prior written notice, in substantially the
form of Exhibit E (or in such other written or electronic form as is
acceptable to the Issuer), of the requested Issuance of such Letter of Credit
(a "Letter of Credit Request"). Such notice shall be irrevocable and shall
specify the Issuer of such Letter of Credit, the face amount of the Letter of
Credit requested, which face amount shall not be less than $100,000, the date
of Issuance of such requested Letter of Credit, the date on which such Letter
of Credit is to expire (which date shall be a Business Day), and, in the case
of an Issuance, the Person for whose benefit the requested Letter of Credit is
to be issued. Such notice, to be effective, must be received by the relevant
Issuer and the Administrative Agent not later than 11:00 a.m. (New York time)
on the second Business Day prior to the requested Issuance of such Letter of
Credit.
(d) Subject to the satisfaction of the conditions set forth
in this Section 2.4, the relevant Issuer shall, on the requested date, Issue a
Letter of Credit on behalf of the Borrower in accordance with such Issuer's
usual and customary business practices. No Issuer shall Issue any Letter of
Credit in the period commencing on the first Business Day after it receives
written notice from any Revolving Credit Lender that one or more of the
conditions precedent contained in Section 3.2 (Conditions Precedent to Each
Loan and Letter of Credit) or clause (a) above (other than those conditions
set forth in clauses (a)(i), (a)(vi)(B) and (C) above and, to the extent such
clause relates to fees owing to the Issuer of such Letter of Credit and its
Affiliates, clause (a)(vi)(A) above) are not on such date satisfied or duly
waived and ending when such conditions are satisfied or duly waived. No Issuer
shall otherwise be required to determine that, or take notice whether, the
conditions precedent set forth in Section 3.2 (Conditions Precedent to Each
Loan and Letter of Credit) have been satisfied in connection with the Issuance
of any Letter of Credit.
(e) The Borrower agrees that, if requested by the Issuer of
any Letter of Credit, it shall execute a Letter of Credit Reimbursement
Agreement in respect of any Letter of Credit Issued hereunder. In the event of
any conflict between the terms of any Letter of Credit Reimbursement Agreement
and this Agreement, the terms of this Agreement shall govern.
(f) Each Issuer shall comply with the following:
(i) give the Administrative Agent written notice
(or telephonic notice confirmed promptly thereafter in writing),
which writing may be a telecopy or electronic mail, of the Issuance
of any Letter of Credit Issued by it, of all drawings under any
Letter of Credit Issued by it and of the payment (or the failure to
pay when due) by the Borrower of any Reimbursement Obligation when
due (which notice the Administrative Agent shall promptly transmit by
telecopy, electronic mail or similar transmission to each Revolving
Credit Lender);
(ii) upon the request of any Revolving Credit
Lender, furnish to such Revolving Credit Lender copies of any Letter
of Credit Reimbursement Agreement to which such Issuer is a party and
such other documentation as may reasonably be requested by such
Revolving Credit Lender; and
(iii) no later than 10 Business Days following the
last day of each calendar month, provide to the Administrative Agent
(and the Administrative Agent shall provide a copy to each Revolving
Credit Lender requesting the same) and the Borrower separate
schedules for Documentary Letters of Credit and Standby Letters of
Credit issued by it, in form and substance reasonably satisfactory to
the Administrative Agent, setting forth the aggregate Letter of
Credit Obligations, in each case outstanding at the end of each
month, and any information requested by the Borrower or the
Administrative Agent relating thereto.
(g) Immediately upon the Issuance by an Issuer of a Letter
of Credit in accordance with the terms and conditions of this Agreement, such
Issuer shall be deemed to have sold and transferred to each Revolving Credit
Lender, and each Revolving Credit Lender shall be deemed irrevocably and
unconditionally to have purchased and received from such Issuer, without
recourse or warranty, an undivided interest and participation, to the extent
of such Revolving Credit Lender's Ratable Portion of the Revolving Credit
Commitments, in such Letter of Credit and the obligations of the Borrower with
respect thereto (including all Letter of Credit Obligations with respect
thereto) and any security therefor and guaranty pertaining thereto.
(h) The Borrower agrees to pay to the Issuer of any Letter
of Credit the amount of all Reimbursement Obligations owing to such Issuer
under any Letter of Credit issued for its account no later than the date that
is the next succeeding Business Day after the Borrower receives written notice
from such Issuer that payment has been made under such Letter of Credit (the
"Reimbursement Date"), irrespective of any claim, set-off, defense or other
right that the Borrower may have at any time against such Issuer or any other
Person. In the event that any Issuer makes any payment under any Letter of
Credit and the Borrower shall not have repaid such amount to such Issuer
pursuant to this clause (h) or any such payment by the Borrower is rescinded
or set aside for any reason, such Reimbursement Obligation shall be payable on
demand with interest thereon computed (i) from the date on which such
Reimbursement Obligation arose to the Reimbursement Date, at the rate of
interest applicable during such period to Revolving Loans that are Base Rate
Loans and (ii) from the Reimbursement Date until the date of repayment in
full, at the rate of interest applicable during such period to past due
Revolving Loans that are Base Rate Loans, and such Issuer shall promptly
notify the Administrative Agent, which shall promptly notify each Revolving
Credit Lender of such failure, and each Revolving Credit Lender shall promptly
and unconditionally pay to the Administrative Agent for the account of such
Issuer the amount of such Revolving Credit Lender's Ratable Portion of such
payment in Dollars and in immediately available funds. If the Administrative
Agent so notifies such Revolving Credit Lender prior to 11:00 a.m. (New York
time) on any Business Day, such Revolving Credit Lender shall make available
to the Administrative Agent for the account of such Issuer its Ratable Portion
of the amount of such payment on such Business Day in immediately available
funds. Upon such payment by a Revolving Credit Lender, such Revolving Credit
Lender shall, notwithstanding whether or not the conditions precedent set
forth in Section 3.2 shall have been satisfied (which conditions precedent the
Revolving Credit Lenders hereby irrevocably waive), be deemed to have made a
Revolving Loan to the Borrower in the principal amount of such payment.
Whenever any Issuer receives from the Borrower a payment of a Reimbursement
Obligation as to which the Administrative Agent has received for the account
of such Issuer any payment from a Revolving Credit Lender pursuant to this
clause (h), such Issuer shall pay over to the Administrative Agent any amount
received in excess of such Reimbursement Obligation and, upon receipt of such
amount, the Administrative Agent shall promptly pay over to each Revolving
Credit Lender, in immediately available funds, an amount equal to such
Revolving Credit Lender's Ratable Portion of the amount of such payment
adjusted, if necessary, to reflect the respective amounts the Revolving Credit
Lenders have paid in respect of such Reimbursement Obligation.
(i) If and to the extent such Revolving Credit Lender shall
not have so made its Ratable Portion of the amount of the payment required by
clause (h) above available to the Administrative Agent for the account of such
Issuer, such Revolving Credit Lender agrees to pay to the Administrative Agent
for the account of such Issuer forthwith on demand any such unpaid amount
together with interest thereon, for the first Business Day after payment was
first due at the Federal Funds Rate and, thereafter, until such amount is
repaid to the Administrative Agent for the account of such Issuer, at a rate
per annum equal to the rate applicable to Base Rate Loans under the Revolving
Credit Facility.
(j) The Borrower's obligation to pay each Reimbursement
Obligation and the obligations of the Revolving Credit Lenders to make
payments to the Administrative Agent for the account of the Issuers with
respect to Letters of Credit shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of this
Agreement, under any and all circumstances whatsoever, including the
occurrence of any Default or Event of Default, and irrespective of any of the
following:
(i) any lack of validity or enforceability of any Letter
of Credit or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to
departure from all or any of the provisions of any Letter of Credit
or any Loan Document;
(iii) the existence of any claim, set off, defense or
other right that the Borrower, any other party guaranteeing, or
otherwise obligated with, the Borrower, any Subsidiary or other
Affiliate thereof or any other Person may at any time have against
the beneficiary under any Letter of Credit, any Issuer, the
Administrative Agent or any Lender or any other Person, whether in
connection with this Agreement, any other Loan Document or any other
related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter
of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in
any respect;
(v) payment by the Issuer under a Letter of Credit
against presentation of a draft or other document that does not
comply with the terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any
kind of the Issuer, the Lenders, the Administrative Agent or any
other Person or any other event or circumstance whatsoever, whether
or not similar to any of the foregoing, that might, but for the
provisions of this Section 2.4, constitute a legal or equitable
discharge of the Borrower's obligations hereunder.
Any action taken or omitted to be taken by the relevant Issuer under or in
connection with any Letter of Credit, if taken or omitted in the absence of
gross negligence or willful misconduct, shall not result in any liability of
such Issuer to the Borrower or any Lender. In determining whether drafts and
other documents presented under a Letter of Credit comply with the terms
thereof, the Issuer may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any
notice or information to the contrary and, in making any payment under any
Letter of Credit, the Issuer may rely exclusively on the documents presented
to it under such Letter of Credit as to any and all matters set forth therein,
including reliance on the amount of any draft presented under such Letter of
Credit, whether or not the amount due to the beneficiary thereunder equals the
amount of such draft and whether or not any document presented pursuant to
such Letter of Credit proves to be insufficient in any respect, if such
document on its face appears to be in order, and whether or not any other
statement or any other document presented pursuant to such Letter of Credit
proves to be forged or invalid or any statement therein proves to be
inaccurate or untrue in any respect whatsoever and any noncompliance in any
immaterial respect of the documents presented under such Letter of Credit with
the terms thereof shall, in each case, be deemed not to constitute willful
misconduct or gross negligence of the Issuer.
SECTION 2.5. REDUCTION AND TERMINATION OF THE COMMITMENTS.
The Borrower may, upon at least three Business Days' prior
notice to the Administrative Agent, terminate in whole or reduce in part
ratably the unused portions of the respective Revolving Credit Commitments of
the Revolving Credit Lenders; provided, however, that each partial reduction
shall be in an aggregate amount of not less than $5,000,000 or an integral
multiple of $1,000,000 in excess thereof. Any undrawn Term Loan Commitment
shall terminate on the Effective Date.
SECTION 2.6. REPAYMENT OF LOANS.
(a) The Borrower promises to repay the entire unpaid
principal amount of the Revolving Loans and the Swing Loans on the Revolving
Credit Termination Date.
(b) The Term Loans shall mature on the Term Loan Maturity
Date. Except in connection with a conversion of the Term Loans to New Common
Equity pursuant to Section 2.19, the Borrower promises to repay the entire
unpaid principal amount of the Term Loans, together with the Applicable Term
Loan Repayment Fee, on the Term Loan Maturity Date, but subject to the prior
Discharge of the Revolving Credit Obligations.
SECTION 2.7. EVIDENCE OF DEBT.
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing Indebtedness of the Borrower 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.
(b) The Administrative Agent shall maintain accounts in
accordance with its usual practice in which it shall record (i) the amount of
each Loan made and, if a Eurodollar Rate Loan, the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable by the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder from the Borrower, whether such sum
constitutes principal or interest (and the type of Loan to which it applies),
fees, expenses or other amounts due under the Loan Documents and each Lender's
share thereof, if applicable.
(c) The entries made in the accounts maintained pursuant to
clauses (a) and (b) above shall, to the extent permitted by applicable law, be
prima facie evidence of the existence and amounts of the obligations recorded
therein; provided, however, that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not
in any manner affect the obligations of the Borrower to repay the Loans in
accordance with their terms.
(d) Notwithstanding any other provision of the Agreement, in
the event that any Lender requests that the Borrower execute and deliver a
promissory note or notes payable to such Lender in order to evidence the
Indebtedness owing to such Lender by the Borrower hereunder, the Borrower
shall promptly execute and deliver a Note or Notes to such Lender evidencing
any Revolving Loans and Term Loans, as the case may be, of such Lender,
substantially in the forms of Exhibit B-1 or Exhibit B-2, respectively.
SECTION 2.8. OPTIONAL PREPAYMENTS. The Borrower may prepay
the outstanding principal amount of the Revolving Loans and Swing Loans in
whole or in part at any time; provided, however, that if any prepayment of any
Eurodollar Rate Loan is made by the Borrower other than on the last day of an
Interest Period for such Loan, the Borrower shall also pay any amount owing
pursuant to Section 2.14.
SECTION 2.9. MANDATORY PREPAYMENTS.
(a) Upon receipt by the Borrower or any of its Subsidiaries
of Net Cash Proceeds arising from an Asset Sale, Property Loss Event, Debt
Issuance, Equity Issuance, Commercial Tort Claim or Avoidance Action, the
Borrower shall within one Business Day (or, in the case of Asset Sales, within
three Business Days) of receipt of such Net Cash Proceeds prepay the Loans
(and as applicable pursuant to clause (b) below, provide cash collateral in
respect of Letters of Credit) in an amount equal to 100% of such Net Cash
Proceeds; provided, that prepayments of the Term Loans shall only be required
with Net Cash Proceeds of a Prepayment 363 Sale. Any such mandatory prepayment
shall be applied in accordance with clause (b) below; provided, however, that,
in the case of any Net Cash Proceeds arising from a Reinvestment Event, the
Borrower shall (i) immediately upon receipt of such Net Cash Proceeds, at the
Borrower's option, deposit 100% of such Net Cash Proceeds in a Cash Collateral
Account or prepay the Loans (or provide cash collateral in respect of Letters
of Credit), which prepayment shall be applied as provided in clause (b) below,
in an amount equal to 100% of such Net Cash Proceeds and (ii) prepay the Loans
(or provide cash collateral in respect of Letters of Credit), which prepayment
shall be applied as provided in clause (b) below, in an amount equal to the
Reinvestment Prepayment Amount applicable to such Reinvestment Event, if any,
on the Reinvestment Prepayment Date with respect to such Reinvestment Event.
(b) Subject to the provisions of Section 2.13(g), any
prepayments made by the Borrower required to be applied in accordance with
this clause (b) shall be applied as follows: first, to repay the outstanding
principal balance of the Swing Loans until such Swing Loans shall have been
repaid in full; second, to repay the outstanding principal balance of the
Revolving Loans until such Revolving Loans shall have been paid in full
together with, in the case of a Prepayment 363 Sale, a corresponding permanent
reduction of the Revolving Credit Commitments in the amount of such prepayment
(or deemed prepayment); third, in the case of a Prepayment 363 Sale or if a
Default or Event of Default has occurred and is continuing and only for so
long as the same is in effect, to provide cash collateral for any Letter of
Credit Obligations in an amount equal to 105% of such Letter of Credit
Obligations in the manner set forth in Section 9.3 until all such Letter of
Credit Obligations have been fully cash collateralized in the manner set forth
therein; and fourth, if the Discharge of Revolving Credit Obligations has
occurred, subject to the rights of the Term Loan Lenders under Section 2.19,
with respect to Net Cash Proceeds from a Prepayment 363 Sale only, to prepay
the outstanding principal balance of the Term Loans until such Term Loans
shall have been paid in full; provided, that if such Prepayment 363 Sale is a
Core 363 Sale, such prepayment shall be made together with a premium in an
amount equal to the Applicable Term Loan Repayment Fee; provided, further,
that any Term Loan Lender may elect to waive its right to receive any
prepayment owing pursuant to this Section 2.9(b) (other than with respect to a
Core 363 Sale) and, if any Term Loan Lender so elects, the amounts otherwise
prepayable to such Term Loan Lender shall instead be retained by the Borrower.
Except as otherwise expressly provided in this clause (b), no repayments of
Revolving Loans and Swing Loans or cash collateralization of Letters of Credit
required to be made pursuant to this Section 2.9 (including in the case of Net
Cash Proceeds arising from a Reinvestment Event, the application of such
proceeds to the Revolving Loans and Swing Loans pending reinvestment thereof
by the applicable Loan Party) shall result in a reduction of the Revolving
Credit Commitments.
(c) If at any time, the aggregate principal amount of
Revolving Credit Outstandings exceeds the aggregate Maximum Credit at such
time, the Borrower shall forthwith prepay the Swing Loans first and then the
Revolving Loans then outstanding in an amount equal to such excess. If any
such excess remains after repayment in full of the aggregate outstanding Swing
Loans and Revolving Loans, the Borrower shall provide cash collateral for the
Letter of Credit Obligations in the manner set forth in Section 9.3 in an
amount equal to 105% of such excess, such cash collateral to be released to
the extent the Revolving Credit Outstandings thereafter no longer exceed the
Maximum Credit.
(d) The Borrower hereby irrevocably waives the right to
direct the application of all funds in the Cash Concentration Account or any
other Cash Collateral Account (other than an amount equal to any proceeds
arising from a Reinvestment Event that are held in a Cash Collateral Account
pending application of such proceeds as specified in a Reinvestment Notice) so
long as the Administrative Agent applies such funds in accordance with this
Agreement and agrees that the Administrative Agent shall, except as provided
in Section 2.13(g) (Payments and Computations) and clause (b) above, apply all
available funds in the Cash Concentration Account or any other Cash Collateral
Account on a daily basis and, prior to the establishment of the cash
management provisions set forth in Section 7.12 (but subject to the proviso
set forth in Section 7.12(a)), the Borrower shall cause cleared cash in any
other deposit account of the Borrower or any Subsidiary Guarantor to be
applied on a daily basis, as follows: first, to repay the outstanding
principal amount of the Swing Loans until such Swing Loans have been repaid in
full; second, to repay the outstanding principal balance of the Revolving
Loans until such Revolving Loans shall have been repaid in full; and then to
any other Revolving Credit Obligation then due and payable. Any such repayment
of the Swing Loans and Revolving Loans shall not result in a corresponding
reduction of the Revolving Credit Commitments. The Administrative Agent agrees
so to apply such funds and the Borrower consents to such application. If (i)
following such application or (ii) after all Letters of Credit shall have
expired or be fully drawn and all Revolving Credit Commitments shall have been
terminated, there are no Swing Loans or Revolving Loans outstanding and no
other Revolving Credit Obligations that are then due and payable, then the
Administrative Agent shall cause any remaining funds in the Cash Concentration
Account or any other Cash Collateral Account to be paid at the written
direction of the Borrower (or, in the absence of such direction, to the
Borrower or another Person lawfully entitled thereto). Notwithstanding any of
the other provisions of this clause (d), so long as no Event of Default shall
have occurred and be continuing, if any prepayment of Revolving Loans is
required to be made under this clause (d) prior to the last day of the
Interest Period therefor, the Borrower may, in its sole discretion, deposit
the amount of any such prepayment otherwise required to be made thereunder
into a Cash Collateral Account until the last day of such Interest Period, at
which time the Administrative Agent shall be authorized (without any further
action by or notice to or from the Borrower or any other Loan Party) to apply
such amount to the prepayment of such Revolving Loans in accordance with this
clause (d). Upon the occurrence and during the continuance of any Event of
Default, the Administrative Agent shall also be authorized (without any
further action by or notice to or from the Borrower or any other Loan Party)
to apply such amount to the prepayment of such Revolving Loans in accordance
with this clause (d).
SECTION 2.10. INTEREST.
(a) Rate of Interest. All Loans and the outstanding amount
of all other Obligations shall bear interest, in the case of Loans, on the
unpaid principal amount thereof from the date such Loans are made and, in the
case of such other Obligations, from the date such other Obligations are due
and payable until, in all cases, paid in full, except as otherwise provided in
Section 2.10(c), as follows:
(i) if a Base Rate Loan, at a rate per annum equal to the
sum of (A) the Base Rate as in effect from time to time, and (B) the
Applicable Margin;
(ii) if a Eurodollar Rate Loan, at a rate per annum equal
to the sum of (A) the Eurodollar Rate determined for the applicable
Interest Period, and (B) the Applicable Margin in effect from time to
time during such Interest Period; and
(iii) if such other Obligations, at a rate per annum
equal to the sum of (A) the Base Rate as in effect from time to time,
and (B) the Applicable Margin for Revolving Loans that are Base Rate
Loans.
(b) Interest Payments. (i) Interest accrued on each Base
Rate Loan (other than Swing Loans) shall be payable in arrears (A) on the
first Business Day of each calendar quarter, commencing on the first such day
following the making of such Base Rate Loan, (B) in the case of Base Rate
Loans that are Term Loans, upon the payment or prepayment thereof in full or
in part and (C) if not previously paid in full, at maturity (whether by
acceleration or otherwise) of such Base Rate Loan; (ii) interest accrued on
Swing Loans shall be payable in arrears on the first Business Day of the
immediately succeeding calendar quarter; (iii) interest accrued on each
Eurodollar Rate Loan that is a Revolving Loan shall be payable in arrears (A)
on the last day of each Interest Period applicable to such Loan and if such
Interest Period has a duration of more than three months, on each date during
such Interest Period occurring every three months from the first day of such
Interest Period, (B) upon the payment or prepayment thereof in full or in
part, and (C) if not previously paid in full, at maturity (whether by
acceleration or otherwise) of such Revolving Loan; (iv) interest accrued on
each Eurodollar Rate Loan that is a Term Loan shall be payable in arrears (A)
on the last day of each Interest Period applicable to such Loan and if such
Interest Period has a duration of more than one month, on each date during
such Interest Period occurring every one month from the first day of such
Interest Period, (B) upon the payment or prepayment thereof in full or in
part, and (C) if not previously paid in full, at maturity (whether by
acceleration or otherwise) of such Term Loan; and (v) interest accrued on the
amount of all other Obligations shall be payable on demand from and after the
time such Obligation becomes due and payable (whether by acceleration or
otherwise).
(c) Default Interest. Notwithstanding the rates of interest
specified in Section 2.10(a) or elsewhere herein, effective immediately upon
the occurrence of an Event of Default, and for as long thereafter as such
Event of Default shall be continuing, the principal balance of all Loans and
the amount of all other Obligations then due and payable shall bear interest
at a rate that is two percent per annum in excess of the rate of interest
applicable to such Loans or other Obligations from time to time. Such interest
shall be payable on demand.
SECTION 2.11. CONVERSION/CONTINUATION OPTION.
(a) The Borrower may elect (i) at any time on any Business
Day to convert Base Rate Loans (other than Swing Loans) or any portion thereof
to Eurodollar Rate Loans, and (ii) at the end of any applicable Interest
Period, to convert Eurodollar Rate Loans or any portion thereof into Base Rate
Loans or to continue such Eurodollar Rate Loans or any portion thereof for an
additional Interest Period; provided, however, that the aggregate amount of
the Eurodollar Loans for each Interest Period must be in the amount of at
least $1,000,000 or an integral multiple of $500,000 in excess thereof. Each
conversion or continuation shall be allocated among the Loans of each Lender
in accordance with such Lender's Ratable Portion. Each such election shall be
in substantially the form of Exhibit G hereto (a "Notice of Conversion or
Continuation") and shall be made by giving the Administrative Agent at least
three Business Days' prior written notice specifying (A) the amount and type
of Loan being converted or continued, (B) in the case of a conversion to or a
continuation of Eurodollar Rate Loans, the applicable Interest Period, and (C)
in the case of a conversion, the date of such conversion.
(b) The Administrative Agent shall promptly notify each
Lender of its receipt of a Notice of Conversion or Continuation and of the
options selected therein. Notwithstanding the foregoing, no conversion in
whole or in part of Base Rate Loans to Eurodollar Rate Loans, and no
continuation in whole or in part of Eurodollar Rate Loans upon the expiration
of any applicable Interest Period, shall be permitted at any time at which (i)
an Event of Default shall have occurred and be continuing or (ii) the
continuation of, or conversion into, a Eurodollar Rate Loan would violate any
provision of Section 2.14. If, within the time period required under the terms
of this Section 2.11, the Administrative Agent does not receive a Notice of
Conversion or Continuation from the Borrower containing a permitted election
to continue any Eurodollar Rate Loans for an additional Interest Period or to
convert any such Loans, then, upon the expiration of the applicable Interest
Period, such Loans shall be automatically converted to Base Rate Loans. Each
Notice of Conversion or Continuation shall be irrevocable.
SECTION 2.12. FEES.
(a) Unused Commitment Fee. The Borrower agrees to pay in
immediately available Dollars to each Revolving Credit Lender a commitment fee
on the actual daily amount by which the Revolving Credit Commitment of such
Revolving Credit Lender exceeds such Revolving Credit Lender's Ratable Portion
of the sum of (i) the aggregate outstanding principal amount of Revolving
Loans and (ii) the outstanding amount of the aggregate Letter of Credit
Obligations (the "Unused Commitment Fee") from the Initial Closing Date
through the Revolving Credit Termination Date at the Applicable Unused
Commitment Fee Rate, payable in arrears (x) on the first Business Day of each
calendar quarter, commencing on the first such Business Day following the
Effective Date and (y) on the Revolving Credit Termination Date.
(b) Letter of Credit Fees. The Borrower agrees to pay the
following amounts with respect to Letters of Credit issued by any Issuer:
(i) to the Administrative Agent for the account of
each Issuer of a Letter of Credit, with respect to each Letter of
Credit issued by such Issuer, an issuance fee equal to 0.25% per
annum (or such other rate as may be agreed upon between the Borrower
and such Issuer) of the maximum undrawn face amount of such Letter of
Credit, payable in arrears (A) on the first Business Day of each
calendar quarter, commencing on the first such Business Day following
the issuance of such Letter of Credit and (B) on the Revolving Credit
Termination Date;
(ii) to the Administrative Agent for the ratable
benefit of the Revolving Credit Lenders, with respect to each Letter
of Credit, a fee accruing at a rate per annum equal to the Applicable
Margin for Revolving Loans that are Eurodollar Rate Loans of the
maximum undrawn face amount available of such Letter of Credit,
payable in arrears on the first Business Day of each calendar
quarter, commencing on the first such Business Day following the
issuance of such Letter of Credit and (ii) on the Revolving Credit
Termination Date; provided, however, that during the continuance of
an Event of Default, such fee shall be increased by two percent per
annum (instead of, and not in addition to, any increase pursuant to
Section 2.16(c) and shall be payable on demand; and
(iii) to the Issuer of any Letter of Credit, with
respect to the issuance, amendment or transfer of each Letter of
Credit and each drawing made thereunder, documentary and processing
charges in accordance with such Issuer's standard schedule for such
charges in effect at the time of issuance, amendment, transfer or
drawing, as the case may be.
(c) Additional Fees. The Borrower has agreed to pay to the
Administrative Agent and the Arranger additional fees, the amount and dates of
payment of which are embodied in the Fee Letter.
SECTION 2.13. PAYMENTS AND COMPUTATIONS.
(a) The Borrower shall make each payment hereunder
(including fees and expenses) not later than 1:00 p.m. (New York time) on the
day when due, in Dollars, to the Administrative Agent at its address referred
to in Section 13.8 in immediately available funds without set-off or
counterclaim. The Administrative Agent shall promptly thereafter cause to be
distributed immediately available funds relating to the payment of principal,
interest or fees to the Lenders, in accordance with the application of
payments set forth in clauses (f) or (g) below, as applicable, for the account
of their respective Applicable Lending Offices; provided, however, that
amounts payable pursuant to Section 2.14(c), 2.14(d), 2.15 or 2.16 shall be
paid only to the affected Lender or Lenders and amounts payable with respect
to Swing Loans shall be paid only to the Swing Loan Lender. Payments received
by the Administrative Agent after 1:00 p.m. (New York time) shall be deemed to
be received on the next Business Day.
(b) All computations of interest and of fees shall be made
by the Administrative Agent on the basis of a year of 360 days, in each case
for the actual number of days (including the first day but excluding the last
day) occurring in the period for which such interest and fees are payable.
Each determination by the Administrative Agent of a rate of interest hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(c) If and to the extent any payment owed to the
Administrative Agent or any Lender is not made when due, each Loan Party
hereby authorizes the Administrative Agent and such Lender, subject to any
notice period provided in the Orders, to setoff and charge any amount so due
against any deposit account maintained by such Loan Party with the
Administrative Agent or such Lender, whether or not the deposit therein is
then due.
(d) Whenever any payment hereunder shall be stated to be due
on a day other than a Business Day, the due date for such payment shall be
extended to the next succeeding Business Day, and such extension of time shall
in such case be included in the computation of payment of interest or fees, as
the case may be; provided, however, that if such extension would cause payment
of interest on or principal of any Eurodollar Rate Loan to be made in the next
calendar month, such payment shall be made on the immediately preceding
Business Day. All repayments of any Revolving Loans or Term Loans shall be
applied as follows: first, to repay such Loans outstanding as Base Rate Loans
and then, to repay such Loans outstanding as Eurodollar Rate Loans, with those
Eurodollar Rate Loans having earlier expiring Eurodollar Interest Periods
being repaid prior to those having later expiring Eurodollar Interest Periods.
(e) Unless the Administrative Agent shall have received
notice from the Borrower to the Lenders prior to the date on which any payment
is due hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to each Lender
on such due date an amount equal to the amount then due such Lender. If and to
the extent that the Borrower shall not have made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon at the Federal Funds Rate, for the first Business Day, and,
thereafter, at the rate applicable to Base Rate Loans, for each day from the
date such amount is distributed to such Lender until the date such Lender
repays such amount to the Administrative Agent.
(f) Except for payments and other amounts received by the
Administrative Agent and applied in accordance with the provisions of clause
(g) below (or required to be applied in accordance with Section 2.9(b) or (d)
(Mandatory Prepayments)), all payments and any other amounts received by the
Administrative Agent from or for the benefit of the Borrower shall be applied
as follows: first, to pay principal of and interest on any portion of the
Loans the Administrative Agent may have advanced pursuant to the express
provisions of this Agreement on behalf of any Lender, for which the
Administrative Agent has not then been reimbursed by such Lender or the
Borrower; second, to pay all other Obligations then due and payable; and
third, as the Borrower so designates. Payments in respect of Swing Loans
received by the Administrative Agent shall be distributed to the Swing Loan
Lender; payments in respect of Revolving Loans received by the Administrative
Agent shall be distributed to each Revolving Credit Lender in accordance with
such Lender's Ratable Portion of the Revolving Credit Commitments; payments in
respect of the Term Loans received by the Administrative Agent shall be
distributed to each Term Loan Lender in accordance with such Lender's Ratable
Portion of the Term Loans; and all payments of fees and all other payments in
respect of any other Obligation shall be allocated among such of the Lenders
and Issuers as are entitled thereto, and, for payments allocated to the
Lenders, in proportion to their respective Ratable Portions.
(g) The Borrower hereby irrevocably waives the right to
direct the application of any and all payments in respect of the Obligations
and any proceeds of Collateral after the occurrence and during the continuance
of an Event of Default and agrees that, notwithstanding the provisions of
Section 2.9(b) (Mandatory Prepayments) and clause (f) above but subject only
to any requirements of the giving of notice by the terms of the Final Order or
the Amended and Restated DIP Order, the Administrative Agent may, and upon
either (A) the written direction of the Requisite Lenders or (B) the
acceleration of the Obligations pursuant to Section 9.2, shall deliver a
Blockage Notice for each Deposit Account Bank for each Approved Deposit
Account and apply all payments in respect of any Obligations and all funds on
deposit in any Cash Collateral Account (including all proceeds arising from a
Reinvestment Event that are held in the Cash Collateral Account pending
application of such proceeds as specified in a Reinvestment Notice) and all
other proceeds of Collateral in the following order:
(i) first, to pay interest on and then principal of
any portion of the Loans that the Administrative Agent may have
advanced on behalf of any Lender for which the Administrative Agent
has not then been reimbursed by such Lender or the Borrower;
(ii) second, to pay Secured Obligations in respect
of any expense reimbursements or indemnities and Cash Management
Obligations then due to the Administrative Agent;
(iii) third, to pay Secured Obligations in respect
of any expense reimbursements or indemnities and Cash Management
Obligations then due to the Revolving Credit Lenders and the Issuers;
(iv) fourth, to pay Secured Obligations in respect
of any fees then due to the Administrative Agent, the Revolving
Credit Lenders and the Issuers;
(v) fifth, to pay interest then due and payable in
respect of the Revolving Loans and Reimbursement Obligations;
(vi) sixth, to pay or prepay principal amounts on
the Revolving Loans and Reimbursement Obligations, and to provide
cash collateral for outstanding Letter of Credit Undrawn Amounts in
the manner described in Section 9.3, and to any Cash Management
Obligations and amounts owing with respect to Hedging Contracts,
ratably to the aggregate principal amount of such Revolving Loans,
Reimbursement Obligations and Letter of Credit Undrawn Amounts, Cash
Management Obligations and Obligations owing with respect to Hedging
Contracts;
(vii) seventh, to the ratable payment of all other
Revolving Credit Obligations then due and payable;
(viii) eighth, to pay Secured Obligations in
respect of any expense reimbursements or indemnities then due to the
Term Loan Lenders;
(ix) ninth, to pay Secured Obligations in respect
of any fees then due to the Term Loan Lenders;
(x) tenth, to pay interest then due and payable in
respect of the Term Loans;
(xi) eleventh, to pay or prepay principal amounts
on the Term Loans; and
(xii) twelfth, to the ratable payment of all other
Secured Obligations then due and payable;
provided, however, that if sufficient funds are not available to fund all
payments to be made in respect of any Secured Obligation described in any of
clauses (i), through (xii) above the available funds being applied with
respect to any such Secured Obligation (unless otherwise specified in such
clause) shall be allocated to the payment of such Secured Obligation ratably,
based on the proportion of the Administrative Agent's and each Lender's or
Issuer's interest in the aggregate outstanding Secured Obligations described
in such clauses; provided, further, that payments that would otherwise be
allocated to the Revolving Credit Lenders shall be allocated first to repay
Protective Advances and Swing Loans pro rata and then to the Revolving Credit
Lenders. The order of priority set forth in clauses (i) through (xii) above
may at any time and from time to time be changed by the agreement of the
Requisite Revolving Credit Lenders and the Requisite Term Loan Lenders without
necessity of notice to or consent of or approval by the Borrower, any Secured
Party that is not a Lender or Issuer or by any other Person that is not a
Lender or Issuer. The order of priority set forth in clauses (i), (ii), (iii)
and (iv) above may be changed only with the prior written consent of the
Administrative Agent in addition to that of the Requisite Revolving Credit
Lenders and the Requisite Term Loan Lenders.
(h) At the option of the Administrative Agent, principal on
the Swing Loans, Reimbursement Obligations, interest, fees, expenses and other
sums due and payable in respect of the Revolving Loans and Protective Advances
may be paid from the proceeds of Swing Loans or Revolving Loans. The Borrower
hereby authorizes the Swing Loan Lender to make such Swing Loans pursuant to
Section 2.3(a), and the Revolving Credit Lenders to make such Revolving Loans
pursuant to Section 2.2(a), from time to time in the Swing Loan Lender's or
such Revolving Credit Lender's discretion, that are in the amounts of any and
all principal payable with respect to the Swing Loans Reimbursement
Obligations, interest, fees, expenses and other sums payable in respect of the
Revolving Loans and Protective Advances, and further authorizes the
Administrative Agent to give the Revolving Credit Lenders notice of any
Borrowing with respect to such Swing Loans and Revolving Loans and to
distribute the proceeds of such Swing Loans and Revolving Loans to pay such
amounts. The Borrower agrees that all such Swing Loans and Revolving Loans so
made shall be deemed to have been requested by it (irrespective of the
satisfaction of the conditions in Section 3.2, which conditions the Revolving
Credit Lenders irrevocably waive) and directs that all proceeds thereof shall
be used to pay such amounts.
SECTION 2.14. SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE
LOANS.
(a) Determination of Interest Rate. The Eurodollar Rate for
each Interest Period for Eurodollar Rate Loans shall be determined by the
Administrative Agent pursuant to the procedures set forth in the definition of
"Eurodollar Rate." The Administrative Agent's determination shall be presumed
to be correct, absent manifest error, and shall be binding on the Borrower.
(b) Interest Rate Unascertainable, Inadequate or Unfair. In
the event that (i) the Administrative Agent determines that adequate and fair
means do not exist for ascertaining the applicable interest rates by reference
to which the Eurodollar Rate then being determined is to be fixed or (ii) the
Requisite Lenders notify the Administrative Agent that the Eurodollar Rate for
any Interest Period will not adequately reflect the cost to the Lenders of
making or maintaining such Loans for such Interest Period, the Administrative
Agent shall forthwith so notify the Borrower and the Lenders, whereupon each
Eurodollar Loan shall automatically, on the last day of the current Interest
Period for such Loan, convert into a Base Rate Loan and the obligations of the
Lenders to make Eurodollar Rate Loans or to convert Base Rate Loans into
Eurodollar Rate Loans shall be suspended until the Administrative Agent shall
notify the Borrower that the Requisite Lenders have determined that the
circumstances causing such suspension no longer exist.
(c) Increased Costs. If at any time any Lender determines
that the introduction of or any change in or in the interpretation of any law,
treaty or governmental rule, regulation or order (other than any change by way
of imposition or increase of reserve requirements included in determining the
Eurodollar Rate or relating to taxes) or the compliance by such Lender with
any guideline, request or directive from any central bank or other
Governmental Authority (whether or not having the force of law), shall have
the effect of increasing the cost to such Lender of agreeing to make or
making, funding or maintaining any Eurodollar Rate Loans, then the Borrower
shall from time to time, upon demand by such Lender (with a copy of such
demand to the Administrative Agent), pay to the Administrative Agent for the
account of such Lender additional amounts sufficient to compensate such Lender
for such increased cost. A certificate as to the amount of such increased
cost, submitted to the Borrower and the Administrative Agent by such Lender,
shall be conclusive and binding for all purposes, absent manifest error.
(d) Illegality. Notwithstanding any other provision of this
Agreement, if any Lender determines that the introduction of or any change in
or in the interpretation of any law, treaty or governmental rule, regulation
or order after the date of this Agreement shall make it unlawful, or any
central bank or other Governmental Authority shall assert that it is unlawful,
for any Lender or its Eurodollar Lending Office to make Eurodollar Rate Loans
or to continue to fund or maintain Eurodollar Rate Loans, then, on notice
thereof and demand therefor by such Lender to the Borrower through the
Administrative Agent, (i) the obligation of such Lender to make or to continue
Eurodollar Rate Loans and to convert Base Rate Loans into Eurodollar Rate
Loans shall be suspended, and each such Lender shall make a Base Rate Loan as
part of any requested Borrowing of Eurodollar Rate Loans and (ii) if the
affected Eurodollar Rate Loans are then outstanding, the Borrower shall
immediately convert each such Loan into a Base Rate Loan. If at any time after
a Lender gives notice under this Section 2.14(d) such Lender determines that
it may lawfully make Eurodollar Rate Loans, such Lender shall promptly give
notice of that determination to the Borrower and the Administrative Agent, and
the Administrative Agent shall promptly transmit the notice to each other
Lender. The Borrower's right to request, and such Lender's obligation, if any,
to make Eurodollar Rate Loans shall thereupon be restored.
(e) Breakage Costs. In addition to all amounts required to
be paid by the Borrower pursuant to Section 2.10, the Borrower shall
compensate each Lender, upon demand, for all losses, expenses and liabilities
(including any loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund or
maintain such Lender's Eurodollar Rate Loans to the Borrower but excluding any
loss of the Applicable Margin on the relevant Loans) that such Lender may
sustain (i) if for any reason (other than solely by reason of such Lender
being a Non-Funding Lender) a proposed Borrowing, conversion into or
continuation of Eurodollar Rate Loans does not occur on a date specified
therefor in a Notice of Borrowing or a Notice of Conversion or Continuation
given by the Borrower or in a telephonic request by it for borrowing or
conversion or continuation or a successive Interest Period does not commence
after notice therefor is given pursuant to Section 2.11, (ii) if for any
reason any Eurodollar Rate Loan is prepaid (including mandatorily pursuant to
Section 2.9) on a date that is not the last day of the applicable Interest
Period, (iii) as a consequence of a required conversion of a Eurodollar Rate
Loan to a Base Rate Loan as a result of any of the events indicated in Section
2.14(d), or (iv) as a consequence of any failure by the Borrower to repay
Eurodollar Rate Loans when required by the terms hereof. The Lender making
demand for such compensation shall deliver to the Borrower concurrently with
such demand a written statement as to such losses, expenses and liabilities,
and this statement shall be conclusive as to the amount of compensation due to
such Lender, absent manifest error.
SECTION 2.15. CAPITAL ADEQUACY. If at any time any Lender
determines that (a) the adoption of or any change in or in the interpretation
of any law, treaty or governmental rule, regulation or order after the date of
this Agreement regarding capital adequacy, (b) compliance with any such law,
treaty, rule, regulation, or order, or (c) compliance with any guideline or
request or directive from any central bank or other Governmental Authority
(whether or not having the force of law) shall have the effect of reducing the
rate of return on such Lender's (or any corporation controlling such Lender's)
capital as a consequence of its obligations hereunder or under or in respect
of any Letter of Credit to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, compliance or
interpretation, then, upon demand from time to time by such Lender (with a
copy of such demand to the Administrative Agent), the Borrower shall pay to
the Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender for such reduction. A certificate as to such amounts submitted to the
Borrower and the Administrative Agent by such Lender shall be conclusive and
binding for all purposes, absent manifest error.
SECTION 2.16. TAXES.
(a) Any and all payments by any Loan Party under each Loan
Document shall be made free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, excluding (i) in the case of each
Lender, Issuer and the Administrative Agent (A) taxes measured by its net
income, and franchise taxes imposed on it, and similar taxes imposed by the
jurisdiction (or any political subdivision thereof) under the laws of which
such Lender, Issuer or the Administrative Agent (as the case may be) is
organized and (B) any United States withholding taxes payable with respect to
payments under the Loan Documents under laws (including any statute, treaty or
regulation) in effect on the Initial Closing Date (or, in the case of an
Eligible Assignee, the date of the Assignment and Acceptance) applicable to
such Lender, Issuer or the Administrative Agent, as the case may be, but not
excluding any United States withholding taxes payable as a result of any
change in such laws occurring after the Initial Closing Date (or the date of
such Assignment and Acceptance) and (ii) in the case of each Lender or Issuer,
taxes measured by its net income, and franchise taxes imposed on it as a
result of a present or former connection between such Lender or Issuer (as the
case may be) and the jurisdiction of the Governmental Authority imposing such
tax or any taxing authority thereof or therein (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If any Taxes shall be required by law to
be deducted from or in respect of any sum payable under any Loan Document to
any Lender, any Issuer or the Administrative Agent (W) the sum payable shall
be increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.16) such Lender, Issuer or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (X) the relevant Loan Party shall make such deductions,
(Y) the relevant Loan Party shall pay the full amount deducted to the relevant
taxing authority or other authority in accordance with applicable law, and (Z)
the relevant Loan Party shall deliver to the Administrative Agent evidence of
such payment.
(b) In addition, each Loan Party agrees to pay any present
or future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies of the United States or any political subdivision
thereof or any applicable foreign jurisdiction, and all liabilities with
respect thereto, in each case arising from any payment made under any Loan
Document or from the execution, delivery or registration of, or otherwise with
respect to, any Loan Document (collectively, "Other Taxes").
(c) Each Loan Party shall, jointly and severally, indemnify
each Lender, Issuer and the Administrative Agent for the full amount of Taxes
and Other Taxes (including any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 2.16) paid by such Lender,
Issuer or the Administrative Agent (as the case may be) and any liability
(including for penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within 30 days from the
date such Lender, Issuer or the Administrative Agent (as the case may be)
makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes or
Other Taxes by any Loan Party, the Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 13.8, the original
or a certified copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement
of any Loan Party hereunder, the agreements and obligations of such Loan Party
contained in this Section 2.16 shall survive the payment in full of the
Obligations.
(f) Prior to the Effective Date in the case of each Non-U.S.
Lender that is a signatory hereto, and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender in the case of each other
Non-U.S. Lender and from time to time thereafter if requested by the Borrower
or the Administrative Agent, each Non-U.S. Lender that is entitled at such
time to an exemption from United States withholding tax, or that is subject to
such tax at a reduced rate under an applicable tax treaty, shall provide the
Administrative Agent and the Borrower with two completed originals of each of
the following: (i) Form W-8ECI (claiming exemption from withholding because
the income is effectively connected with a U.S. trade or business) or any
successor form; (ii) Form W-8BEN (claiming exemption from, or a reduction of,
withholding tax under an income tax treaty) or any successor form; (iii) in
the case of a Non-U.S. Lender claiming exemption under Sections 871(h) or
881(c) of the Code, a Form W-8BEN (claiming exemption from withholding under
the portfolio interest exemption) or successor form; or (iv) any other
applicable form, certificate or document prescribed by the IRS certifying as
to such Non-U.S. Lender's entitlement to such exemption from United States
withholding tax or reduced rate with respect to all payments to be made to
such Non-U.S. Lender under the Loan Documents. Unless the Borrower and the
Administrative Agent have received forms or other documents satisfactory to
them indicating that payments under any Loan Document to or for a Non-U.S.
Lender are not subject to United States withholding tax or are subject to such
tax at a rate reduced by an applicable tax treaty, the Loan Parties and the
Administrative Agent shall withhold amounts required to be withheld by
applicable requirements of law from such payments at the applicable statutory
rate.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.16 shall use its reasonable efforts (consistent
with its internal policies and requirements of law) to change the jurisdiction
of its Applicable Lending Office if the making of such a change would avoid
the need for, or reduce the amount of, any such additional amounts that would
be payable or may thereafter accrue and would not, in the sole determination
of such Lender, be otherwise disadvantageous to such Lender.
SECTION 2.17. SUBSTITUTION OF LENDERS.
(a) In the event that (i)(A) any Revolving Credit Lender
makes a claim under Section 2.14(c) (Increased Costs) or 2.15 (Capital
Adequacy), (B) it becomes illegal for any Revolving Credit Lender to continue
to fund or make any Eurodollar Rate Loan and such Revolving Credit Lender
notifies the Borrower pursuant to Section 2.14(d) (Illegality), (C) any Loan
Party is required to make any payment pursuant to Section 2.16 (Taxes) that is
attributable to a particular Revolving Credit Lender or (D) any Revolving
Credit Lender becomes a Non-Funding Lender, (ii) in the case of clause (i)(A)
above, as a consequence of increased costs in respect of which such claim is
made, the effective rate of interest payable to such Revolving Credit Lender
under this Agreement with respect to its Loans exceeds the effective average
annual rate of interest payable to the Requisite Lenders under this Agreement
and (iii) in the case of clause (i)(A), (B) and (C) above, Revolving Credit
Lenders holding at least 75% of the Revolving Credit Commitments are not
subject to such increased costs or illegality, payment or proceedings (any
such Revolving Credit Lender, an "Affected Lender"), the Borrower may
substitute any Revolving Credit Lender and, if reasonably acceptable to the
Administrative Agent, any other Eligible Assignee (a "Substitute Institution")
for such Affected Lender hereunder, after delivery of a written notice (a
"Substitution Notice") by the Borrower to the Administrative Agent and the
Affected Lender within a reasonable time (in any case not to exceed 90 days)
following the occurrence of any of the events described in clause (i) above
that the Borrower intends to make such substitution; provided, however, that,
if more than one Revolving Credit Lender claims increased costs, illegality or
right to payment arising from the same act or condition and such claims are
received by the Borrower within 30 days of each other, then the Borrower may
substitute all, but not (except to the extent the Borrower has already
substituted one of such Affected Lenders before the Borrower's receipt of the
other Affected Lenders' claim) less than all, Revolving Credit Lenders making
such claims.
(b) If the Substitution Notice was properly issued under
this Section 2.17, the Affected Lender shall sell, and the Substitute
Institution shall purchase, all rights and claims of such Affected Lender
under the Loan Documents, and the Substitute Institution shall assume, and the
Affected Lender shall be relieved of, the Affected Lender's Revolving Credit
Commitments and all other prior unperformed obligations of the Affected Lender
under the Loan Documents (other than in respect of any damages (other than
exemplary or punitive damages, to the extent permitted by applicable law) in
respect of any such unperformed obligations). Such purchase and sale (and the
corresponding assignment of all rights and claims hereunder) shall be
effective on (and not earlier than) the later of (i) the receipt by the
Affected Lender of its Ratable Portion of the Revolving Credit Outstandings,
together with any other Obligations owing to it, (ii) the receipt by the
Administrative Agent of an agreement in form and substance satisfactory to it
and the Borrower whereby the Substitute Institution shall agree to be bound by
the terms hereof and (iii) the payment in full to the Affected Lender in cash
of all fees, unreimbursed costs and expenses and indemnities accrued and
unpaid through such effective date. Upon the effectiveness of such sale,
purchase and assumption, the Substitute Institution shall become a "Lender"
hereunder for all purposes of this Agreement having a Revolving Credit
Commitment in the amount of such Affected Lender's Revolving Credit Commitment
assumed by it and such Revolving Credit Commitment of the Affected Lender
shall be terminated; provided, however, that all indemnities under the Loan
Documents shall continue in favor of such Affected Lender.
(c) Each Revolving Credit Lender agrees that, if it becomes
an Affected Lender and its rights and claims are assigned hereunder to a
Substitute Institution pursuant to this Section 2.17, it shall execute and
deliver to the Administrative Agent an Assignment and Acceptance to evidence
such assignment, together with any Revolving Credit Note (if such Loans are
evidenced by a Revolving Credit Note) evidencing the Loans subject to such
Assignment and Acceptance; provided, however, that the failure of any Affected
Lender to execute an Assignment and Acceptance shall not render such
assignment invalid.
Section 2.18. Change of Lending Office. Each Lender agrees
that, upon the occurrence of any event giving rise to the operation of Section
2.14, 2.15 or 2.16 with respect to such Lender, it will, if requested by the
Borrower, use reasonable efforts (subject to overall policy considerations of
such Lender) to designate another lending office for any Loans affected by
such event with the object of avoiding the consequences of such event;
provided, that such designation is made on terms that, in the sole judgment of
such Lender, cause such Lender and its lending office(s) to suffer no
economic, legal or regulatory disadvantage; provided, further, that nothing in
this Section 2.18 shall affect or postpone any of the obligations of any
Borrower or the rights of any Lender pursuant to Section 2.14, 2.15 or 2.16.
Section 2.19. Conversion of Term Loans. After the Discharge
of Revolving Credit Obligations and upon the effectiveness of a Plan of
Reorganization, the outstanding principal amount of Term Loans shall be repaid
in cash, together with the Applicable Term Loan Repayment Fee and any accrued
and unpaid interest and fees due thereon, or such principal amount of Term
Loans converted into New Common Equity, in each case on the terms and subject
to the conditions set forth in Schedule 2.19, and any conversion pursuant to
this Section 2.19 shall be deemed to constitute a repayment of the outstanding
principal amount of Term Loans so converted.
ARTICLE III
CONDITIONS TO LOANS AND LETTERS OF CREDIT
SECTION 3.1. CONDITIONS PRECEDENT TO THE EFFECTIVE DATE.
This Agreement shall be effective, and the Original DIP Credit Agreement shall
be amended and restated as set forth herein, on the date (the "Effective
Date") each of the following conditions precedent have been satisfied (or duly
waived in accordance with Section 13.1):
(a) Bankruptcy Court Orders. The Bankruptcy Court shall have
entered the Amended and Restated DIP Order and the Consent Order, each
certified by the Clerk of the Bankruptcy Court as having been duly entered,
and the Amended and Restated DIP Order and the Consent Order shall each be in
full force and effect and shall not have been vacated, reversed, modified,
amended or stayed without (i) in the case of the Amended and Restated DIP
Order, the prior written consent of the Administrative Agent, the Requisite
Lenders and ▇▇▇▇▇▇▇ and (ii) in the case of the Consent Order, the prior
written consent of ▇▇▇▇▇▇▇.
(b) Certain Documents. The Administrative Agent shall have
received on or prior to the Effective Date (and, to the extent any Borrowing
of any Eurodollar Rate Loans is requested to be made on the Effective Date, in
respect of the Notice of Borrowing for such Eurodollar Rate Loans, at least
three Business Days prior to the Effective Date) each of the following, each
dated the Effective Date unless otherwise indicated or agreed to by the
Administrative Agent, in form and substance satisfactory to the Administrative
Agent and ▇▇▇▇▇▇▇ and in sufficient copies for each Lender:
(i) this Agreement, duly executed and delivered by
each of the Loan Parties and, for the account of each Lender
requesting the same, a Note of the Borrower conforming to the
requirements set forth herein;
(ii) a favorable opinion of (A) Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Loan Parties, in
substantially the form of Exhibit H-1 (Form of Opinion of Counsel for
the Loan Parties) and (B) general counsel to the Loan Parties, in
substantially the form of Exhibit H-2 (Form of Opinion of General
Counsel for the Loan Parties), in each case addressed to the
Administrative Agent and the Lenders and addressing such other
matters as any Lender through the Administrative Agent may reasonably
request;
(iii) certificates of the Secretary of State of the
state of organization of each Loan Party, attesting to the good
standing of each such Loan Party;
(iv) a certificate of the Secretary or an Assistant
Secretary of each Loan Party certifying (A) the names and true
signatures of each officer of such Loan Party that has been
authorized to execute and deliver any Loan Document or other document
required hereunder to be executed and delivered by or on behalf of
such Loan Party, (B) the resolutions of such Loan Party's Board of
Directors (or equivalent governing body) approving and authorizing
the execution, delivery and performance of this Agreement and the
other Loan Documents to which it is a party and (C) that there have
been no changes (other than as may be attached to such certificate of
the Secretary or Assistant Secretary) to the certificate of
incorporation and by-laws (or equivalent Constituent Documents) of
such Loan Party from the certificate of incorporation and by-laws (or
equivalent Constituent Documents) delivered to the Administrative
Agent on the Initial Closing Date;
(v) a certificate of a Responsible Officer to the
effect that (A) the condition set forth in Section 3.2(b) has been
satisfied and (B) no litigation not listed on Schedule 4.6
(Litigation) shall have been commenced against any Loan Party or any
of its Subsidiaries that would have a Material Adverse Effect;
(vi) evidence satisfactory to the Administrative
Agent of the receipt of the consents, authorizations and approvals,
and the making of the filings, listed on Schedule 4.2;
(vii) true and correct copies, certified as to
authenticity by the Borrower, of all agreements and documents among
the Borrower, any other Loan Party and ▇▇▇▇▇▇▇ related to the Term
Loan; and
(viii) such other certificates, documents,
agreements and information respecting any Loan Party as any Lender
through the Administrative Agent may reasonably request.
(c) Assignment and Acceptance. The Administrative Agent
shall have received an Assignment and Acceptance, duly executed and delivered
by ▇▇▇▇▇▇▇, to purchase and assume for a purchase price of $25,000,000 all of
the Term Loans made on the Effective Date immediately upon the occurrence of
the Effective Date.
(d) Bankruptcy Court Filings. All motions and other
documents filed with the Bankruptcy Court in connection with the Facilities
shall be in form and substance satisfactory to the Administrative Agent and
▇▇▇▇▇▇▇, each in its sole discretion. The Borrower shall have filed with the
Bankruptcy Court all motions and other documents in connection with approval
by the Bankruptcy Court of the Consent Order.
(e) Fee and Expenses Paid. There shall have been paid to the
Administrative Agent, for the account of the Administrative Agent and the
Lenders, as applicable, all fees and expenses (including reasonable fees and
expenses of counsel) due and payable on or before the Effective Date.
(f) Release. The execution and delivery by the Loan Parties
to ▇▇▇▇▇▇▇ of a release of any and all claims and causes of action against
▇▇▇▇▇▇▇ relating to or arising from any acts taken by ▇▇▇▇▇▇▇ in connection
with its acquisition prior to the Effective Date of claims against (or
participation interests in claims against), or interests in, the Borrower,
which release shall be reasonably satisfactory in form and substance to
▇▇▇▇▇▇▇.
SECTION 3.2. CONDITIONS PRECEDENT TO EACH LOAN AND LETTER OF
CREDIT. The obligation of each Lender on any date (including the Effective
Date) to make any Loan and of each Issuer on any date (including the Effective
Date) to Issue any Letter of Credit is subject to the satisfaction of each of
the following conditions precedent:
(a) Request for Borrowing or Issuance of Letter of Credit.
With respect to any Loan, the Administrative Agent shall have received a duly
executed Notice of Borrowing or, in the case of Swing Loans, a duly executed
Swing Loan Request, and with respect to any Letter of Credit, the
Administrative Agent and the Issuer shall have received a duly executed Letter
of Credit Request.
(b) Representations and Warranties; No Defaults. The
following statements shall be true on the date of such Loan or Issuance, both
before and after giving effect thereto and, in the case of any Loan, to the
application of the proceeds thereof:
(i) the representations and warranties set forth in
Article IV and in the other Loan Documents shall be true and correct
on and as of the Effective Date and shall be true and correct in all
material respects on and as of any such date after the Effective Date
with the same effect as though made on and as of such date, except to
the extent such representations and warranties expressly relate to an
earlier date, in which case such representations and warranties shall
have been true and correct in all material respects as of such
earlier date; and
(ii) no Default or Event of Default shall have
occurred and be continuing.
(c) Borrowing Base. In respect of Revolving Loans and
Letters of Credit only, the Borrower shall have delivered the Borrowing Base
Certificate required to be delivered by Section 6.11(a). After giving effect
to the Loans or Letters of Credit requested to be made or Issued on any such
date and the use of proceeds thereof, the Revolving Credit Outstandings shall
not exceed the Maximum Credit at such time.
(d) No Legal Impediments. The making of the Loans or the
Issuance of such Letter of Credit on such date does not violate any
Requirement of Law on the date of or immediately following such Loan or
Issuance of such Letter of Credit and is not enjoined, temporarily,
preliminarily or permanently.
(e) Orders. Each of the Orders shall be in full force and
effect and shall not have been vacated, reversed, modified, amended or stayed
without the prior written consent of the Administrative Agent in its sole
discretion and the Requisite Lenders, except to the extent expressly provided
in the Amended and Restated DIP Order.
Each submission by the Borrower to the Administrative Agent of a Notice of
Borrowing or a Swing Loan Request and the acceptance by the Borrower of the
proceeds of each Loan requested therein, and each submission by the Borrower
to an Issuer of a Letter of Credit Request and the Issuance of each Letter of
Credit requested therein, shall be deemed to constitute a representation and
warranty by the Borrower as to the matters specified in Section 3.2(b) on the
date of the making of such Loan or the Issuance of such Letter of Credit.
SECTION 3.3. DETERMINATION OF EFFECTIVE DATE. For purposes
of determining compliance with the conditions specified in Section 3.1
(Conditions Precedent to the Effective Date), each Lender shall be deemed to
have consented to, approved, accepted or be satisfied with, each document or
other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to the Lenders unless an officer of the
Administrative Agent responsible for the transactions contemplated by the Loan
Documents shall have received notice from such Lender prior to the Effective
Date specifying its objection thereto and such Lender shall not have made
available to the Administrative Agent such Lender's Ratable Portion of the
Borrowing on the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Lenders, the Issuers and the Administrative
Agent to enter into this Agreement, the Borrower represents and warrants as to
itself and as to each other Loan Party, and each other Loan Party represents
and warrants as to such Loan Party, each of the following to the Lenders, the
Issuers and the Administrative Agent, on and as of the Effective Date and
after giving effect to the making of the Loans and the other financial
accommodations on the Effective Date and on and as of each date as required by
Section 3.2(b)(i):
SECTION 4.1. CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each
of the Borrower and its Subsidiaries (a) is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization;
(b) is duly qualified to do business as a foreign entity and in good standing
under the laws of each jurisdiction where such qualification is necessary,
except where the failure to be so qualified or in good standing would not, in
the aggregate, have a Material Adverse Effect; (c) subject to the receipt of
any necessary approvals of the Bankruptcy Court, has all requisite power and
authority and the legal right to own, pledge, mortgage and operate its
properties, to lease the property it operates under lease and to conduct its
business as now or currently proposed to be conducted; (d) is in compliance
with its Constituent Documents; (e) is in compliance with all applicable
Requirements of Law, except where the failure to be in compliance would not,
in the aggregate, have a Material Adverse Effect; and (f) has all necessary
Permits from or by, has made all necessary filings with, and has given all
necessary notices to, each Governmental Authority having jurisdiction, to the
extent required for such ownership, operation and conduct, except for Permits
or filings that can be obtained or made by the taking of ministerial action to
secure the grant or transfer thereof or the failure to obtain or make would
not, in the aggregate, have a Material Adverse Effect.
SECTION 4.2. CORPORATE POWER; AUTHORIZATION; ENFORCEABLE
OBLIGATIONS.
(a) The execution, delivery and performance by each Loan
Party of the Loan Documents to which it is a party and the consummation of the
transactions contemplated thereby, partners and members:
(i) are, subject to the Final Order and the entry
of the Amended and Restated DIP Order, within such Loan Party's
corporate, limited liability company, partnership or other powers;
(ii) have been or, at the time of delivery thereof
pursuant to Article III will have been, duly authorized by all
necessary corporate, limited liability company, partnership or
similar action, including the consent of shareholders, partners and
members where required;
(iii) subject to the Final Order and the entry of
the Amended and Restated DIP Order, do not and will not (A)
contravene such Loan Party's or any of its Subsidiaries' respective
Constituent Documents, (B) violate any other Requirement of Law
applicable to such Loan Party (including Regulations T, U and X of
the Federal Reserve Board), or any order or decree of any
Governmental Authority or arbitrator applicable to such Loan Party,
(C) conflict with or result in the breach of, or constitute a default
under, or result in or permit the termination or acceleration of, any
material post-petition Contractual Obligation of such Loan Party or
any of its Subsidiaries, or (D) result in the creation or imposition
of any Lien upon any property of such Loan Party or any of its
Subsidiaries, other than those in favor of the Secured Parties
pursuant to this Agreement, the Collateral Documents and the Orders;
and
(iv) do not require the consent of, authorization
by, approval of, notice to, or filing or registration with, any
Governmental Authority or any other Person, other than the Bankruptcy
Court and those listed on Schedule 4.2 and that have been or will be,
on or prior to the Effective Date, obtained or made, copies of which
have been or will be delivered to the Administrative Agent pursuant
to Section 3.1, and each of which on the Effective Date will be in
full force and effect.
(b) This Agreement has been, and each of the other Loan
Documents will have been upon delivery thereof pursuant to the terms of this
Agreement, duly executed and delivered by each Loan Party party thereto.
Subject to the Final Order and the entry of the Amended and Restated DIP
Order, this Agreement is, and the other Loan Documents will be, when delivered
hereunder, the legal, valid and binding obligation of each Loan Party party
thereto, enforceable against such Loan Party in accordance with its terms.
SECTION 4.3. OWNERSHIP OF BORROWER; SUBSIDIARIES.
(a) As of the Effective Date, the authorized capital stock
of the Borrower consists of (i) 40,000,000 shares of Class A common stock,
$0.01 par value per share, of which 20,701,162 shares are issued and
outstanding, (ii) 7,000,000 shares of Class B common stock, $0.01 par value
per share, of which 1,196,283 shares are issued and outstanding and (iii)
10,000,000 shares of preferred stock, of which no shares are issued and
outstanding.
(b) Set forth on Schedule 4.3 hereto is a complete and
accurate list showing, as of the Effective Date, all Subsidiaries of the
Borrower and, as to each such Subsidiary, the jurisdiction of its
organization, the number of shares of each class of Stock authorized (if
applicable), the number outstanding on the Effective Date and the number and
percentage of the outstanding shares of each such class owned (directly or
indirectly) by the Borrower. No Stock of any Subsidiary of the Borrower is
subject to any outstanding option, warrant, right of conversion or purchase or
any similar right. All of the outstanding Stock of each Subsidiary of the
Borrower owned (directly or indirectly) by the Borrower has been validly
issued, is fully paid and non-assessable (to the extent applicable) and is
owned by the Borrower or a Subsidiary of the Borrower, free and clear of all
Liens (other than the Lien in favor of the Secured Parties created pursuant to
this Agreement and the Orders and Liens securing the Prepetition Secured
Indebtedness), options, warrants, rights of conversion or purchase or any
similar rights. Neither the Borrower nor any such Subsidiary is a party to, or
has knowledge of, any post-petition agreement restricting the transfer or
hypothecation of any Stock of any such Subsidiary, other than the Loan
Documents and pre-petition Contractual Obligations subject to the automatic
stay. The Borrower does not own or hold, directly or indirectly, any Stock of
any Person other than such Subsidiaries and Investments permitted by Section
8.3.
SECTION 4.4. FINANCIAL STATEMENTS.
(a) The Consolidated balance sheets of the Borrower and its
Subsidiaries as at the Fiscal Months ended on or about October 31, November 30
and December 31, 2004 and the related Consolidated statements of income,
retained earnings and cash flows of the Borrower and its Subsidiaries for the
1, 2 and 3 month or months then ended, respectively, copies of which have been
furnished to each Lender, fairly present, subject, to the absence of footnote
disclosure, normal recurring year-end audit adjustments and adjustments
required in connection with the resolution of the Borrower's outstanding
accounting issues with the agreement of the Borrower's Accountants, the
Consolidated financial condition of the Borrower and its Subsidiaries as at
such dates and the Consolidated results of the operations of the Borrower and
its Subsidiaries for the period ended on such dates, all in conformity with
GAAP (it being understood that the representation and warranty contained in
this Section 4.4(a) shall not be made with respect to any financial statements
delivered prior to the date on which the financial statements described in
Section 6.1(h) are delivered).
(b) Neither the Borrower nor any of its Subsidiaries has any
material obligation, contingent liability or liability for taxes, long-term
leases or unusual forward or long-term commitment that is not reflected in
either the Financial Statements referred to in clause (a) above or in the
notes thereto and not otherwise permitted by this Agreement (other than those
subject to the automatic stay) or the filings made with the Bankruptcy Court.
(c) The Interim Projections have been prepared by the
Borrower in light of the past operations of its business, and reflect
projections for the 12 month period beginning on the Initial Closing Date on a
month by month basis. The Interim Projections are based upon estimates and
assumptions stated therein, all of which the Borrower believes to be
reasonable and fair in light of current conditions and current facts known to
the Borrower as of the date of preparation thereof and, as of the date
thereof, reflect, based on the assumptions set forth therein, the Borrower's
good faith and reasonable estimates of the future financial performance of the
Borrower and its Subsidiaries and of the other information projected therein
for the periods set forth therein (it being understood that such projections
are subject to significant uncertainties and contingencies, many of which are
beyond the Borrower's control, and that no assurance can be given that the
projections will be realized).
SECTION 4.5. MATERIAL ADVERSE CHANGE. Other than the filing
of the Cases, since the Petition Date, there has been no Material Adverse
Change and there have been no events or developments that, in the aggregate,
have had a Material Adverse Effect.
SECTION 4.6. LITIGATION. Other than the Cases and except as
set forth on Schedule 4.6, there are no pending or, to the knowledge of the
Borrower, threatened actions, investigations or proceedings affecting the
Borrower, or any of its Subsidiaries before any court, Governmental Authority
or arbitrator other than those that are subject to the automatic stay or
otherwise, in the aggregate, would not have a Material Adverse Effect. The
performance of any action by any Loan Party required or contemplated by any
Loan Document is not restrained or enjoined (either temporarily, preliminarily
or permanently).
SECTION 4.7. TAXES.
(a) All federal, state, local and foreign income and
franchise and other material tax returns, reports and statements
(collectively, the "Tax Returns") required to be filed by the Borrower or any
of its Tax Affiliates have been filed with the appropriate Governmental
Authorities in all jurisdictions in which such Tax Returns are required to be
filed (except to the extent that the Administrative Agent otherwise consents
(such consent not to be unreasonably withheld) with respect to any Tax Returns
to be filed after the Initial Closing Date), all such Tax Returns are true and
correct in all material respects, and all material taxes, charges and other
impositions reflected therein or otherwise due and payable (except in each
case, those which arose prior to the Petition Date to the extent subject to
the automatic stay) have been paid prior to the date on which any fine,
penalty, interest, late charge or loss may be added thereto for non-payment
thereof except where contested in good faith and by appropriate proceedings if
adequate reserves therefor have been established on the books of the Borrower
or such Tax Affiliate in conformity with GAAP. As of the Effective Date,
except as set forth on Schedule 4.7, no Tax Return is under audit or
examination by any Governmental Authority and no notice of such an audit or
examination or any assertion of any claim for Taxes has been given or made by
any Governmental Authority. Proper and accurate amounts have been withheld by
the Borrower and each of its Tax Affiliates from their respective employees
for all periods in full and complete compliance in all material respects with
the tax, social security and unemployment withholding provisions of applicable
Requirements of Law and such withholdings have been timely paid to the
respective Governmental Authorities.
(b) Except as set forth on Schedule 4.7, none of the
Borrower or any of its Tax Affiliates has (i) executed or filed with the IRS
or any other Governmental Authority any agreement or other document extending,
or having the effect of extending, the period for the filing of any Tax Return
or the assessment or collection of any charges (other than an extension in the
State of Louisiana for State income taxes); (ii) incurred any obligation under
any tax sharing agreement or arrangement with any third-party other than those
of which the Administrative Agent has received a copy prior to the date
hereof; or (iii) been a member of an affiliated, combined or unitary group
other than the group of which the Borrower (or its Tax Affiliate) is the
common parent.
(c) The Borrower does not intend to treat the Loans and the
Letters of Credit and the related transactions contemplated hereby as being a
"reportable transaction" (within the meaning of Treasury Regulation Section
1.6 011-4 of the Code).
SECTION 4.8. FULL DISCLOSURE.
The information prepared or furnished by or on behalf of any
Loan Party in connection with this Agreement or the consummation of the
transactions contemplated hereunder taken as a whole, does not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements contained therein or herein not misleading. All facts
known to the Borrower material to an understanding of the financial condition,
business, properties or prospects of the Borrower and its Subsidiaries taken
as one enterprise have been disclosed to the Lenders.
SECTION 4.9. MARGIN REGULATIONS. The Borrower is not engaged
in the business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U of the Federal Reserve
Board), and no proceeds of any Loan will be used to purchase or carry any such
margin stock or to extend credit to others for the purpose of purchasing or
carrying any such margin stock in contravention of Regulation T, U or X of the
Federal Reserve Board.
SECTION 4.10. NO BURDENSOME RESTRICTIONS; NO DEFAULTS.
(a) Neither the Borrower nor any of its Subsidiaries (i) is
a party to any Contractual Obligation (other than pre-petition Contractual
Obligations subject to the automatic stay) the compliance with one or more of
which would have, in the aggregate, a Material Adverse Effect or the
performance of which by any thereof, either unconditionally or upon the
happening of an event, would result in the creation of a Lien (other than a
Lien permitted under Section 8.2) on the assets of any thereof or (ii) is
subject to one or more charter or corporate restrictions that, would, in the
aggregate, have a Material Adverse Effect.
(b) Neither the Borrower nor any of its Subsidiaries is in
default under or with respect to any Contractual Obligation (other than
pre-petition Contractual Obligations subject to the automatic stay) owed by it
and, to the knowledge of the Borrower, no other party is in default under or
with respect to any Contractual Obligation owed to any Loan Party or to any
Subsidiary of any Loan Party, other than, in either case, those defaults that,
in the aggregate, would not have a Material Adverse Effect.
(c) No Default or Event of Default has occurred and is
continuing.
(d) To the best knowledge of the Borrower, there are no
Requirements of Law applicable to any Loan Party or any Subsidiary of any Loan
Party the compliance with which by such Loan Party or such Subsidiary, as the
case may be, would, in the aggregate, have a Material Adverse Effect.
SECTION 4.11. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT. Neither the Borrower nor any of its Subsidiaries is (a) an
"investment company" or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended or (b) a "holding company," or an
"affiliate", a "holding company" or a "subsidiary company" of a "holding
company", as each such term is defined and used in the Public Utility Holding
Company Act of 1935, as amended.
SECTION 4.12. USE OF PROCEEDS. The proceeds of the Loans and
the Letters of Credit are being used by the Borrower (and, to the extent
distributed to them by the Borrower, each other Loan Party) solely as follows:
(a) with respect to Revolving Loans and Letters of Credit, (i) to repay in
full all "Revolving Obligations" under and as defined in the Existing Credit
Agreement (provided, that a portion of such proceeds up to an amount
acceptable to the Administrative Agent may (A) be used as cash collateral for
outstanding letters of credit constituting such Revolving Obligations and (B)
be funded into an escrow account pending resolution of any disputed amount of
such Revolving Obligations (except with respect to principal, interest or
obligations pursuant to letters of credit constituting such Revolving
Obligations)), (ii) to repay in full all "Term Loans" under and as defined in
the Existing Credit Agreement and all other indebtedness and other obligations
outstanding thereunder, (iii) to fund post-petition operating expenses of the
Loan Parties incurred in the ordinary course of business, (iv) to pay certain
other costs and expenses of administration of the Cases to be specified in
writing to the Administrative Agent (including by notice of application for
orders), and (v) for working capital, capital expenditures and other general
corporate purposes of the Loan Parties not in contravention of any Requirement
of Law or the Loan Documents and (b) with respect to Term Loans, to repay
Revolving Loans outstanding on the Effective Date. The Borrower shall use the
entire amount of the proceeds of each Loan in accordance with this Section
4.12; provided, however, that nothing herein shall in any way prejudice or
prevent the Administrative Agent or the Lenders from objecting, for any
reason, to any requests, motions or applications made in the Bankruptcy Court,
including any applications for interim or final allowances of compensation for
services rendered or reimbursement of expenses incurred under sections 105(a),
330 or 331 of the Bankruptcy Code, by any party in interest, and provided,
further, that the Borrower shall not use the proceeds from any Loans or
Letters of Credit for any purpose that is prohibited under the Bankruptcy
Code.
SECTION 4.13. INSURANCE. All policies of insurance of any
kind or nature of the Borrower or any of its Subsidiaries, including policies
of life, fire, theft, product liability, public liability, property damage,
other casualty, employee fidelity, workers' compensation and employee health
and welfare insurance, are in full force and effect and are of a nature and
provide such coverage as is sufficient and as is customarily carried by
businesses of the size and character of such Person.
SECTION 4.14. LABOR MATTERS.
(a) There are no strikes, work stoppages, slowdowns or
lockouts pending or threatened against or involving the Borrower or any of its
Subsidiaries, other than those that, in the aggregate, would not have a
Material Adverse Effect.
(b) There are no unfair labor practices, grievances,
complaints or arbitrations pending, or, to the Borrower's knowledge,
threatened, against or involving the Borrower or any of its Subsidiaries, nor
are there any arbitrations or grievances threatened involving the Borrower or
any of its Subsidiaries, other than those that, in the aggregate, would not
have a Material Adverse Effect.
(c) Except as set forth on Schedule 4.14, as of the
Effective Date, there is no collective bargaining agreement covering any
employee of the Borrower or its Subsidiaries, other than those entered into
prior to the Petition Date which are subject to the automatic stay.
(d) Schedule 4.14 sets forth, as of the Effective Date, all
material consulting agreements, executive employment agreements, executive
compensation plans, deferred compensation agreements, employee stock purchase
and stock option plans and severance plans of the Borrower and any of its
Subsidiaries, other than those entered into prior to the Petition Date which
are subject to the automatic stay.
SECTION 4.15. ERISA.
(a) Schedule 4.15 separately identifies as of the Effective
Date all Title IV Plans, all Multiemployer Plans and all of the employee
benefit plans within the meaning of Section 3(3) of ERISA to which the
Borrower or any of its Subsidiaries has any obligation or liability,
contingent or otherwise.
(b) Each employee benefit plan of the Borrower or any of its
Subsidiaries intended to qualify under Section 401 of the Code does so
qualify, and any trust created thereunder is exempt from tax under the
provisions of Section 501 of the Code, except where such failures, in the
aggregate, would not have a Material Adverse Effect.
(c) Each Title IV Plan is in compliance in all material
respects with applicable provisions of ERISA, the Code and other Requirements
of Law except for non-compliances that, in the aggregate, would not have a
Material Adverse Effect.
(d) Other than the Cases, there has been no, nor is there
reasonably expected to occur, any ERISA Event other than those that, in the
aggregate, would not have a Material Adverse Effect.
(e) Except to the extent set forth on Schedule 4.15, none of
the Borrower, any of the Borrower's Subsidiaries or any ERISA Affiliate would
have any Withdrawal Liability as a result of a complete withdrawal as of the
date hereof from any Multiemployer Plan.
SECTION 4.16. ENVIRONMENTAL MATTERS.
(a) The operations of the Borrower and each of its
Subsidiaries have been and are in compliance with all Environmental Laws,
including obtaining and complying with all required environmental, health and
safety Permits, other than non-compliances that, in the aggregate, would not
have a Material Adverse Effect.
(b) None of the Borrower or any of its Subsidiaries or any
Real Property currently or, to the knowledge of the Borrower, previously
owned, operated or leased by or for the Borrower or any of its Subsidiaries is
subject to any pending or, to the knowledge of the Borrower, threatened,
claim, order, agreement, notice of violation, notice of potential liability or
is the subject of any pending or threatened proceeding or governmental
investigation under or pursuant to Environmental Laws other than those that,
in the aggregate, would not have a Material Adverse Effect.
(c) Except as disclosed on Schedule 4.16, none of the
Borrower or any of its Subsidiaries is a treatment, storage or disposal
facility requiring a Permit under the Resource Conservation and Recovery Act,
42 U.S.C. ss. 6901 et seq., the regulations thereunder or any state analog.
(d) There are no facts, circumstances or conditions arising
out of or relating to the operations or ownership of Real Property owned,
operated or leased by the Borrower or any of its Subsidiaries that are not
specifically included in the financial information furnished to the Lenders
other than those that, in the aggregate, would not have a Material Adverse
Effect.
(e) As of the date hereof, no Environmental Lien has
attached to any property of the Borrower or any of its Subsidiaries and, to
the knowledge of the Borrower, no facts, circumstances or conditions exist
that could reasonably be expected to result in any such Lien attaching to any
such property.
(f) As of the Effective Date, the Borrower and each of its
Subsidiaries has made available to the Lenders, to the extent requested,
copies of all environmental, health or safety audits, studies, assessments,
inspections, investigations or other environmental health and safety reports
relating to the operations of the Borrower or any of its Subsidiaries or any
Real Property of any of them that are in the possession, custody or control of
the Borrower or any of its Subsidiaries.
SECTION 4.17. INTELLECTUAL PROPERTY. The Borrower and its
Subsidiaries own or license or otherwise have the right to use all Material
Intellectual Property and other material intellectual property rights that are
necessary for the operations of their respective businesses, without
infringement upon or conflict with the rights of any other Person with respect
thereto, including all trade names associated with any private label brands of
the Borrower or any of its Subsidiaries. To the Borrower's knowledge, no
Material Intellectual Property, slogan or other advertising device, product,
process, method, substance, part or component, or other material now employed,
or now contemplated to be employed, by the Borrower or any of its Subsidiaries
infringes upon or conflicts with any rights owned by any other Person, and no
material claim or litigation regarding any of the foregoing is pending or
threatened.
SECTION 4.18. TITLE; REAL PROPERTY.
(a) Each of the Borrower and its Subsidiaries has good and
marketable title to, or valid leasehold interests in, all material Real
Property, good title to all Inventory, Installment Contracts and Accounts and
good title to all other material personal property, in each case that is
purported to be owned or leased by it, including those reflected on the most
recent Financial Statements delivered by the Borrower and not disposed of
since the date thereof, and none of such properties and assets is subject to
any Lien, except Liens permitted under Section 8.2. The Borrower and its
Subsidiaries have received all deeds, assignments, waivers, consents,
non-disturbance and recognition or similar agreements, bills of sale and other
documents in respect of, and have duly effected all recordings, filings and
other actions necessary to establish, protect and perfect, the Borrower's and
its Subsidiaries' right, title and interest in and to all such property.
(b) Set forth on Schedule 4.18 hereto is a complete and
accurate list of all Real Property of each Loan Party and its Subsidiaries and
showing as of the Effective Date the current street address (including, where
applicable, county, state and other relevant jurisdictions), record owner and,
where applicable, lessee thereof.
(c) All Permits required to have been issued or appropriate
to enable all Real Property of the Borrower or any of its Subsidiaries to be
lawfully occupied and used for all of the purposes for which they are
currently occupied and used have been lawfully issued and are in full force
and effect, other than those that, in the aggregate, would not have a Material
Adverse Effect.
(d) None of the Borrower or any of its Subsidiaries has
received any notice, or has any knowledge, of any pending, threatened or
contemplated condemnation proceeding affecting any Real Property of the
Borrower or any of its Subsidiaries or any part thereof, except those which,
in the aggregate, would not have a Material Adverse Effect.
SECTION 4.19. SECURED, SUPER PRIORITY OBLIGATIONS.
(a) On and after (i) the Initial Closing Date, the
provisions of the Original DIP Credit Agreement, the Loan Documents (as
defined in the Original DIP Credit Agreement) and the Final Order and (ii) the
Effective Date, the provision of this Agreement, the Loan Documents and the
Orders, are effective to create in favor of the Administrative Agent, for the
benefit of the Secured Parties, legal, valid and perfected Liens on and
security interests (having the priority provided for herein and in the Orders)
in all right, title and interest in the Collateral, enforceable against each
Loan Party that owns an interest in such Collateral.
(b) Pursuant to subsections 364(c)(2) and (3) of the
Bankruptcy Code and the Orders, all amounts owing by the Borrower under the
Facilities and by the Guarantors in respect thereof (including, without
limitation, any exposure of a Lender or any of its Affiliates in respect of
Cash Management Obligations or Hedging Contracts incurred on behalf of any
Loan Party) will be secured by a first priority perfected Lien on the
Collateral, subject only to (i) valid, perfected, nonavoidable and enforceable
Liens existing as of the Petition Date, other than the Liens on the Collateral
securing Prepetition Secured Indebtedness, (ii) the Carve-Out, (iii) Liens
permitted under Section 8.2 (d) and (iv) post-petition Liens permitted under
Section 8.2(c), (e) and (i); provided, however, that the Liens granted to the
Administrative Agent, for the benefit of the Secured Parties, shall be senior
to any Lien which is expressly stated herein to be junior to the Liens in
favor of the Administrative Agent, for the benefit of the Secured Parties.
(c) Pursuant to section 364(c) of the Bankruptcy Code and
the Orders, all Secured Obligations of the Borrower and all Secured
Obligations of the Subsidiary Guarantors (including, without limitation, any
exposure of a Lender or any of its Affiliates in respect of Cash Management
Obligations or Hedging Contracts incurred on behalf of any Loan Party) at all
times will constitute allowed super-priority administrative expense claims in
each of the Cases having priority over all administrative expenses of the kind
specified in sections 503(b) or 507(b) of the Bankruptcy Code, subject only to
the Carve-Out.
(d) Pursuant to subsections 364(d)(1) of the Bankruptcy Code
and the Orders, all amounts owing by the Borrower under the Facilities and by
the Guarantors in respect thereof (including, without limitation, any exposure
of a Lender or any of its Affiliates in respect of Cash Management Obligations
or Hedging Contracts incurred on behalf of any Loan Party) will be secured by
a first priority, perfected and senior priming Lien on the Prepetition
Collateral, subject only to (i) the Carve-Out, (ii) Liens permitted under
Section 8.2(d), (iii) post-petition Liens permitted under Section 8.2(c), (e)
and (i) and (iv) the purchase money Lien on the Chief Executive Office.
(e) Each of the Orders and the transactions contemplated
hereby and thereby, are in full force and effect and have not been vacated,
reversed, modified, amended or stayed, except for (i) amendments and
modifications pursuant to Section 13.1(a)(xiv) and (ii) any amendment to the
Final Order pursuant to the Amended and Restated DIP Order.
SECTION 4.20. DEPOSIT ACCOUNTS; CONTROL ACCOUNTS. The only
Deposit Accounts, Securities Accounts or Commodity Accounts maintained by any
Loan Party on the Effective Date are those listed on Schedule 4.20, which sets
forth such information separately for each Loan Party.
SECTION 4.21. TITLE; NO OTHER LIENS. Except for the Lien
granted to the Administrative Agent pursuant to this Agreement, (a) each Loan
Party is the record and beneficial owner of the Pledged Collateral pledged by
it hereunder constituting Instruments or certificated securities and is the
entitlement holder of all such Pledged Collateral constituting Investment
Property held in a Securities Account and owns each other item of Collateral
in which a Lien is granted by it hereunder and (b) all such Collateral is
owned free and clear of any and all Liens other than Liens permitted by
Section 8.2.
SECTION 4.22. PLEDGED COLLATERAL.
(a) The Pledged Stock, Pledged Partnership Interests and
Pledged LLC Interests pledged hereunder by each Loan Party constitutes that
percentage of the issued and outstanding equity of all classes of each issuer
thereof as set forth on Schedule 4.22.
(b) All of the Pledged Stock, Pledged Partnership Interests
and Pledged LLC Interests have been duly and validly issued and are fully paid
and nonassessable.
(c) All Pledged Stock, Pledged Partnership Interests,
Pledged LLC Interests and Pledged Notes of such Loan Party as of the Effective
Date are listed on Schedule 4.22.
(d) As of the Effective Date and at all times thereafter,
all Pledged Collateral consisting of certificated securities or Instruments
has been delivered to the Administrative Agent to the extent requested by the
Administrative Agent.
(e) As of the Effective Date and at all times thereafter,
all Pledged Collateral held by a Securities Intermediary in a Securities
Account is, to the extent requested by the Administrative Agent, in a Control
Account. (f) Other than the Pledged Partnership Interests and the Pledged LLC
Interests that constitute General Intangibles, as of the Effective Date, there
is no Pledged Collateral other than that represented by certificated
securities or Instruments in the possession of the Administrative Agent or
that consisting of Financial Assets held, to the extent requested by the
Administrative Agent, in a Control Account.
(g) No Person other than the Administrative Agent has
Control over any Investment Property of such Loan Party.
SECTION 4.23. INTELLECTUAL PROPERTY.
(a) Schedule 4.23 lists all material Intellectual Property
of such Loan Party on the Effective Date, separately identifying that owned by
such Loan Party and that licensed to such Loan Party. The Intellectual
Property set forth on Schedule 4.23 for such Loan Party constitutes all of the
intellectual property rights necessary to conduct its business.
(b) On the Effective Date, all Intellectual Property owned
by such Loan Party is valid, subsisting, unexpired and enforceable, has not
been adjudged invalid and has not been abandoned and the use thereof in the
business of such Loan Party does not infringe the intellectual property rights
of any other Person, except where the foregoing to be true would not have a
Material Adverse Effect.
(c) Except as set forth in Schedule 4.23, on the Effective
Date, none of the Intellectual Property owned by such Loan Party is the
subject of any licensing or franchise agreement pursuant to which such Loan
Party is the licensor or franchisor.
(d) No holding, decision or judgment has been rendered by
any Governmental Authority which would limit, cancel or question the validity
of, or such Loan Party's rights in, any Intellectual Property, except where
the foregoing to be true would not have a Material Adverse Effect.
(e) No action or proceeding seeking to limit, cancel or
question the validity of any Intellectual Property owned by such Loan Party or
such Loan Party's ownership interest therein is on the Effective Date pending
or, to the knowledge of such Loan Party, threatened. There are no claims,
judgments or settlements to be paid by such Loan Party relating to the
Intellectual Property.
ARTICLE V
FINANCIAL COVENANTS
Each of the Borrower and the other Loan Parties agrees with the Lenders, the
Issuers and the Administrative Agent to each of the following as long as any
Obligation or any Commitment remains outstanding:
Section 5.1. Minimum EBITDAR.
(a) (i) The Borrower shall have, as of the last day of each
Fiscal Month set forth below, EBITDAR for the twelve Fiscal Months ending on
such day (or with respect to the Fiscal Months ending on or before October 1,
2005, the period commencing on October 3, 2004 and ending on the last day of
such Fiscal Month) of not less than the amount set forth opposite such Fiscal
Month:
|--------------------------------------|----------------------------|
| Fiscal Month | Minimum EBITDAR |
| Ending on or Aroun|d | |
|--------------------------------------|----------------------------|
| March 31, 2005 | ($4,500,000) |
|--------------------------------------|----------------------------|
| April 30, 2005 | ($7,000,000) |
|--------------------------------------|----------------------------|
| May 31, 2005 | ($8,500,000) |
|--------------------------------------|----------------------------|
| June 30, 2005 | ($11,000,000) |
|--------------------------------------|----------------------------|
| July 31, 2005 | ($13,000,000) |
|--------------------------------------|----------------------------|
| August 31, 2005 | ($14,000,000) |
|--------------------------------------|----------------------------|
| September 30, 2005 | ($16,000,000) |
|--------------------------------------|----------------------------|
| October 31, 2005 | ($12,500,000) |
|--------------------------------------|----------------------------|
| November 30, 2005 | ($6,000,000) |
|--------------------------------------|----------------------------|
| December 31, 2005 | $0 |
|--------------------------------------|----------------------------|
(ii) The Borrower shall have, as of the last day of
the Fiscal Month ending on or around January 31, 2006 and each Fiscal
Month thereafter, EBITDAR for the twelve Fiscal Months ending on such
day of not less than amounts to be established by the Administrative
Agent, pursuant to the last paragraph of this Article V, in its sole
discretion exercised reasonably and in accordance with customary
business practices for its comparable asset based transactions.
(b) (i) The Borrower shall have, as of the last day of each
Fiscal Month set forth below, EBITDAR for the twelve Fiscal Months ending on
such day (or with respect to the Fiscal Months ending on or before October 1,
2005, the period commencing on October 3, 2004 and ending on the last day of
such Fiscal Month) of not less than the amount set forth opposite such Fiscal
Month:
|--------------------------------------|----------------------------|
| Fiscal Month | Minimum EBITDAR |
| Ending on or Around | |
|--------------------------------------|----------------------------|
| March 31, 2005 | ($5,250,000) |
|--------------------------------------|----------------------------|
| April 30, 2005 | ($7,750,000) |
|--------------------------------------|----------------------------|
| May 31, 2005 | ($9,250,000) |
|--------------------------------------|----------------------------|
| June 30, 2005 | ($11,750,000) |
|--------------------------------------|----------------------------|
| July 31, 2005 | ($13,750,000) |
|--------------------------------------|----------------------------|
| August 31, 2005 | ($14,750,000) |
|--------------------------------------|----------------------------|
| September 30, 2005 | ($16,750,000) |
|--------------------------------------|----------------------------|
| October 31, 2005 | ($13,250,000) |
|--------------------------------------|----------------------------|
| November 30, 2005 | ($6,750,000) |
|--------------------------------------|----------------------------|
| December 31, 2005 | ($750,000) |
|--------------------------------------|----------------------------|
(ii) The Borrower shall have, as of the last day of
the Fiscal Month ending on or around January 31, 2006 and each Fiscal
Month thereafter, EBITDAR for the twelve Fiscal Months ending on such
day of not less than amounts to be established by the Administrative
Agent, pursuant to the last paragraph of this Article V, in its sole
discretion exercised reasonably and in accordance with customary
business practices for its comparable asset based transactions;
provided, however, that the amounts established pursuant to this
Section 5.1(b)(ii) shall be less restrictive to the Borrower than the
amounts established pursuant to Section 5.1(a)(ii) for each Fiscal
Month by $750,000.
Section 5.2. Capital Expenditures.
(a) (i) The Borrower shall not permit Capital Expenditures
(other than Capital Expenditures permitted pursuant to Section 8.1(k)) to be
made or incurred during the calendar year ended December 31, 2005 to be in
excess of $5,000,000.
(ii) The Borrower shall not permit Capital
Expenditures (other than Capital Expenditures permitted pursuant to
Section 8.1(k)) to be made or incurred during the calendar year ended
December 31, 2006 and each calendar year thereafter to be in excess
of amounts to be established by the Administrative Agent, pursuant to
the last paragraph of this Article V, in its sole discretion
exercised reasonably and in accordance with customary business
practices for its comparable asset based transactions.
(b) (i) The Borrower shall not permit Capital Expenditures
(other than Capital Expenditures permitted pursuant to Section 8.1(k)) to be
made or incurred during the calendar year ended December 31, 2005, together
with any Capital Expenditures made or incurred pursuant to Section 5.2(a)(i),
to be in excess of $5,500,000.
(ii) The Borrower shall not permit Capital
Expenditures (other than Capital Expenditures permitted pursuant to
Section 8.1(k)) to be made or incurred during the calendar year ended
December 31, 2006 and each calendar year thereafter, together with
any Capital Expenditures made or incurred pursuant to Section
5.2(a)(ii), to be in excess of amounts to be established by the
Administrative Agent, pursuant to the last paragraph of this Article
V, in its sole discretion exercised reasonably and in accordance with
customary business practices for its comparable asset based
transactions; provided, however, that the amounts established
pursuant to this Section 5.2(b)(ii) shall be less restrictive to the
Borrower than the amounts established pursuant to Section 5.2(a)(ii)
for each calendar year by $500,000.
The Administrative Agent shall, in consultation with the
Borrower and ▇▇▇▇▇▇▇, establish the respective amounts for each of the
financial covenants referred to in Sections 5.1(a)(ii), 5.1(b)(ii), 5.2(a)(ii)
and 5.2(b)(ii) on or before January 15, 2006 based upon the Administrative
Agent's analysis of the Borrower's annual business plan for the calendar year
beginning January 1, 2006 delivered by the Borrower pursuant to Section 6.1(e)
(or, if the Borrower shall fail to deliver such annual business plan in
accordance with Section 6.1(e), based upon the Administrative Agent's analysis
of the most recent information available to the Administrative Agent). Such
analysis by the Administrative Agent and the establishment of such covenant
levels shall be conducted reasonably and in accordance with customary business
practices for its comparable asset based transactions. Upon the Administrative
Agent establishing the respective amounts for each of the financial covenants
referred to in Sections 5.1(a)(ii), 5.1(b)(ii), 5.2(a)(ii) and 5.2(b)(ii),
such amounts shall be deemed incorporated into such provisions of this
Agreement pursuant to an annex to this Agreement delivered by the
Administrative Agent to the Borrower.
ARTICLE VI
REPORTING COVENANTS
Each of the Borrower and the other Loan Parties agrees with
the Lenders, the Issuers and the Administrative Agent to each of the
following, as long as any Obligation or any Commitment remains outstanding:
SECTION 6.1. FINANCIAL STATEMENTS. The Borrower shall
furnish to the Administrative Agent (with sufficient copies for each of the
Lenders) each of the following:
(a) Monthly Reports. Within 30 days after the end of each
Fiscal Month, financial information regarding the Borrower and its
Subsidiaries consisting of Consolidated unaudited balance sheets as of the
close of such month and the related statements of income and cash flow for
such month and that portion of the current Fiscal Year ending as of the close
of such month, setting forth in comparative form the figures for the
corresponding period in the prior year and the figures contained in the
Interim Projections or, if applicable, the latest business plan provided
pursuant to clause (e) below for the current Fiscal Year, in each case
certified by a Responsible Officer of the Borrower as fairly presenting the
Consolidated financial position of the Borrower and its Subsidiaries as at the
dates indicated and the results of their operations and cash flow for the
periods indicated in accordance with GAAP (subject to the absence of footnote
disclosure and normal year-end audit adjustments and adjustments required in
connection with the resolution of the Borrower's outstanding accounting issues
with the agreement of the Borrower's Accountants).
(b) Annual Reports. As soon as available after the end of
each Fiscal Year, and in any event, after delivery of the financial
information required by clause (h) below, within 90 days after the end of each
Fiscal Year, financial information regarding the Borrower and its Subsidiaries
consisting of Consolidated balance sheets of the Borrower and its Subsidiaries
as of the end of such year and related statements of income and cash flows of
the Borrower and its Subsidiaries for such Fiscal Year, all prepared in
conformity with GAAP (subject to adjustments required in connection with the
resolution of the Borrower's outstanding accounting issues with the agreement
of the Borrower's Accountants) and certified, in the case of such Consolidated
Financial Statements, (i) prior to delivery of the financial information
required by clause (h) below, by a Responsible Officer of the Borrower as
fairly presenting the Consolidated financial position of the Borrower and its
Subsidiaries as at the dates indicated and the results of their operations and
cash flow for the periods indicated in accordance with GAAP (subject to
adjustments required in connection with the resolution of the Borrower's
outstanding accounting issues with the agreement of the Borrower's
Accountants), and (ii) after delivery of the restated financial information
required by clause (h) below, without qualification as to the scope of the
audit by the Borrower's Accountants, together with the report of such
accounting firm stating that (A) such Financial Statements fairly present the
Consolidated financial position of the Borrower and its Subsidiaries as at the
dates indicated and the results of their operations and cash flow for the
periods indicated in conformity with GAAP applied on a basis consistent with
prior years (except for changes with which the Borrower's Accountants shall
concur and that shall have been disclosed in the notes to the Financial
Statements), and (B) the examination by the Borrower's Accountants in
connection with such Consolidated Financial Statements has been made in
accordance with generally accepted auditing standards, and accompanied by a
certificate stating that in the course of the regular audit of the business of
the Borrower and its Subsidiaries such accounting firm has obtained no
knowledge that a Default or Event of Default in respect of the financial
covenants contained in Article V has occurred and is continuing, or, if in the
opinion of such accounting firm, a Default or Event of Default has occurred
and is continuing in respect of such financial covenants, a statement as to
the nature thereof.
(c) Compliance Certificate. Together with each delivery of
any Financial Statement pursuant to clauses (a) and (b) of this Section 6.1, a
certificate of a Responsible Officer of the Borrower (each, a "Compliance
Certificate") (i) showing in reasonable detail the calculations used in
demonstrating compliance with each of the financial covenants contained in
Article V which is tested on a monthly basis and (ii) stating that no Default
or Event of Default has occurred and is continuing or, if a Default or an
Event of Default has occurred and is continuing, stating the nature thereof
and the action that the Borrower proposes to take with respect thereto.
(d) Corporate Chart and Other Collateral Updates. Together
with each delivery of any Financial Statement pursuant to clause (a) or (b)
above, (i) a certificate of a Responsible Officer of the Borrower certifying
that the Corporate Chart attached thereto (or the last Corporate Chart
delivered pursuant to this clause (d) or otherwise) is true, correct, complete
and current as of the date of such Financial Statement and (ii) a certificate
of a Responsible Officer of the Borrower in form and substance reasonably
satisfactory to the Administrative Agent that all certificates, statements,
updates and other documents (including updated schedules) required to be
delivered pursuant to this Agreement or any Collateral Document by any Loan
Party in the preceding Fiscal Month have been delivered thereunder (or such
delivery requirement was otherwise duly waived or extended). The reporting
requirements set forth in this clause (d) are in addition to, and are not
intended to and shall not replace or otherwise modify, any obligation of any
Loan Party under any Loan Document (including other notice or reporting
requirements). Compliance with the reporting obligations in this clause (d)
shall only provide notice to the Administrative Agent and shall not, by
itself, modify any obligation of any Loan Party under any Loan Document,
update any Schedule to this Agreement or any schedule to any other Loan
Document or cure, or otherwise modify in any way, any failure to comply with
any covenant, or any breach of any representation or warranty, contained in
any Loan Document or any other Default or Event of Default.
(e) Business Plan. Not later than December 31 of each
calendar year, and containing substantially the types of financial information
contained in the Interim Projections, (i) the annual business plan of the
Borrower and its Subsidiaries for the period beginning on January 1 of the
next succeeding calendar year and ending on the second anniversary of the
Initial Closing Date approved by the Board of Directors of the Borrower, (ii)
forecasts prepared by management of the Borrower for each fiscal month in the
next succeeding calendar year, and (iii) forecasts prepared by management of
the Borrower for each of the succeeding calendar years through the calendar
year in which the Revolving Credit Termination Date is scheduled to occur,
including, in each instance described in clause (ii) and clause (iii) above,
(A) a projected year-end Consolidated balance sheet and income statement and
statement of cash flows and (B) a statement of all of the material assumptions
on which such forecasts are based.
(f) Management Letters, Etc. Promptly after receipt thereof
by any Loan Party, copies of each management letter, exception report or
similar letter or report received by such Loan Party from its independent
certified public accountants (including the Borrower's Accountants);
(g) Intercompany Loan Balances. Together with each delivery
of any Financial Statement pursuant to clause (a) of this Section 6.1, a
summary of the outstanding balance of all intercompany Indebtedness as of the
last day of the fiscal month covered by such Financial Statement, certified by
a Responsible Officer of the Borrower; provided, however, that such summary
shall not be required for intercompany Indebtedness among Loan Parties.
(h) Restated Financial Statements. As soon as available
audited restated financial statements regarding the Borrower and its
Subsidiaries for Fiscal Year 2002 and audited financial statements regarding
the Borrower and its Subsidiaries for the Fiscal Years 2003 and 2004, each
consisting of Consolidated balance sheets of the Borrower and its Subsidiaries
as of the end of each such Fiscal Year and related statements of income and
cash flows of the Borrower and its Subsidiaries for each such Fiscal Year, all
prepared in conformity with GAAP and certified, without qualification as to
the scope of the audit, by the Borrower's Accountants.
(i) Cash Flows. The Borrower shall deliver, as soon as
available and in any event not later than Monday of each week, a 13-week
rolling cash flow forecast, which forecast shall (i) detail projected cash
receipts and cash disbursements on a weekly basis for the current week and the
next 12 weeks, (ii) set forth in comparative form the actual cash receipts and
cash disbursements for the prior week and the variance from the projections
for such prior week and (iii) otherwise be in form and detail reasonably
satisfactory to the Administrative Agent.
SECTION 6.2. DEFAULT NOTICES. As soon as practicable, and in
any event within five Business Days after a Responsible Officer of any Loan
Party has actual knowledge of the existence of any Default, Event of Default
or other event having had a Material Adverse Effect or having any reasonable
likelihood of causing or resulting in a Material Adverse Change, the Borrower
shall give the Administrative Agent notice specifying the nature of such
Default or Event of Default or other event, including the anticipated effect
thereof, which notice, if given by telephone, shall be promptly confirmed in
writing on the next Business Day.
SECTION 6.3. LITIGATION. Promptly after the commencement
thereof, the Borrower shall give the Administrative Agent written notice of
the commencement of all actions, suits and proceedings before any domestic or
foreign Governmental Authority or arbitrator affecting the Borrower or any of
its Subsidiaries that (i) seeks injunctive or similar relief or (ii) in the
reasonable judgment of the Borrower or such Subsidiary, expose the Borrower or
such Subsidiary to liability in an amount aggregating $1,000,000 or more or
that, if adversely determined, would have a Material Adverse Effect.
SECTION 6.4. ASSET SALES. Prior to any Asset Sale whose Net
Cash Proceeds (or Dollar Equivalent thereof) are anticipated to exceed
$500,000 (other than in connection with a going out of business sale), the
Borrower shall send the Administrative Agent a notice (a) describing such
Asset Sale or the nature and material terms and conditions of such transaction
and (b) stating the estimated Net Cash Proceeds anticipated to be received by
the Borrower or any of its Subsidiaries.
SECTION 6.5. SEC FILINGS; PRESS RELEASES. Promptly after the
sending or filing thereof, the Borrower shall send the Administrative Agent
copies of (a) all reports that the Borrower sends to its security holders
generally, (b) all reports and registration statements that the Borrower or
any of its Subsidiaries files with the Securities and Exchange Commission or
any national or foreign securities exchange or the National Association of
Securities Dealers, Inc., (c) all press releases and (d) all other statements
concerning material changes or developments in the business of such Loan Party
made available by any Loan Party to the public or its creditors generally.
SECTION 6.6. LABOR RELATIONS. Promptly after becoming aware
of the same, the Borrower shall give the Administrative Agent written notice
of (a) any material labor dispute to which the Borrower or any of its
Subsidiaries is or may become a party, including any strikes, lockouts or
other disputes relating to any of such Person's plants and other facilities,
and (b) any Worker Adjustment and Retraining Notification Act or related
liability incurred with respect to the closing of any plant or other facility
of any such Person.
SECTION 6.7. TAX RETURNS. Upon the request of any Lender,
through the Administrative Agent, the Borrower shall provide copies of all
federal, state, local and foreign tax returns and reports filed by the
Borrower or any of its Subsidiaries in respect of taxes measured by income
(excluding sales, use and like taxes).
SECTION 6.8. INSURANCE. As soon as is practicable and in any
event within 90 days after the end of each Fiscal Year, and at such other
times requested by the Administrative Agent, the Borrower shall furnish the
Administrative Agent (in sufficient copies for each of the Lenders) with (a) a
report in form and substance reasonably satisfactory to the Administrative
Agent and the Lenders outlining all material insurance coverage maintained as
of the date of such report by the Borrower and its Subsidiaries and the
duration of such coverage and (b) an insurance broker's statement that all
premiums then due and payable with respect to such coverage have been paid and
confirming that the Administrative Agent has been named as loss payee or
additional insured, as applicable; provided, however, that unless a Default or
Event of Default shall be continuing, the Administrative Agent shall request
no more than two such reports during any calendar year.
SECTION 6.9. ERISA MATTERS. The Borrower shall furnish the
Administrative Agent (with sufficient copies for each of the Lenders) each of
the following:
(a) promptly and in any event within 30 days after the
Borrower, any of its Subsidiaries or any ERISA Affiliate knows that any ERISA
Event has occurred, written notice describing such event;
(b) promptly and in any event within 10 days after the
Borrower, any of its Subsidiaries or any ERISA Affiliate knows that a request
for a minimum funding waiver under Section 412 of the Code has been filed with
respect to any Title IV Plan or Multiemployer Plan, a written statement of a
Responsible Officer of the Borrower describing such ERISA Event or waiver
request and the action, if any, the Borrower, its Subsidiaries and ERISA
Affiliates propose to take with respect thereto and a copy of any notice filed
with the PBGC or the IRS pertaining thereto; and
(c) simultaneously with the date that the Borrower, any of
its Subsidiaries or any ERISA Affiliate files a notice of intent to terminate
any Title IV Plan, if such termination would require material additional
contributions in order to be considered a standard termination within the
meaning of Section 4041(b) of ERISA, a copy of each notice.
SECTION 6.10. ENVIRONMENTAL MATTERS. The Borrower shall
provide the Administrative Agent promptly and in any event within 10 days of
the Borrower or any Subsidiary of the Borrower learning of any of the
following, written notice of each of the following:
(a) that any Loan Party is or may be liable to any Person as
a result of a Release or threatened Release that could reasonably be expected
to subject such Loan Party to Environmental Liabilities and Costs whose Dollar
Equivalent shall exceed $1,000,000;
(b) the receipt by any Loan Party of notification that any
real or personal property of such Loan Party is or is reasonably likely to be
subject to any Environmental Lien;
(c) the receipt by any Loan Party of any notice of violation
of or potential liability under, or knowledge by such Loan Party that there
exists a condition that could reasonably be expected to result in a violation
of or liability under any Environmental Law, except for violations and
liabilities the consequence of which, in the aggregate, would not be
reasonably likely to subject the Loan Parties collectively to Environmental
Liabilities and Costs whose Dollar Equivalent shall exceed $1,000,000;
(d) the commencement of any judicial or administrative
proceeding or investigation alleging a violation of or liability under any
Environmental Law, that in the aggregate, if adversely determined, would have
a reasonable likelihood of subjecting the Loan Parties collectively to
Environmental Liabilities and Costs whose Dollar Equivalent shall exceed
$1,000,000;
(e) any proposed acquisition of stock, assets or real
estate, any proposed leasing of property, or any other action by any Loan
Party or any of its Subsidiaries other than those the consequences of which,
in the aggregate, have reasonable likelihood of subjecting the Loan Parties
collectively to Environmental Liabilities and Costs whose Dollar Equivalent
shall exceed $1,000,000;
(f) any proposed action by any Loan Party or any of its
Subsidiaries or any proposed change in Environmental Laws that in the
aggregate have a reasonable likelihood of requiring the Loan Parties to obtain
additional environmental, health or safety Permits or make additional capital
improvements to obtain compliance with Environmental Laws that in the
aggregate would have cost $1,000,000 or more or that shall subject the Loan
Parties to additional Environmental Liabilities and Costs whose Dollar
Equivalent shall exceed $1,000,000; and
(g) upon written request by any Lender through the
Administrative Agent, a report providing an update of the status of any
environmental, health or safety compliance, hazard or liability issue
identified in any notice or report delivered pursuant to this Agreement
immediately.
SECTION 6.11. BORROWING BASE DETERMINATION.
(a) The Borrower shall deliver, as soon as available and in
any event not later than Thursday of each week, a Borrowing Base Certificate
as of the close of business on the immediately prior Saturday, each executed
by a Responsible Officer of the Borrower.
(b) The Borrower shall conduct, or shall cause to be
conducted, at its expense and upon request of the Administrative Agent, such
appraisals, investigations and reviews as the Administrative Agent shall
request for the purpose of determining the Borrowing Base, all upon notice and
at such times during normal business hours and as often as may be reasonably
requested, and all of which appraisals, investigations and reviews shall (if
applicable) be prepared by third parties acceptable to and engaged by the
Administrative Agent; provided, however, that unless a Default or Event of
Default shall be continuing, the Administrative Agent shall request (i) no
more than four such appraisals, investigations and reviews with respect to the
Inventory of the Borrower and its Subsidiaries and (ii) no more than four such
appraisals, investigations and reviews with respect to the Accounts and
Installment Contracts of the Borrower and its Subsidiaries, in each case
during any calendar year; provided, further that, if requested by the
Borrower, the Administrative Agent will (unless the Administrative Agent
reasonably objects thereto), obtain or conduct such appraisals, investigations
and reviews at such additional times as the Borrower may reasonably request
(including after the completion of the Borrower's going-out-of-business sale
program). The Borrower shall furnish to the Administrative Agent any
information that the Administrative Agent may reasonably request regarding the
determination and calculation of the Borrowing Base including correct and
complete copies of any invoices, underlying agreements, instruments or other
documents and the identity of all Account Debtors in respect of Accounts
referred to therein.
(c) The Borrower shall promptly notify the Administrative
Agent in writing in the event that at any time a Responsible Officer of the
Borrower receives or otherwise gains knowledge that (i) the Borrowing Base is
less than 90% of the Borrowing Base reflected in the most recent Borrowing
Base Certificate delivered pursuant to clause (a) above or (ii) the
outstanding Revolving Credit Outstandings exceed the Borrowing Base as a
result of a decrease therein, in which case such notice shall also include the
amount of such excess.
(d) The Administrative Agent may, at the Borrower's sole
cost and expense, make test verifications of the Accounts and physical
verifications of the Inventory in any manner and through any medium that the
Administrative Agent considers advisable, and the Borrower shall furnish all
such assistance and information as the Administrative Agent may reasonably
require in connection therewith. At any time and from time to time, upon the
Administrative Agent's request and at the expense of the Borrower, the
Borrower shall cause independent public accountants or others satisfactory to
the Administrative Agent to furnish to the Administrative Agent reports
showing reconciliations, aging and test verifications of, and trial balances
for, the Accounts; provided, however, that unless a Default or Event of
Default shall be continuing, the Administrative Agent shall request no more
than four such reports during any calendar year.
SECTION 6.12. CUSTOMER CONTRACTS. Promptly after any Loan
Party becoming aware of the same, the Borrower shall give the Administrative
Agent written notice of any cancellation, termination or loss of any
post-petition material Contractual Obligation of a customer to a Loan Party or
other customer arrangement.
SECTION 6.13. TAX REPORTING. Promptly after the Borrower
determines that it intends to treat the Loans and the Letters of Credit and
the related transactions contemplated hereby as a "reportable transaction"
within the meaning of Treasury Regulation Section 1.6011-4 of the Code, the
Borrower shall give the Administrative Agent written notice thereof and shall
deliver to the Administrative Agent all IRS forms required in connection
therewith.
SECTION 6.14. BANKRUPTCY COURT. The Borrower shall deliver
to the Administrative Agent and the Administrative Agent's counsel all
material pleadings, motions and other documents filed on behalf of any of the
Loan Parties with the Bankruptcy Court.
SECTION 6.15. OTHER INFORMATION. The Borrower shall provide
the Administrative Agent or any Lender with such other information respecting
the business, properties, condition, financial or otherwise, or operations of
the Borrower or any of its Subsidiaries as the Administrative Agent, any
Revolving Credit Lender through the Administrative Agent or any Term Loan
Lender may from time to time reasonably request.
ARTICLE VII
AFFIRMATIVE COVENANTS
Each of the Borrower and the other Loan Parties agrees with
the Lenders, the Issuers and the Administrative Agent to each of the
following, as long as any Obligation or any Commitment remains outstanding:
SECTION 7.1. PRESERVATION OF CORPORATE EXISTENCE, ETC. Such
Loan Party shall, and shall cause each of its Subsidiaries to, preserve and
maintain its legal existence, rights (charter and statutory) and franchises,
except as permitted by Sections 8.4 and 8.7 or where the failure to maintain
such rights or franchises would not have a Material Adverse Effect.
SECTION 7.2. COMPLIANCE WITH LAWS, ETC. Such Loan Party
shall, and shall cause each of its Subsidiaries to, comply with all applicable
Requirements of Law, post-petition Contractual Obligations and Permits, except
where the failure so to comply would not in the aggregate have a Material
Adverse Effect.
SECTION 7.3. CONDUCT OF BUSINESS. Such Loan Party shall, and
shall cause each of its Subsidiaries to, (a) conduct its business in the
ordinary course consistent with past practice and (b) use its reasonable
efforts, in the ordinary course and consistent with past practice, to preserve
its business and the goodwill and business of the customers, advertisers,
suppliers and others having business relations with such Loan Party or any of
its Subsidiaries, except in each case where the failure to comply with the
covenants in each of clauses (a) and (b) above would not in the aggregate have
a Material Adverse Effect.
SECTION 7.4. PAYMENT OF TAXES, ETC. Such Loan Party shall,
and shall cause each of its Subsidiaries to, pay and discharge before the same
shall become delinquent, all material lawful governmental claims, taxes,
assessments, charges and levies arising after the Petition Date, except where
contested in good faith, by proper proceedings and adequate reserves therefor
have been established on the books of such Loan Party or the appropriate
Subsidiary in conformity with GAAP.
SECTION 7.5. MAINTENANCE OF INSURANCE. Such Loan Party shall
(a) maintain, and cause to be maintained for each of its Subsidiaries,
insurance with responsible and reputable insurance companies or associations
in such amounts and covering such risks as is usually carried by companies
engaged in similar businesses and owning similar properties in the same
general areas in which such Loan Party or such Subsidiary operates, and such
other insurance as may be reasonably requested by the Requisite Lenders, and,
in any event, all insurance required by any Loan Document and (b) cause all
such insurance to name the Administrative Agent on behalf of the Secured
Parties as additional insured or loss payee, as appropriate, and to provide
that no cancellation, material addition in amount or material change in
coverage shall be effective until after 30 days' written notice thereof to the
Administrative Agent.
SECTION 7.6. ACCESS. Such Loan Party shall, and shall cause
each of its Subsidiaries to, from time to time permit the Administrative Agent
and the Lenders, or any agents or representatives thereof, within three
Business Days after written notification of the same (except that during the
continuance of an Event of Default, no such notice shall be required) to (a)
examine and make copies of and abstracts from the records and books of account
of such Loan Party and each of its Subsidiaries, (b) visit the properties of
such Loan Party and each of its Subsidiaries, (c) discuss the affairs,
finances and accounts of such Loan Party and each of its Subsidiaries with any
of their respective officers or directors, and (d) communicate directly with
any of such Loan Party's certified public accountants (including the
Borrower's Accountants). Such Loan Party shall authorize its certified public
accountants (including the Borrower's Accountants) to disclose to the
Administrative Agent or any Lender any and all financial statements and other
information of any kind, as the Administrative Agent or any Lender reasonably
requests and that such accountants may have with respect to the business,
financial condition, results of operations or other affairs of such Loan Party
or any of its Subsidiaries.
SECTION 7.7. KEEPING OF BOOKS. Such Loan Party shall, and
shall cause each of its Subsidiaries to, keep proper books of record and
account, in which full and correct entries shall be made in conformity with
GAAP of all financial transactions and the assets and business of such Loan
Party and each such Subsidiary.
SECTION 7.8. MAINTENANCE OF PROPERTIES, ETC. Except as
otherwise required by the Bankruptcy Code, such Loan Party shall, and shall
cause each of its Subsidiaries to, maintain and preserve (a) all of its
properties which are necessary in the conduct of its business in good working
order and condition, (b) all rights, permits, licenses, approvals and
privileges (including all Permits) which are used or useful or necessary in
the conduct of its business, and (c) all Intellectual Property with respect to
its business, except where failure to so maintain and preserve the items set
forth in clauses (a), (b) and (c) above would not, in the aggregate, have a
Material Adverse Effect.
SECTION 7.9. APPLICATION OF PROCEEDS. The Borrower (and, to
the extent distributed to them by the Borrower, each other Loan Party) shall
use the entire amount of the proceeds of the Loans as provided in Section
4.12.
SECTION 7.10. ENVIRONMENTAL. Except as otherwise required by
the Bankruptcy Code or where the failure of the Loan Parties to do so would
not have a Material Adverse Effect, such Loan Party shall, and shall cause
each of its Subsidiaries to comply in all material respects with Environmental
Laws and, without limiting the foregoing, such Loan Party shall, at its sole
cost and expense, upon receipt of any notification or otherwise obtaining
knowledge of any Release or other event that has any reasonable likelihood of
such Loan Party or any of its Subsidiaries incurring Environmental Liabilities
and Costs that would have a Material Adverse Effect (a) conduct, or pay for
consultants to conduct, tests or assessments of environmental conditions at
such operations or properties, including the investigation and testing of
subsurface conditions and (b) take such Remedial Action and undertake such
investigation or other action as required by Environmental Laws or as any
Governmental Authority requires or as is appropriate and consistent with good
business practice to address the Release or event and otherwise ensure
compliance with Environmental Laws.
SECTION 7.11. ADDITIONAL COLLATERAL AND GUARANTIES.
To the extent not delivered to the Administrative Agent on
or before the Effective Date (including in respect of after-acquired property
and Persons that become Subsidiaries of any Loan Party after the Effective
Date), each Loan Party agrees promptly to do, or cause each Subsidiary of such
Loan Party to do, each of the following, unless otherwise agreed by the
Administrative Agent:
(a) deliver to the Administrative Agent a duly-executed
Joinder Agreement (or, in the case of any Subsidiary of any Loan Party that is
not a Domestic Subsidiary or that holds shares in any Person that is not a
Domestic Subsidiary, foreign guarantees and related documents), in each case
in form and substance reasonably satisfactory to the Administrative Agent and
as the Administrative Agent deems necessary or advisable in order to ensure
that each Subsidiary of each Loan Party guaranties, as primary obligor and not
as surety, the full and punctual payment when due of the Obligations or any
part thereof; provided, however, that, unless (x) the Borrower and the
Administrative Agent otherwise agree, or (y) such guaranty can be given
without resulting in any material adverse tax consequences for the Loan
Parties and their Subsidiaries, taken as a whole (including any Person that
becomes a Loan Party as a result of such pledge or grant), in no event shall
any Non-U.S. Person be required to guaranty or secure the payment of the
Obligations;
(b) deliver to the Administrative Agent a duly-executed
Joinder Agreement and, if applicable, joinders and amendments to the other
Collateral Documents (or, in the case of any such Subsidiary of any Loan Party
that is not a Domestic Subsidiary or that holds shares in any Person that is
not a Domestic Subsidiary, foreign charges, pledges, security agreements and
other Collateral Documents), in each case in form and substance reasonably
satisfactory to the Administrative Agent and as the Administrative Agent deems
necessary or advisable in order to (i) effectively grant to the Administrative
Agent, for the benefit of the Secured Parties, a valid, perfected and
enforceable first-priority security interest in the Stock and Stock
Equivalents and other debt Securities owned by any Loan Party or any
Subsidiary of any Loan Party and (ii) effectively grant to the Administrative
Agent, for the benefit of the Secured Parties, a valid, perfected and
enforceable first-priority security interest in all property interests and
other assets of any Loan Party or any Subsidiary of any Loan Party; provided,
however, that, unless (x) the Borrower and the Administrative Agent otherwise
agree or (y) such pledge or grant can be made without resulting in any
material adverse tax consequences for the Loan Parties and their Subsidiaries,
taken as a whole (including any Person that becomes a Loan Party as a result
of such pledge or grant), in no event shall any Loan Party or any Subsidiary
thereof be required to pledge (i) in excess of 65% of the outstanding Voting
Stock of any Non-U.S. Person that is a direct Subsidiary of the Borrower or of
any Subsidiary of the Borrower that is a Domestic Person or (ii) unless such
Stock is otherwise held by the Borrower or any Subsidiary of the Borrower that
is a Domestic Person, any of the Stock of any a Subsidiary of such direct
Subsidiary;
(c) deliver to the Administrative Agent all certificates,
instruments and other documents representing all Pledged Stock, Pledged Notes
(other than those Pledged Notes issued by officers of the Loan Parties prior
to the Petition Date which are not in the custody of the Loan Parties or any
agent under the Existing Credit Agreement) and all other Stock, Stock
Equivalents and other debt Securities being pledged pursuant to the Joinder
Agreement, joinders, amendments and foreign agreements executed pursuant to
clause (b) above, together with (i) in the case of certificated Pledged Stock
and other certificated Stock and Stock Equivalents, undated stock powers
endorsed in blank and (ii) in the case of Pledged Notes and other certificated
debt Securities, endorsed in blank, in each case executed and delivered by a
Responsible Officer of such Loan Party or such Subsidiary thereof, as the case
may be;
(d) if such Subsidiary is party to a Case, to obtain an
order of the Bankruptcy Court confirming in such Subsidiary's Case extension
of the terms of the Orders to such new Subsidiary as a debtor and a debtor in
possession;
(e) to take such other actions necessary or advisable to
ensure the validity or continuing validity of the guaranties required to be
given pursuant to clause (a) above or to create, maintain or perfect the
security interest required to be granted pursuant to clause (b) above,
including the filing of UCC financing statements in such jurisdictions as may
be required by the Collateral Documents or by law or as may be reasonably
requested by the Administrative Agent; and
(f) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent;
provided, however, that the requirements of this Section 7.11 shall not be
applicable to FCJV, L.P. so long as it has no assets.
SECTION 7.12. CONTROL ACCOUNTS; APPROVED DEPOSIT ACCOUNTS.
(a) Each such Loan Party shall, and shall cause each of its
Subsidiaries to, (x) deposit or cause to be deposited in the Cash
Concentration Account all cash they receive within one Business Day of such
receipt; provided, however, that such period shall be extended to two Business
Days in the case of any such cash which is deposited in, or transferred to, an
Approved Deposit Account prior to it being transferred to the Cash
Concentration Account, (y) not establish or maintain any Securities Account
that is not a Control Account and (z) not establish or maintain any Deposit
Account (other than Deposit Accounts existing on the date hereof) other than
with a Deposit Account Bank; provided, however, that such Loan Party and each
of its respective Subsidiaries may (A) maintain payroll, withholding tax,
escrow and other fiduciary accounts, (B) maintain accounts with the
Administrative Agent, (C) maintain ▇▇▇▇▇ cash at stores in the ordinary course
of business and consistent with past practice in all material respects in an
aggregate amount not to exceed $350,000, (D) maintain balances in accounts in
respect of items that have not yet cleared or to fund pending disbursements
from such accounts, (E) maintain cash balances in a segregated account with
Bank of America, N.A. solely as collateral for Automatic Clearinghouse (ACH)
functions performed by Bank of America, N.A. with respect to any Loan Party as
long as the aggregate balance in such account does not exceed $1,500,000 and
(F) maintain other accounts with cash balances as long as the aggregate
balance in all such accounts does not exceed $500,000.
(b) Each such Loan Party shall, and shall cause each of its
Subsidiaries to, (x) from and after June 15, 2005 (or such later date as
approved by the Administrative Agent in its sole discretion), instruct each
Account Debtor or other Person obligated to make a payment to any of them
under any Account or General Intangible to make payment, or to continue to
make payment, to the Cash Concentration Account or an Approved Deposit Account
that directly or indirectly sweeps collected and cleared funds to the Cash
Concentration Account on each Business Day (except with respect to retail
purchasers making payments pursuant to installment sale contracts) and (y)
except to the extent such Proceeds are maintained in accordance with the
proviso in clause (a) above, deposit in the Cash Concentration Account, an
Approved Deposit Account or another deposit account that directly or
indirectly sweeps collected and cleared funds to the Cash Concentration
Account on each Business Day immediately upon receipt all Proceeds of such
Accounts and General Intangibles received by such Loan Party or any of its
respective Subsidiaries from any other Person.
(c) In the event (i) any Loan Party, any Subsidiary of any
Loan Party or any Deposit Account Bank shall, after the date hereof, terminate
an agreement with respect to the maintenance of an Approved Deposit Account
for any reason, (ii) the Administrative Agent shall demand such termination as
a result of the failure of a Deposit Account Bank to comply with the terms of
the applicable Deposit Account Control Agreement or (iii) the Administrative
Agent determines in its sole discretion that the financial condition of a
Deposit Account Bank has materially deteriorated, each Loan Party shall, and
shall cause each of its Subsidiaries to, notify all of their respective
obligors that were making payments to such terminated Approved Deposit Account
to make all future payments to another Approved Deposit Account.
(d) In the event (i) any Loan Party, any Subsidiary of any
Loan Party or any Approved Securities Intermediary shall, after the date
hereof, terminate an agreement with respect to the maintenance of a Control
Account for any reason, (ii) the Administrative Agent shall demand such
termination as a result of the failure of an Approved Securities Intermediary
to comply with the terms of the applicable Securities Account Control
Agreement or (iii) the Administrative Agent determines in its sole discretion
that the financial condition of an Approved Securities Intermediary has
materially deteriorated, each Loan Party shall, and shall cause each of its
Subsidiary to, notify all of its obligors that were making payments to such
terminated Control Account to make all future payments to another Control
Account.
(e) The Administrative Agent may establish one or more Cash
Collateral Accounts with such depositaries and Securities Intermediaries as it
in its sole discretion shall determine. The Borrower agrees that each such
Cash Collateral Account shall be under the sole dominion and control of the
Administrative Agent and that the Administrative Agent shall be the
Entitlement Holder with respect to each such Cash Collateral Account that is a
Securities Account and the only Person authorized to give Entitlement Orders
with respect to each such Securities Account. Without limiting the foregoing,
funds on deposit in any such Cash Collateral Account may be invested (but the
Administrative Agent shall be under no obligation to make any such investment)
in Cash Equivalents at the direction of the Administrative Agent and, except
during the continuance of an Event of Default, the Administrative Agent agrees
with the Borrower to issue Entitlement Orders for such investments in Cash
Equivalents as requested by the Borrower; provided, however, that the
Administrative Agent shall not have any responsibility for, or bear any risk
of loss of, any such investment or income thereon. None of the Borrower, any
Subsidiary of the Borrower or any other Loan Party or Person claiming on
behalf of or through the Borrower, any Subsidiary of the Borrower or any other
Loan Party shall have any right to demand payment of any funds held in any
Cash Collateral Account at any time prior to the termination of all
outstanding Letters of Credit and the payment in full of all then outstanding
and payable monetary Obligations. The Administrative Agent shall apply all
funds on deposit in a Cash Collateral Account as provided in Section 2.9(d)
(Mandatory Prepayments).
SECTION 7.13. LANDLORD WAIVERS AND BAILEE'S LETTERS. Such
Loan Party shall, and shall cause each of its Subsidiaries to deliver such
Landlord Waivers and Bailee's Letters as the Administrative Agent shall
request in its sole discretion exercised reasonably with respect to any
Collateral that is located in a public warehouse or in possession of a bailee
or in a facility leased by a Loan Party and the Liens and other unstayed
rights of the applicable warehouseman, bailee, or lessor are senior to or pari
passu with the Liens of the Administrative Agent.
SECTION 7.14. PLAN OF REORGANIZATION. The Loan Parties shall
file a Plan of Reorganization with the Bankruptcy Court on or before February
28, 2006, which Plan of Reorganization shall permit any conversion or
repayment in cash of the Term Loans required by Section 2.19, and concurrently
therewith the Borrower shall deliver to the Term Loan Lender (x) to the extent
financing is required for such Plan of Reorganization, a copy of a valid and
executed commitment letter (subject to customary conditions) from a financial
institution or other plan sponsor evidencing a commitment from such person to
finance such plan of reorganization by way of a loan or other cash infusion
and (y) a certificate signed by a senior officer of the Borrower certifying
that the Borrower reasonably believes in good faith that such Plan of
Reorganization is feasible and likely to be confirmed within a reasonable
time. In addition, the Borrower shall thereafter pursue the timely
confirmation of such Plan of Reorganization in good faith; provided, that if
the Borrower subsequently loses its financing commitment or otherwise believes
in good faith that such Plan of Reorganization is no longer likely to be
confirmed within a reasonable time, the Borrower shall have 60 days within
which to file another Plan of Reorganization that otherwise satisfies the
requirements of this Section 7.14.
ARTICLE VIII
NEGATIVE COVENANTS
Each of the Borrower and the other Loan Parties agrees with
the Lenders, the Issuers and the Administrative Agent to each of the
following, as long as any Obligation or any Commitment remains outstanding:
SECTION 8.1. INDEBTEDNESS. Such Loan Party shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly create,
incur, assume or otherwise become or remain directly or indirectly liable with
respect to any Indebtedness except for the following:
(a) the Secured Obligations (other than in respect of
Hedging Contracts not permitted to be incurred pursuant to clause (i) below)
and Guaranty Obligations in respect thereto;
(b) Indebtedness existing on the Initial Closing Date and
disclosed on Schedule 8.1;
(c) Guaranty Obligations incurred by the Borrower or any
Subsidiary Guarantor in respect of Indebtedness of the Borrower or any
Subsidiary Guarantor that is otherwise permitted by this Section 8.1 (other
than clause (a) above);
(d) Capital Lease Obligations and purchase money
Indebtedness incurred by such Loan Party or a Subsidiary of such Loan Party
after the Petition Date to finance the acquisition of fixed assets; provided,
however, that the Capital Expenditure related thereto is otherwise permitted
by Section 5.2 (Capital Expenditures) and that the Dollar Equivalent of the
aggregate outstanding principal amount of all such Capital Lease Obligations
and purchase money Indebtedness shall not exceed $1,000,000 (or such higher
amount as may be agreed to by the Administrative Agent) at any time;
(e) Renewals, extensions, refinancings and refundings of
Indebtedness incurred after the Petition Date and permitted by clause (d) of
this Section 8.1; provided, however, that any such renewal, extension,
refinancing or refunding is in an aggregate principal amount not greater than
the principal amount of, and is on terms no less favorable to the Borrower or
any Subsidiary of the Borrower obligated thereunder, including as to weighted
average maturity and final maturity, than the Indebtedness being renewed,
extended, refinanced or refunded;
(f) Indebtedness arising from intercompany loans (i) from
the Borrower to any Subsidiary Guarantor, (ii) from any Subsidiary Guarantor
to the Borrower or any other Subsidiary Guarantor, (iii) from any Subsidiary
of the Borrower that is not a Subsidiary Guarantor to the Borrower or to any
other Subsidiary of the Borrower or (iv) from the Borrower or any Subsidiary
Guarantor to any Subsidiary of the Borrower that is not a Subsidiary
Guarantor; provided, however, that, in the case of clause (iv), the Investment
in the intercompany loan to such Subsidiary is permitted under Section 8.3;
(g) Indebtedness arising under any performance or surety
bond entered into in the ordinary course of business;
(h) Obligations under Hedging Contracts permitted under
Section 8.17 (No Speculative Transactions);
(i) the assumption of Indebtedness under the Vendor Lien
Program on such terms as are agreed upon by the Loan Parties and the
applicable vendors, but only to the extent such assumption constitutes a
Permitted Transaction;
(j) Indebtedness which constitute Investments permitted by
Section 8.3 (other than clause (g) thereof);
(k) Capital Lease Obligations and purchase money
Indebtedness incurred by the Loan Parties to finance the acquisition of a
point of sale system; provided, however, that (i) the aggregate outstanding
principal amount of all such Capital Lease Obligations and purchase money
Indebtedness shall not exceed $5,000,000 and (ii) promptly after the execution
thereof, the Borrower shall have delivered to the Administrative Agent true
and correct copies of all agreements, documents or instruments at any time
executed and/or delivered by the Borrower or any of its Subsidiaries in
connection therewith or related thereto; and
(l) Indebtedness not otherwise permitted hereby in an
aggregate outstanding amount not to exceed $1,000,000 at any time.
SECTION 8.2. LIENS, ETC. Such Loan Party shall not, and
shall not permit any of its Subsidiaries to, create or suffer to exist, any
Lien upon or with respect to any of its properties or assets, whether now
owned or hereafter acquired, or assign, or permit any of its Subsidiaries to
assign, any right to receive income, except for the following:
(a) Liens created pursuant to the Loan Documents;
(b) Liens existing on the Initial Closing Date and disclosed
on Schedule 8.2 which (except for the purchase money Lien on the Chief
Executive Office) are fully subordinated to the Liens of the Administrative
Agent pursuant to the Orders;
(c) Customary Permitted Liens on the assets of the Borrower
and its Subsidiaries;
(d) (i) purchase money Liens granted by such Loan Party or
any Subsidiary of such Loan Party (including the interest of a lessor under a
Capital Lease and purchase money Liens to which any property is subject at the
time, on or after the date hereof, of such Loan Party's or such Subsidiary's
acquisition thereof) securing Indebtedness permitted under Section 8.1(d) and
limited in each case to the property purchased with the proceeds of such
purchase money Indebtedness or subject to such Capital Lease; and (ii) Liens
granted by such Loan Party or any Subsidiary of such Loan Party securing
Capital Lease Obligations and purchase money Indebtedness permitted under
Section 8.1(k) and limited in each case to the property subject to such
Capital Lease or purchased with the proceeds of such purchase money
Indebtedness;
(e) deposits or letters of credit, in favor of lessors
securing operating leases or, to the extent such transactions create a Lien
hereunder, sale and leaseback transactions, in each case to the extent such
operating leases or sale and leaseback transactions are permitted hereunder;
(f) Liens on the Collateral granted as adequate protection
or with respect to the Vendor Lien Program pursuant to an order of the
Bankruptcy Court entered on or prior to the Initial Closing Date or with the
approval of the Administrative Agent; provided, however, that all such Liens
granted after the Initial Closing Date shall be on terms acceptable to the
Administrative Agent, including with respect to the subordination of all such
Liens to the Liens of the Administrative Agent, and shall not permit the
holder of any such Lien to object to any disposition of any of the Collateral,
whether such disposition is made pursuant to a foreclosure by the
Administrative Agent or otherwise;
(g) Liens granted pursuant to the Vendor Lien Program to the
extent constituting a Permitted Transaction;
(h) Liens in respect of the Carve-Out;
(i) Liens on goods consigned to a Loan Party or their
Subsidiaries in connection with consignment arrangements, provided, that (i)
such consignment arrangement entered into after the date of this Agreement is
evidenced by a written agreement in form and substance satisfactory to the
Administrative Agent and (ii) such Lien is limited to such goods only during
any such consignment; and
(j) Liens of landlords arising by statute and liens of
suppliers, mechanics, carriers, materialmen, warehousemen or workmen and other
liens imposed by law created in the ordinary course of business for amounts
that are prepetition claims, that are not overdue for a period of more than 60
days or that are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves or other appropriate provisions are
being maintained to the extent required by GAAP.
SECTION 8.3. INVESTMENTS. Such Loan Party shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly make or
maintain any Investment except for the following:
(a) Investments existing on the Initial Closing Date and
disclosed on Schedule
8.3;
(b) Investments in cash and Cash Equivalents with respect to
which the Administrative Agent has a valid, perfected and enforceable first
priority Lien subject only to the Carve-Out;
(c) Investments in Payment Intangibles, Chattel Paper and
Accounts, notes receivable and similar items arising or acquired in the
ordinary course of business consistent in all material respects with the past
practice of such Loan Party and its Subsidiaries;
(d) Investments received in settlement of amounts due to
such Loan Party or any Subsidiary of such Loan Party created in the ordinary
course of business;
(e) Investments by (i) the Borrower in any Subsidiary
Guarantor, or any Subsidiary Guarantor in the Borrower or in any other
Subsidiary Guarantor, (ii) a Subsidiary of the Borrower that is not a
Subsidiary Guarantor in the Borrower or in any other Subsidiary of the
Borrower or, (iii) the Borrower or any Subsidiary Guarantor in a Subsidiary
that is not a Subsidiary Guarantor; provided, however, that the aggregate
outstanding amount of all Investments permitted pursuant to this clause (iii)
shall not exceed $250,000 at any time;
(f) loans or advances to employees of such Loan Party or any
of its Subsidiaries in the ordinary course of business as presently conducted
other than any loans or advances that would be in violation of Section 402 of
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; provided, however, that the Dollar Equivalent of the
aggregate principal amount of all loans and advances permitted pursuant to
this clause (f) shall not exceed $250,000 at any time;
(g) Indebtedness and Guaranty Obligations permitted by
Section 8.1;
(h) Investments received in connection with the conversion,
exchange or settlement (as part of a plan of reorganization of any Crescent
Party or otherwise) of Investments disclosed on Schedule 8.3 or claims against
any Crescent Party pursuant to Permitted Transactions;
(i) Investments to fund Capital Expenditures permitted by
Section 5.2; and
(j) Investments not otherwise permitted hereby in an
aggregate outstanding amount not to exceed $250,000 at any time.
SECTION 8.4. SALE OF ASSETS. Such Loan Party will not, and
will not permit any of its Subsidiaries to, sell, convey, transfer, lease or
otherwise dispose of, any of its assets or any interest therein (including the
sale or factoring at maturity, but excluding collection, of any accounts) to
any Person, or permit or suffer any other Person to acquire any interest in
any of its assets or issue or sell any shares of their Stock or any Stock
Equivalents (any such disposition being an "Asset Sale"), except for the
following:
(a) the sale or disposition of Inventory in the ordinary
course of business;
(b) the sale or disposition of Equipment that has become
obsolete or is replaced in the ordinary course of business;
(c) a true lease or sublease of Real Property not
constituting indebtedness and not constituting a sale and leaseback
transaction;
(d) assignments and licenses of Intellectual Property of the
Borrower and its Subsidiaries in the ordinary course of business;
(e) Permitted Transactions;
(f) the disposition of Cash Equivalents in the ordinary
course of business;
(g) any Asset Sale between Loan Parties or, on an
arms-length basis, from a Subsidiary of the Borrower that is not a Subsidiary
Guarantor to the Borrower or to any other Subsidiary of the Borrower; and
(h) the disposition of assets in the ordinary course of
business in connection with the closure of up to 10 retail stores each
calendar year;
provided further, that the foregoing limitations are not intended to prevent
such Loan Party from rejecting unexpired leases or executory contracts
pursuant to section 365 of the Bankruptcy Code in connection with the Cases.
SECTION 8.5. RESTRICTED PAYMENTS. Such Loan Party shall not,
and shall not permit any of its Subsidiaries to, directly or indirectly,
declare, order, pay, make or set apart any sum for any Restricted Payment
except for Restricted Payments by any Subsidiary of the Borrower to the
Borrower or any Subsidiary Guarantor.
SECTION 8.6. RESTRICTION ON FUNDAMENTAL CHANGES. Such Loan
Party shall not, and shall not permit any of its Subsidiaries to (a) merge
with any Person, (b) consolidate with any Person, (c) acquire all or
substantially all of the Stock or Stock Equivalents of any Person, (d) acquire
all or substantially all of the assets of any Person or all or substantially
all of the assets constituting the business of a division, branch or other
unit operation of any Person, (e) enter into any joint venture or partnership
with any Person or (f) acquire or create any Subsidiary unless, after giving
effect to such creation or acquisition, such Subsidiary is a Wholly-Owned
Subsidiary of the Borrower (unless such Subsidiary becomes a Subsidiary
pursuant to a Permitted Transaction), the Borrower is in compliance with
Section 7.11 and the Investment in such Subsidiary is permitted under Section
8.3(c).
SECTION 8.7. CHANGE IN NATURE OF BUSINESS. Such Loan Party
shall not, and shall not permit any of its Subsidiaries to, make any material
change in the nature of its business as carried on at the date hereof.
SECTION 8.8. TRANSACTIONS WITH AFFILIATES. Such Loan Party
shall not, and shall not permit any of its Subsidiaries to, except with
respect to the transactions disclosed on Schedule 8.8, for Permitted
Transactions or as otherwise expressly permitted herein, do any of the
following: (a) make any Investment in an Affiliate of the Borrower which is
not a Subsidiary of the Borrower; (b) transfer, sell, lease, assign or
otherwise dispose of any asset to any Affiliate of the Borrower which is not a
Subsidiary of the Borrower; (c) merge into or consolidate with or purchase or
acquire assets from any Affiliate of the Borrower which is not a Subsidiary of
the Borrower; (d) repay any Indebtedness to any Affiliate of the Borrower
which is not a Subsidiary of the Borrower; or (e) enter into any other
transaction directly or indirectly with or for the benefit of any Affiliate of
the Borrower which is not a Subsidiary Guarantor (including guaranties and
assumptions of obligations of any such Affiliate), except for, in the case of
clause (e), (i) transactions in the ordinary course of business on a basis no
less favorable to the Borrower or such Subsidiary Guarantor as would be
obtained in a comparable arm's length transaction with a Person not an
Affiliate thereof, (ii) salaries and other director or employee compensation
to officers or directors of the Borrower or any of its Subsidiaries and (iii)
transactions with ▇▇▇▇▇▇▇ and its Affiliates on an arm's length basis.
SECTION 8.9. RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS; NO
NEW NEGATIVE PLEDGE. Except pursuant to the Loan Documents, any pre-petition
Contractual Obligations subject to the automatic stay and any agreements
governing purchase money Indebtedness or Capital Lease Obligations permitted
by clause (d) or (e) of Section 8.1 (in which latter case, any prohibition or
limitation shall only be effective against the assets financed thereby), such
Loan Party shall not, and shall not permit any of its Subsidiaries to, (a)
agree to enter into or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of such Subsidiary to
pay dividends or make any other distribution or transfer of funds or assets or
make loans or advances to or other Investments in, or pay any Indebtedness
owed to, the Borrower or any other Subsidiary of the Borrower or (b) enter
into or suffer to exist or become effective any agreement prohibiting or
limiting the ability of the Borrower or any Subsidiary of the Borrower to
create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, to secure the
Obligations, including any agreement requiring any other Indebtedness or
Contractual Obligation to be equally and ratably secured with the Obligations.
SECTION 8.10. RESTRICTIONS ON MODIFICATION OF CERTAIN
DOCUMENTS AND OPTIONAL PREPAYMENTS.
(a) Such Loan Party shall not, and shall not permit any of
its Subsidiaries to, change its capital structure (including in the terms of
its outstanding Stock) or otherwise amend its Constituent Documents, except
for (i) changes and amendments which do not materially affect the rights and
privileges of such Loan Party or any of its Subsidiaries, and do not
materially affect the interests of the Administrative Agent, the Lenders and
the Issuers under the Loan Documents or in the Collateral, (ii) changes
pursuant to a Plan of Reorganization and (iii) changes that are otherwise
expressly permitted in this Agreement.
(b) Such Loan Party shall not, and shall not permit any of
its Subsidiaries to, (i) make or offer to make any optional or voluntary
payment, prepayment, repurchase or redemption of, or otherwise voluntarily or
optionally defease, any Indebtedness, or segregate funds for any such payment,
prepayment, repurchase, redemption or defeasance (except in each case (A) in
respect of the Loans, (B) to the extent permitted by Section 8.1(e) and (C)
with respect to the Vendor Lien Program to the extent it is a Permitted
Transaction), (ii) amend, modify or otherwise change, or consent or agree to
any amendment, modification, waiver or other change to, any of the terms of
any Indebtedness (other than (A) any such amendment, modification, waiver or
other change which (Y) would extend the maturity or reduce the amount of any
payment of principal thereof, reduce the rate or extend the date for payment
of interest thereon or relax any covenant or other restriction applicable to
the Borrower or any of its Subsidiaries and (Z) does not involve the payment
of a consent fee) or (B) with respect to the Vendor Lien Program to the extent
it is a Permitted Transaction), or (iii) amend, modify or otherwise change, or
consent or agree to any amendment, modification, waiver or other change to,
any of the terms of the Vendor Lien Program (other than (A) any such
amendment, modification, waiver or other change which (Y) would extend the
maturity or reduce the amount of any payment of principal thereof, reduce the
rate or extend the date for payment of interest thereon or relax any covenant
or other restriction applicable to the Borrower or any of its Subsidiaries and
(Z) does not involve the payment of a consent fee) or (B) to the extent it is
a Permitted Transaction).
(c) If a Default or Event of Default has occurred and is
continuing, such Loan Party shall not, and shall not permit any of its
Subsidiaries to, prepay or repay any post-petition Indebtedness for borrowed
money authorized by the Bankruptcy Court, other than prepayments or repayments
of any Indebtedness which is permitted to be outstanding or incurred by
Section 8.1 as in effect on the Effective Date.
SECTION 8.11. ACCOUNTING CHANGES; FISCAL YEAR. Such Loan
Party shall not, and shall not permit any of its Subsidiaries to, change its
(a) accounting treatment and reporting practices or tax reporting treatment,
except as required by GAAP or any Requirement of Law or in connection with any
resolution of the Borrower's outstanding accounting issues with the agreement
of the Borrower's Accountants and disclosed to the Lenders and the
Administrative Agent or (b) Fiscal Year.
SECTION 8.12. MARGIN REGULATIONS. The Borrower shall not,
and shall not permit any of its Subsidiaries to use all or any portion of the
proceeds of any credit extended hereunder to purchase or carry margin stock
(within the meaning of Regulation U of the Federal Reserve Board) in
contravention of Regulation U of the Federal Reserve Board.
SECTION 8.13. SALE/LEASEBACKS. Such Loan Party shall not,
and shall not permit any of its Subsidiaries to, enter into any sale and
leaseback transactions.
SECTION 8.14. NO SPECULATIVE TRANSACTIONS. Such Loan Party
shall not, and shall not permit any of its Subsidiaries to, engage in any
speculative transaction or in any transaction involving Hedging Contracts
except for the sole purpose of hedging in the normal course of business and
consistent with industry practices.
SECTION 8.15. COMPLIANCE WITH ERISA. Such Loan Party shall
not, and shall not permit any of its Subsidiaries to, or cause or permit any
ERISA Affiliate to, cause or permit to occur (a) an event which could result
in the imposition of a Lien under Section 412 of the Code or Section 302 or
4068 of ERISA or (b) ERISA Events (other than the Cases) that would have a
Material Adverse Effect in the aggregate.
SECTION 8.16. ENVIRONMENTAL. Such Loan Party shall not, and
shall not permit any of its Subsidiaries to, allow a Release of any
Contaminant in violation of any Environmental Law; provided, however, that
such Loan Party shall not be deemed in violation of this Section 8.16 if, as
the consequence of all such Releases, such Loan Party would not incur
Environmental Liabilities and Costs that would have a Material Adverse Effect.
SECTION 8.17. CHAPTER 11 CLAIMS. Notwithstanding anything to
the contrary contained in Sections 8.1 and 8.2, such Loan Party shall not, and
shall not permit any of its Subsidiaries to, agree to, incur, create, assume,
suffer to exist or permit (a) any administrative expense, unsecured claim, or
other super-priority claim or lien which is pari passu with or senior to the
claims of the Secured Parties against the Loan Parties hereunder (other than
to incur Indebtedness that will repay in full the Obligations and terminate
the Facilities; provided, that the incurrence of such Indebtedness shall be
conditioned by the Bankruptcy Court upon the repayment in full of the
Obligations and termination of the Facilities), or apply to the Bankruptcy
Court for authority to do so, except for the Carve-Out and post-petition Liens
permitted by Section 8.2(c), (d), (e) or (i) or (b) the extension of any
existing adequate protection or the grant of further adequate protection or
apply to the Bankruptcy Court for authority to do so, in each case pursuant to
this clause (b) without the consent of the Administrative Agent in its sole
discretion and except, in the case of this clause (b) only, with respect to
the Vendor Lien Program to the extent contemplated as a Permitted Transaction
and Permitted Prepetition Claim Payments.
SECTION 8.18. THE ORDERS. Such Loan Party shall not, and
shall not permit any of its Subsidiaries to, make or seek any change,
amendment or modification, or any application or motion for any change,
amendment or modification, to either Order, except for any amendment to the
Final Order pursuant to the Amended and Restated DIP Order.
SECTION 8.19. DISPUTED CLAIMS. The Loan Parties shall not,
without the prior written approval of the Administrative Agent, settle the
"Disputed Claims" (as defined in the Final Order) with respect to amounts
alleged to be payable pursuant to the Existing Credit Agreement (other than
any claims with respect to indemnities under the Existing Credit Agreement)
for an aggregate amount in excess of $5,000,000; provided, however, that (i)
no amount of the Disputed Claims or any settlement payments with respect
thereto may be made by or on behalf of the Loan Parties except (x) pursuant to
the effectiveness of a Plan of Reorganization that provides for such payment
following the Discharge of Revolving Credit Obligations or (y) following the
Discharge of Revolving Credit Obligations and the payment in full of all Term
Loans and all other Obligations (other than contingent indemnification
obligations not then due and payable) and (ii) no additional adequate
protection shall be granted with respect thereto unless approved by the
Administrative Agent.
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.1. EVENTS OF DEFAULT. Each of the following events
shall be an Event of Default:
(a) the Borrower shall fail to pay any principal of any Loan
or any Reimbursement Obligation when the same becomes due and payable; or
(b) the Borrower shall fail to pay any interest on any Loan,
any fee under any of the Loan Documents or any other Obligation (other than
one referred to in clause (a) above) and such non-payment continues for a
period of three Business Days after the due date therefor; or
(c) any representation or warranty made or deemed made by
any Loan Party in any Loan Document or by any Loan Party (or any of its
officers) in connection with any Loan Document shall prove to have been
incorrect in any material respect when made or deemed made; or
(d) any Loan Party shall fail to perform or observe (i) any
term, covenant or agreement contained in Article V, Section 6.1, 6.2, 6.11(a),
7.1, 7.6, 7.9, 7.11, 7.12, 7.14 or Article VIII, or (ii) any other term,
covenant or agreement contained in this Agreement or in any other Loan
Document if such failure under this clause (ii) shall remain unremedied for 10
Business Days after the earlier of (A) the date on which a Responsible Officer
of the Borrower becomes aware of such failure and (B) the date on which
written notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender; or
(e) (i) the Borrower or any of its Subsidiaries shall fail
to make any payment on any post petition Indebtedness (other than the
Obligations) of the Borrower or any such Subsidiary (or any Guaranty
Obligation in respect of Indebtedness of any other Person) and, in each case
such failure relates to Indebtedness having a principal amount of $1,000,000
or more, when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise); (ii) any other event
shall occur or condition shall exist under any agreement or instrument
relating to any such post petition Indebtedness, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the maturity
of such post petition Indebtedness; or (iii) any such post petition
Indebtedness shall become or be declared to be due and payable, or be required
to be prepaid or repurchased (other than by a regularly scheduled required
prepayment or customary mandatory prepayment provision), prior to the stated
maturity thereof; or (f) the Loan Documents and the Orders shall, for any
reason, cease to create a valid Lien on any of the Collateral purported to be
covered thereby or such Lien shall cease to be a perfected Lien having the
priority provided herein pursuant to section 364 of the Bankruptcy Code
against each Loan Party, or any Loan Party shall so allege in any pleading
filed in any court or any material provision of any Loan Document shall, for
any reason, cease to be valid and binding on each Loan Party party thereto or
any Loan Party shall so state in writing; or
(g) one or more judgments or orders (or other similar
process) involving, in the case of money judgments, an aggregate amount in
excess of $1,000,000, to the extent not covered by insurance, shall be
rendered against one or more of any Loan Party and its Subsidiaries and either
(i) enforcement proceedings shall have been commenced by any creditor upon
such judgment or order or (ii) there shall be any period of 10 consecutive
days during which a stay of enforcement of such judgment or order, by reason
of a pending appeal or otherwise, shall not be in effect; or
(h) an ERISA Event (other than the Cases) shall occur and
the amount of all liabilities and deficiencies resulting therefrom, whether or
not assessed, exceeds $1,000,000 in the aggregate; or
(i) there shall occur any Change of Control; or
(j) any of the Cases shall be dismissed (or the Bankruptcy
Court shall make a ruling requiring the dismissal of the Cases), suspended or
converted to a case under chapter 7 of the Bankruptcy Code, or any Loan Party
shall file any pleading requesting any such relief; or an application shall be
filed by any Loan Party for the approval of, or there shall arise, (i) any
other Claim having priority senior to or pari passu with the claims of the
Administrative Agent and the Lenders under the Loan Documents or any other
claim having priority over any or all administrative expenses of the kind
specified in sections 503(b) or 507(b) of the Bankruptcy Code (other than the
Carve-Out) or (ii) any Lien on the Collateral having a priority senior to or
pari passu with the Liens and security interests granted herein, except as
expressly provided herein; or
(k) any Loan Party shall file a motion seeking, or the
Bankruptcy Court shall enter, an order (i) approving payment of any
prepetition Claim (other than Permitted Prepeptition Claim Payments), (ii)
granting relief from the automatic stay applicable under section 362 of the
Bankruptcy Code to any holder of any security interest to permit foreclosure
on any assets (other than certain assets identified by the Borrower and agreed
to by the Administrative Agent) having a book value in excess of $1,000,000 in
the aggregate, (iii) except to the extent the same would not constitute a
Default under any of the previous clauses, approving any settlement or other
stipulation with any creditor of any Loan Party, other than the Administrative
Agent and the Lenders, or otherwise providing for payments as adequate
protection or otherwise to such creditor individually or in the aggregate in
excess of $100,000 for any and all such creditors; or (iv) approving payment
of or granting any adequate protection with respect to pre-petition
Indebtedness (other than Permitted Prepeptition Claim Payments or otherwise as
approved by the Administrative Agent in its sole discretion, the Requisite
Lenders and the Bankruptcy Court, and subject to exceptions for payments made
pursuant to orders made prior to the Initial Closing Date, and other
exceptions, which are in each case acceptable to the Administrative Agent in
it sole discretion, provided, however, that any extension or replacement,
without the approval of the Administrative Agent in its sole discretion, of
any adequate protection or budget approval rights granted pursuant to such
orders of the Bankruptcy Court made on or prior to the Initial Closing Date
shall in any event constitute an Event of Default); or
(l) (i) the Final Order or the Amended and Restated DIP
Order shall cease to be in full force and effect, or (ii) any Loan Party shall
fail to comply with the terms of the Final Order (as amended by the Amended
and Restated DIP Order) or the Amended and Restated DIP Order in any material
respect, or (iii) the Final Order or the Amended and Restated DIP Order shall
be amended, supplemented, stayed, reversed, vacated or otherwise modified (or
any of the Loan Parties shall apply for authority to do so) without the
written consent of the Requisite Revolving Credit Lenders and the Requisite
Term Loan Lenders, except to the extent expressly provided in the Amended and
Restated DIP Order; or
(m) the Bankruptcy Court shall enter an order appointing a
trustee, responsible officer or an examiner with powers beyond the duty to
investigate and report, as set forth in section 1106(a)(3) and (4) of the
Bankruptcy Code, in any of the Cases; or
(n) one or more of the Borrower and its Subsidiaries shall
have entered into one or more consent or settlement decrees or agreements or
similar arrangements with a Governmental Authority or one or more judgments,
orders, decrees or similar actions shall have been entered against one or more
of the Borrower and its Subsidiaries based on or arising from the violation of
or pursuant to any Environmental Law, or the generation, storage,
transportation, treatment, disposal or Release of any Contaminant and, in
connection with all the foregoing, the Borrower and its Subsidiaries are
likely to incur Environmental Liabilities and Costs that would have a Material
Adverse Effect; or
(o) the exclusive period that the Loan Parties have to file
a Plan of Reorganization under the Cases shall terminate or be otherwise
lifted without the Loan Parties having filed such a plan and a third party
files such a plan which is not acceptable to the Loan Parties and the
Administrative Agent, or a Plan of Reorganization is filed which does not
provide for the payment in full of the Obligations on or prior to the date of
consummation thereof in cash (except to the extent otherwise permitted with
respect to the Term Loans pursuant to Section 2.19).
SECTION 9.2. REMEDIES. During the continuance of any Event
of Default, without further order of, application to, or action by, the
Bankruptcy Court, the Administrative Agent (a) may, and, at the request of the
Requisite Revolving Credit Lenders, shall by notice to the Borrower declare
that all or any portion of the Revolving Credit Commitments be terminated,
whereupon the obligation of each Revolving Credit Lender to make any Loan and
each Issuer to Issue any Letter of Credit shall immediately terminate, and (b)
may, and, at the request of the Requisite Lenders, shall by notice to the
Borrower, declare the Loans, all interest thereon and all other amounts and
Obligations payable under this Agreement, including any Applicable Term Loan
Repayment Fee, to be forthwith due and payable, whereupon the Loans, all such
interest and all such amounts and Obligations, including any Applicable Term
Loan Repayment Fee, shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrower. In addition, subject solely to any
requirement of the giving of notice by the terms of the Final Order or the
Amended and Restated DIP Order, the automatic stay provided in section 362 of
the Bankruptcy Code shall be deemed automatically vacated without further
action or order of the Bankruptcy Court and the Administrative Agent and the
Lenders shall be entitled to exercise all of their respective rights and
remedies under the Loan Documents, including, without limitation, all rights
and remedies with respect to the Collateral and the Subsidiary Guarantors. In
addition to the remedies set forth above, subject solely to any requirement of
the giving of notice by the terms of the Final Order or the Amended and
Restated DIP Order, the Administrative Agent may exercise any remedies
provided for by this Agreement and the Collateral Documents in accordance with
the terms hereof and thereof or any other remedies provided by applicable law.
Subject to Schedule 2.19, any Term Loan repaid pursuant to this Section 9.2
with the proceeds of Collateral shall be accompanied by a premium in an amount
equal to the Applicable Term Loan Repayment Fee.
SECTION 9.3. ACTIONS IN RESPECT OF LETTERS OF CREDIT. At any
time (i) upon the Revolving Credit Termination Date, (ii) after the Revolving
Credit Termination Date when the aggregate funds on deposit in Cash Collateral
Accounts shall be less than 105% of the Letter of Credit Obligations, and
(iii) as may be required in the definition of "Discharge of Revolving Credit
Obligations" or by Section 2.4(b) or Section 2.9(b) or (c) (Mandatory
Prepayments), the Borrower shall pay to the Administrative Agent in
immediately available funds at the Administrative Agent's office referred to
in Section 13.8, for deposit in a Cash Collateral Account, (x) in the case of
clauses (i) and (ii) above, the amount required to that, after such payment,
the aggregate funds on deposit in the Cash Collateral Accounts equals or
exceeds 105% of the sum of all outstanding Letter of Credit Obligations and
(y) in the case of clause (iii) above, the amount required in the definition
of "Discharge of Revolving Credit Obligations" or by Section 2.4(b) or Section
2.9(b) or (c) (Mandatory Prepayments). The Administrative Agent may, from time
to time after funds are deposited in any Cash Collateral Account, apply funds
then held in such Cash Collateral Account to the payment of any amounts, in
accordance with Section 2.9(d) and Section 2.13(g), as shall have become or
shall become due and payable by the Borrower to the Issuers or the Lenders in
respect of the Letter of Credit Obligations. The Administrative Agent shall
promptly give written notice of any such application; provided, however, that
the failure to give such written notice shall not invalidate any such
application.
SECTION 9.4. RESCISSION. If at any time after termination of
the Revolving Credit Commitments or acceleration of the maturity of the Loans,
the Borrower shall pay all arrears of interest and all payments on account of
principal of the Loans and Reimbursement Obligations which shall have become
due otherwise than by acceleration (with interest on principal and, to the
extent permitted by law, on overdue interest, at the rates specified herein)
and all Events of Default and Defaults (other than non-payment of principal of
and accrued interest on the Loans due and payable solely by virtue of
acceleration) shall be remedied or waived pursuant to Section 13.1, then upon
the written consent of the Requisite Revolving Credit Lenders and written
notice to the Borrower, the termination of the Revolving Credit Commitments
may be rescinded and annulled and upon the written consent of the Requisite
Lenders and written notice to the Borrower, the acceleration and their
consequence may be rescinded and annulled; provided, however, that such action
shall not affect any subsequent Event of Default or Default or impair any
right or remedy consequent thereon. The provisions of the preceding sentence
are intended merely to bind the Lenders and the Issuers to a decision which
may be made at the election of the Requisite Revolving Credit Lenders or the
Requisite Lenders, as applicable, and such provisions are not intended to
benefit the Borrower and do not give the Borrower the right to require the
Lenders to rescind or annul any acceleration hereunder, even if the conditions
set forth herein are met.
SECTION 9.5. OPTION TO PURCHASE. Upon (a) receipt by the
Term Loan Lenders of notice from the Administrative Agent of the acceleration
of the Obligations pursuant to Section 9.2, (b) the occurrence and during the
continuation of an Event of Default specified in Section 9.1(a) with respect
to the Term Loans, which Event of Default shall remain unremedied for 10 days,
or (c) the occurrence and during the continuation of an Event of Default
specified in Section 9.1(d) with respect to Sections 5.1(b), 5.2(b) or 7.14,
the Term Loan Lenders shall have the option to purchase at par (in equal
proportions among the Term Loan Lenders exercising such option) pursuant to an
Assignment and Acceptance all, but not less than all, of the Revolving Loans
outstanding at the time of such purchase, and such purchasing Term Loan
Lenders shall assume and the applicable Revolving Credit Lenders shall be
relieved of their Revolving Credit Commitments and other obligations under the
Loan Documents (including, without limitation, any obligation to participate
in Letters of Credit), for a purchase price equal to the sum of (i) 100% of
the outstanding principal amount of such Revolving Loans, (ii) an amount (to
be deposited as cash collateral in favor of the applicable Issuer) equal to
105% of the sum of all Letter of Credit Obligations outstanding at such time,
and (iii) all interest, fees, unreimbursed costs and expenses and indemnities
accrued and unpaid through the date of such purchase which are owed to the
Revolving Credit Lenders. The Term Loan Lenders shall be provided written
notice by the Administrative Agent within three (3) Business Days of any such
acceleration or Event of Default, and shall have the option within forty-five
(45) days after the receipt of such notice to provide written irrevocable
notice of the exercise of the purchase option pursuant to this Section 9.5.
ARTICLE X
GUARANTY
SECTION 10.1. THE GUARANTY. In order to induce the Lenders
to enter into this Agreement and to extend credit hereunder and in recognition
of the direct benefits to be received by each Subsidiary Guarantor from the
proceeds of the Loans and the issuance of the Letters of Credit, each
Subsidiary Guarantor hereby reaffirms the Guaranty (as defined in the Original
DIP Credit Agreement) and agrees with the Administrative Agent and the Lenders
that such Subsidiary Guarantor hereby unconditionally and irrevocably, jointly
and severally, guarantees as primary obligor and not merely as surety the full
and prompt payment when due, whether upon maturity, by acceleration or
otherwise, of any and all of (i) the Obligations and (ii) all other amounts,
obligations, covenants and duties owing by the Borrower to the Administrative
Agent, any Lender, any Issuer, any Affiliate of any of them or any Indemnitee,
of every type and description (whether by reason of an extension of credit,
opening or amendment of a letter of credit or payment of any draft drawn or
other payment thereunder, loan, guaranty, indemnification, foreign exchange or
currency swap transaction, interest rate hedging transaction or otherwise),
present or future, arising under each Hedging Contract between the Borrower
and any Person that was a Lender or an Affiliate of a Lender at the time it
entered into such Hedging Contract and each Cash Management Document. If any
or all of the Obligations become due and payable hereunder, each Subsidiary
Guarantor, jointly and severally, unconditionally promises to pay such
Obligations to the Lenders, or order, on demand, together with any and all
reasonable expenses which may be incurred by the Administrative Agent or the
Lenders in collecting any of the Obligations.
SECTION 10.2. NATURE OF LIABILITY. The liability of each
Subsidiary Guarantor hereunder is exclusive and independent of any security
for or other guaranty of the Obligations whether executed by such Subsidiary
Guarantor, any other Subsidiary Guarantor, any other guarantor or by any other
party, and the liability of each Subsidiary Guarantor hereunder shall not be
affected or impaired by (a) any direction as to application of payment by the
Borrower or by any other party, or (b) any other continuing or other guaranty,
undertaking or maximum liability of a guarantor or of any other party as to
the Obligations of the Borrower, or (c) any payment on or in reduction of any
such other guaranty or undertaking, or (d) any dissolution, termination or
increase, decrease or change in personnel by the Borrower, or (e) any payment
made to the Administrative Agent or the Lenders in respect of the Obligations
which the Administrative Agent or such Lenders repay to the Borrower pursuant
to court order in any bankruptcy, reorganization, arrangement, moratorium or
other debtor relief proceeding, and each Subsidiary Guarantor waives any right
to the deferral or modification of its obligations hereunder by reason of any
such proceeding.
SECTION 10.3. INDEPENDENT OBLIGATION. The obligations of
each Subsidiary Guarantor hereunder are independent of the obligations of any
other Subsidiary Guarantor, any other guarantor or the Borrower, and a
separate action or actions may be brought and prosecuted against each
Subsidiary Guarantor whether or not action is brought against any other
Subsidiary Guarantor, any other guarantor or the Borrower and whether or not
any other Subsidiary Guarantor, any other guarantor or the Borrower be joined
in any such action or actions. Each Subsidiary Guarantor waives, to the
fullest extent permitted by law, the benefit of any statute of limitations
affecting its liability hereunder or the enforcement thereof. Any payment by
the Borrower or other circumstance which operates to toll any statute of
limitations as to the Borrower shall operate to toll the statute of
limitations as to the Subsidiary Guarantor.
SECTION 10.4. AUTHORIZATION. Each Subsidiary Guarantor
authorizes the Administrative Agent and the Lenders without notice or demand
(except as shall be required by applicable statute and cannot be waived), and
without affecting or impairing its liability hereunder, from time to time to:
(a) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew, increase, accelerate or alter,
any of the Obligations (including any increase or decrease in the rate of
interest thereon), any security therefor, or any liability incurred directly
or indirectly in respect thereof, and the Guaranty herein made shall apply to
the Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the
Obligations and sell, exchange, release, surrender, realize upon or otherwise
deal with in any manner and in any order any property by whomsoever at any
time pledged or mortgaged to secure, or howsoever securing, the Obligations or
any liabilities (including any of those hereunder) incurred directly or
indirectly in respect thereof or hereof, and/or any offset there against;
(c) exercise or refrain from exercising any rights against
the Borrower or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers,
Subsidiary Guarantors, the Borrower or other obligors;
(e) settle or compromise any of the Obligations, any
security therefor or any liability (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, or subordinate the
payment of all or any part thereof to the payment of any liability (whether
due or not) of the Borrower to its creditors;
(f) apply, subject to the other provisions of this
Agreement, any sums by whomsoever paid or howsoever realized to any liability
or liabilities of the Borrower to the Lenders regardless of what liability or
liabilities of such Subsidiary Guarantor or the Borrower remain unpaid; and/or
(g) consent to or waive any breach of, or any act, omission
or default under, this Agreement or any of the instruments or agreements
referred to herein, or otherwise amend, modify or supplement this Agreement or
any of such other instruments or agreements.
SECTION 10.5. RELIANCE. It is not necessary for the
Administrative Agent or the Lenders to inquire into the capacity or powers of
the Borrower or its Subsidiaries or the officers, directors, partners or
agents acting or purporting to act on its behalf, and any Obligations made or
created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
SECTION 10.6. SUBORDINATION. Any of the Indebtedness of the
Borrower now or hereafter owing to any Subsidiary Guarantor is hereby
subordinated to the Obligations; provided, however, that payment may be made
by the Borrower on any such Indebtedness owing to such Subsidiary Guarantor so
long as the same is not prohibited by this Agreement; and provided further,
that if the Administrative Agent so requests at a time when an Event of
Default exists, all such Indebtedness of the Borrower to such Subsidiary
Guarantor shall be collected, enforced and received by such Subsidiary
Guarantor as trustee for the Lenders and be paid over to the Administrative
Agent on behalf of the Lenders on account of the Obligations of the Borrower
to Lenders, but without affecting or impairing in any manner the liability of
such Subsidiary Guarantor under the other provisions of this Guaranty. Prior
to the transfer by any Subsidiary Guarantor of any note or negotiable
instrument evidencing any of the Indebtedness of the Borrower to such
Subsidiary Guarantor, such Subsidiary Guarantor shall ▇▇▇▇ such note or
negotiable instrument with a legend that the same is subject to this
subordination.
SECTION 10.7. WAIVER.
(a) Each Subsidiary Guarantor waives any right (except as
shall be required by applicable statute and cannot be waived) to require the
Administrative Agent or the Lenders to (i) proceed against the Borrower, any
other Subsidiary Guarantor, any other guarantor or any other party, (ii)
proceed against or exhaust any security held from the Borrower, any other
Subsidiary Guarantor, any other guarantor or any other party or (iii) pursue
any other remedy in the Administrative Agent's or the Lenders' power
whatsoever. Each Subsidiary Guarantor waives (except as shall be required by
applicable statute and cannot be waived) any defense based on or arising out
of any defense of the Borrower, any other Subsidiary Guarantor, any other
guarantor or any other party other than payment in full of the Obligations,
including, without limitation, any defense based on or arising out of the
disability of the Borrower, any other Subsidiary Guarantor, any other
guarantor or any other party, or the unenforceability of the Obligations or
any part thereof from any cause, or the cessation from any cause of the
liability of the Borrower other than payment in full of the Obligations.
Subject to any requirement of the giving of notice in the Orders, the
Administrative Agent and the Lenders may, at their election, foreclose on any
security held by the Administrative Agent or the Lenders by one or more
judicial or nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable (to the extent such sale is permitted by applicable
law), or exercise any other right or remedy the Administrative Agent and the
Lenders may have against the Borrower or any other party, or any security,
without affecting or impairing in any way the liability of any Subsidiary
Guarantor hereunder except to the extent the Obligations have been paid. Each
Subsidiary Guarantor waives any defense arising out of any such election by
the Administrative Agent and the Lenders, even though such election operates
to impair or extinguish any right of reimbursement or subrogation or other
right or remedy of such Subsidiary Guarantor against the Borrower or any other
party or any security.
(b) Each Subsidiary Guarantor waives all presentments,
demands for performance, protests and notices, including without limitation
notices of nonperformance, notices of protest, notices of dishonor, notices of
acceptance of this Guaranty, and notices of the existence, creation or
incurring of new or additional Obligations. Each Subsidiary Guarantor assumes
all responsibility for being and keeping itself informed of the Borrower's
financial condition and assets, and of all other circumstances bearing upon
the risk of nonpayment of the Obligations and the nature, scope and extent of
the risks which such Subsidiary Guarantor assumes and incurs hereunder, and
agrees that the Administrative Agent and the Lenders shall have no duty to
advise such Subsidiary Guarantor of information known to them regarding such
circumstances or risks.
SECTION 10.8. LIMITATION ON ENFORCEMENT. The Lenders agree
that this Guaranty may be enforced only by the action of the Administrative
Agent, in each case acting upon the instructions of the Requisite Lenders, and
that no Lender shall have any right individually to seek to enforce or to
enforce this Guaranty it being understood and agreed that such rights and
remedies may be exercised by the Administrative Agent for the benefit of the
Lenders upon the terms of this Agreement.
ARTICLE XI
SECURITY
SECTION 11.1. SECURITY.
(a) To induce the Lenders to make the Loans, the Issuers to
issue Letters of Credit, and the Swing Loan Lenders to make the Swing Loans,
each Loan Party hereby reaffirms the grant of the security interests under the
Original DIP Credit Agreement, and grants to the Administrative Agent, for
itself and for the ratable benefit of the Secured Parties, as security for the
full and prompt payment when due (whether at stated maturity, by acceleration
or otherwise) of the Secured Obligations of such Loan Party, a continuing
first priority Lien and security interest (subject only to (i) valid,
perfected, nonavoidable and enforceable Liens existing as of the Petition
Date, other than the Liens on the Collateral securing Prepetition Secured
Indebtedness, (ii) the Carve-Out, (iii) Liens permitted under Section 8.2 (d)
and (iv) post-petition Liens permitted under Section 8.2(c), (e) and (i)) in
accordance with sections 364(c)(2) and (3) and 364(d)(1) of the Bankruptcy
Code in and to all Collateral of such Loan Party. For purposes of this
Agreement, all of the following property now owned or at any time hereafter
acquired by a Loan Party or in which a Loan Party now has or at any time in
the future may acquire any right, title or interests is collectively referred
to as the "Collateral":
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles, including all
Intellectual Property;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) all Letter of Credit Rights;
(xi) all Real Property;
(xii) all Vehicles;
(xiii) all Commercial Tort Claims, including those
described on Schedule 11.1;
(xiv) all books and records pertaining to the
property described in this Section 11.1;
(xv) all other goods and personal property of such
Loan Party, whether tangible or intangible, wherever located,
including money, letters of credit and all rights of payment or
performance under letters of credit;
(xvi) all property of any Loan Party held by the
Administrative Agent or any Secured Party, including all property of
every description, in the possession or custody of or in transit to
the Administrative Agent or such Secured Party for any purpose,
including safekeeping, collection or pledge, for the account of such
Loan Party, or as to which such Loan Party may have any right or
power;
(xvii) to the extent not otherwise included, all
monies and other property of any kind which is, after the Petition
Date, received by such Loan Party in connection with refunds with
respect to taxes, assessments and governmental charges imposed on
such Loan Party or any of its property or income;
(xviii) to the extent not otherwise included, all
causes of action (other than Avoidance Actions) and all monies and
other property of any kind received therefrom, and all monies and
other property of any kind recovered by any Loan Party;
(xix) all insurance claims; and
(xx) to the extent not otherwise included, all
Proceeds of each of the foregoing and all accessions to,
substitutions and replacements for, and rents, profits and products
of, each of the foregoing, any and all proceeds of insurance,
indemnity, warranty or guaranty payable to any Loan Party from time
to time with respect to any of the foregoing;
provided, however, that the Collateral shall not include any Real
Property lease held by any Loan Party; provided, further that (notwithstanding
the foregoing) the Collateral shall in any event include all Proceeds,
substitutions or replacements of any such Real Property lease (except in the
case of a substitution or replacement thereof which is a Real Property lease).
SECTION 11.2. PERFECTION OF SECURITY INTERESTS.
(a) Each Loan Party shall, at its expense, perform any and
all steps that may be reasonably requested by the Administrative Agent at any
time to perfect, maintain, protect, and enforce the Lenders' security interest
in the Collateral of such Loan Party, including, without limitation, (i)
executing and filing financing or continuation statements, and amendments
thereof, in form and substance satisfactory to the Administrative Agent, (ii)
maintaining complete and accurate stock records, (iii) upon the request of the
Administrative Agent, using its best efforts in delivering to the
Administrative Agent negotiable warehouse receipts, if any, and, upon the
Administrative Agent's request therefor, non-negotiable warehouse receipts
covering any portion of the Collateral located in warehouses and for which
warehouse receipts are issued, (iv) upon the request of the Administrative
Agent during the continuance of an Event of Default, placing notations on such
Loan Party's books of account to disclose the Administrative Agent's security
interest therein, (v) to the extent requested by the Administrative Agent,
delivering to the Administrative Agent all documents, certificates and
Instruments necessary or desirable to perfect the Administrative Agent's Lien
in letters of credit on which such Loan Party is named as beneficiary and all
acceptances issued in connection therewith, (vi) after the occurrence and
during the continuation of an Event of Default, transferring Inventory
maintained in warehouses to other warehouses designated by the Administrative
Agent and (vii) taking such other steps as are deemed necessary or desirable
to maintain the Administrative Agent's security interest in the Collateral.
Prior to the occurrence and continuation of an Event of Default, the
Administrative Agent shall not direct the transfer of any balances in any
Approved Deposit Account to any account other than the Cash Concentration
Account.
(b) Each Loan Party hereby authorizes the Administrative
Agent to execute and file financing statements or continuation statements, and
amendments thereto, on such Loan Party's behalf covering the Collateral. The
Administrative Agent may file one or more financing statements disclosing the
Administrative Agent's security interest under this Agreement without the
signature of such Loan Party appearing thereon. Each Loan Party shall pay the
costs of, or incidental to, any recording or filing of any financing
statements concerning the Collateral. Each Loan Party agrees that a carbon,
photographic, photostatic, or other reproduction of this Agreement or of a
financing statement is sufficient as a financing statement. If any Collateral
is at any time in the possession or control of any warehouseman, bailee or
such Loan Party's agents or processors, upon the request of the Administrative
Agent, such Loan Party shall notify such warehouseman, bailee, agents or
processors of the Administrative Agent's security interest, which notification
shall specify that such Person shall, upon the occurrence and during the
continuance of an Event of Default, hold all such Collateral for the
Administrative Agent's account subject to the Administrative Agent's
instructions. From time to time, each Loan Party shall, upon the
Administrative Agent's request, execute and deliver written instruments
pledging to the Administrative Agent the Collateral described in any such
instruments or otherwise, but the failure of such Loan Party to execute and
deliver such confirmatory instruments shall not affect or limit the
Administrative Agent's security interest or other rights in and to the
Collateral. Until all Obligations have been fully satisfied and the Revolving
Credit Commitments shall have been terminated, the Administrative Agent's
security interest in the Collateral, and all Proceeds and products thereof,
shall continue in full force and effect.
(c) Notwithstanding subsections (a) and (b) of this Section
11.2, or any failure on the part of any Loan Party or the Administrative Agent
to take any of the actions set forth in such subsections, the Liens and
security interests granted herein shall be deemed valid, enforceable and
perfected by entry of the Final Order and the Amended and Restated DIP Order,
as applicable. No financing statement, notice of lien, mortgage, deed of trust
or similar instrument in any jurisdiction or filing office need be filed or
any other action taken in order to validate and perfect the Liens and security
interests granted by or pursuant to this Agreement, the Final Order and the
Amended and Restated DIP Order.
SECTION 11.3. RIGHTS OF LENDER; LIMITATIONS ON LENDERS'
OBLIGATIONS.
(a) Subject to each Loan Party's rights and duties under the
Bankruptcy Code (including section 365 of the Bankruptcy Code), it is
expressly agreed by each Loan Party that, anything herein to the contrary
notwithstanding, such Loan Party shall remain liable under its post-petition
Contractual Obligations to observe and perform all the conditions and
obligations to be observed and performed by it thereunder. Neither the
Administrative Agent nor any Secured Party shall have any obligation or
liability under any Contractual Obligations by reason of or arising out of
this Agreement, the Loan Documents, or the granting to the Administrative
Agent of a security interest therein or the receipt by the Administrative
Agent or any Lender of any payment relating to any Contractual Obligations
pursuant hereto, nor shall the Administrative Agent be required or obligated
in any manner to perform or fulfill any of the obligations of any Loan Party
under or pursuant to any Contractual Obligations, or to make any payment, or
to make any inquiry as to the nature or the sufficiency of any payment
received by it or the sufficiency of any performance by any party under any
Contractual Obligations, or to present or file any claim, or to take any
action to collect or enforce any performance or the payment of any amounts
which may have been assigned to it or to which it may be entitled at any time
or times.
(b) Subject to Section 11.5 hereof, the Administrative Agent
authorizes each Loan Party to collect its Accounts, provided that such
collection is performed in accordance with such Loan Party's customary
procedures, and the Administrative Agent may, upon the occurrence and during
the continuation of any Event of Default and without notice, other than any
requirement of notice provided in the Orders, limit or terminate said
authority at any time.
(c) Subject to any requirement of notice provided in the
Orders, the Administrative Agent may at any time, upon the occurrence and
during the continuation of any Event of Default, after first notifying the
Borrower of its intention to do so, notify Account Debtors, notify the other
parties to the Contractual Obligations of the Borrower or any other Loan
Party, notify obligors of Instruments and Investment Property of the Borrower
or any other Loan Party and notify obligors in respect of Chattel Paper of the
Borrower or any other Loan Party that the right, title and interest of the
Borrower or such Loan Party in and under such Accounts, such Contractual
Obligations, such Instruments, such Investment Property and such Chattel Paper
have been assigned to the Administrative Agent and that payments shall be made
directly to the Administrative Agent. Subject to any requirement of notice
provided in the Orders, upon the request of the Administrative Agent, the
Borrower or such other Loan Party will so notify such Account Debtors, such
parties to Contractual Obligations, obligors of such Instruments and
Investment Property and obligors in respect of such Chattel Paper. Subject to
any requirement of notice provided in the Orders, upon the occurrence and
during the continuation of an Event of Default, the Administrative Agent may
in its own name, or in the name of others, communicate with such parties to
such Accounts, Contractual Obligations, Instruments, Investment Property and
Chattel Paper to verify with such Persons to the Administrative Agent's
reasonable satisfaction the existence, amount and terms of any such Accounts,
Contractual Obligations, Instruments, Investment Property or Chattel Paper.
SECTION 11.4. COVENANTS OF THE LOAN PARTIES WITH RESPECT TO
COLLATERAL. Each of the Borrower and the other Loan Parties agrees with the
Lenders, the Issuers and the Administrative Agent to each of the following, as
long as any Obligation or any Commitment remains outstanding:
(a) Maintenance of Records. Such Loan Party will keep and
maintain, at its own cost and expense, satisfactory and complete records of
the Collateral, in all material respects, including, without limitation, a
record of all payments received and all credits granted with respect to the
Collateral and all other dealings concerning the Collateral. For the
Administrative Agent's further security, each Loan Party agrees that the
Administrative Agent shall have a property interest in all of such Loan
Party's books and records pertaining to the Collateral and, upon the
occurrence and during the continuation of an Event of Default, such Loan Party
shall deliver and turn over any such books and records to the Administrative
Agent or to its representatives at any time on demand of the Administrative
Agent.
(b) Indemnification With Respect to Collateral. In any suit,
proceeding or action brought by the Administrative Agent relating to any
Account, Chattel Paper, Contractual Obligations, General Intangible,
Investment Property, Instrument, Intellectual Property or other Collateral for
any sum owing thereunder or to enforce any provision of any Account, Chattel
Paper, Contractual Obligations, General Intangible, Investment Property,
Instrument, Intellectual Property or other Collateral, such Loan Party will
save, indemnify and keep the Secured Parties harmless from and against all
expense, loss or damage suffered by the Secured Parties by reason of any
defense, setoff, counterclaim, recoupment or reduction of liability whatsoever
of the obligor thereunder, arising out of a breach by such Loan Party of any
obligation thereunder or arising out of any other agreement, indebtedness or
liability at any time owing to, or in favor of, such obligor or its successors
from such Loan Party, and all such obligations of such Loan Party shall be and
remain enforceable against and only against such Loan Party and shall not be
enforceable against the Administrative Agent.
(c) Limitation on Liens on Collateral. Such Loan Party will
not create, permit or suffer to exist, and will defend the Collateral against
and take such other action as is necessary to remove, any Lien on the
Collateral except Liens permitted under Section 8.2 and will defend the right,
title and interest of the Administrative Agent in and to all of such Loan
Party's rights under the Chattel Paper, Leases, Real Estate, Contracts,
Documents, General Intangibles, Instruments, Investment Property and to the
Intellectual Property, Equipment and Inventory and in and to the Proceeds
thereof against the claims and demands of all Persons whomsoever other than
claims or demands arising out of Liens permitted under Section 8.2.
(d) Limitations on Modifications of Accounts. Such Loan
Party will not, without the Administrative Agent's prior written consent,
grant any extension of the time of payment of any of the Accounts, Chattel
Paper or Instruments, compromise, compound or settle the same for less than
the full amount thereof, release, wholly or partly, any Person liable for the
payment thereof, or allow any credit or discount whatsoever thereon other than
any of the foregoing which are done in the ordinary course of business,
consistent in all material respects with past practices and trade discounts
granted in the ordinary course of business of such Loan Party.
(e) Notices. Such Loan Party will advise the Lenders
promptly, in reasonable detail, (i) of any Lien asserted against any of the
Collateral other than Liens permitted under Section 8.2, and (ii) of the
occurrence of any other event which would result in a material adverse change
with respect to the aggregate value of the Collateral or on the security
interests created hereunder.
(f) Maintenance of Equipment. Such Loan Party will keep and
maintain the Equipment in good operating condition sufficient for the
continuation of the business conducted by such Loan Party on a basis
consistent with past practices, ordinary wear and tear excepted, except where
the failure to so keep and maintain the Equipment would not, in the aggregate,
have a Material Adverse Effect.
(g) Pledged Collateral.
(i) Upon request of the Administrative Agent, such
Loan Party will (x) deliver to the Administrative Agent, all
certificates or Instruments representing or evidencing any Pledged
Collateral, whether now arising or hereafter acquired, in suitable
form for transfer by delivery or, as applicable, accompanied by such
Loan Party's endorsement, where necessary, or duly executed
instruments of transfer or assignment in blank, all in form and
substance satisfactory to the Administrative Agent, together with a
Pledge Amendment, duly executed by the Loan Party, in substantially
the form of Exhibit M (a "Pledge Amendment"), in respect of such
Additional Pledged Collateral and authorizes the Administrative Agent
to attach each Pledge Amendment to this Agreement and (y) maintain
all other Pledged Collateral constituting Investment Property in a
Control Account. If an Event of Default has occurred and is
continuing, the Administrative Agent shall have the right, in its
discretion and without notice to the Loan Party, to transfer to or to
register in its name or in the name of its nominees any or all of the
Pledged Collateral. The Administrative Agent shall have the right at
any time to exchange certificates or instruments representing or
evidencing any of the Pledged Collateral for certificates or
instruments of smaller or larger denominations.
(ii) Except as provided in Section 11.7, such Loan
Party shall be entitled to receive all cash dividends paid in respect
of the Pledged Collateral (other than liquidating or distributing
dividends) with respect to the Pledged Collateral. Any sums paid upon
or in respect of any of the Pledged Collateral upon the liquidation
or dissolution of any issuer of any of the Pledged Collateral, any
distribution of capital made on or in respect of any of the Pledged
Collateral or any property distributed upon or with respect to any of
the Pledged Collateral pursuant to the recapitalization or
reclassification of the capital of any issuer of Pledged Collateral
or pursuant to the reorganization thereof shall, unless otherwise
subject to a perfected security interest in favor of the
Administrative Agent, be delivered to the Administrative Agent to be
held by it hereunder as additional collateral security for the
Secured Obligations. If any sums of money or property so paid or
distributed in respect of any of the Pledged Collateral shall be
received by such Loan Party, such Loan Party shall, until such money
or property is paid or delivered to the Administrative Agent, hold
such money or property in trust for the Administrative Agent, as
additional security for the Secured Obligations.
(iii) Except as provided in Section 11.7, such Loan
Party will be entitled to exercise all voting, consent and corporate
rights with respect to the Pledged Collateral; provided, however,
that no vote shall be cast, consent given or right exercised or other
action taken by such Loan Party which would impair the Collateral in
any manner that would cause a Material Adverse Effect or which would
be inconsistent with or result in any violation of any provision of
this Agreement or any other Loan Document.
(iv) Such Loan Party shall not hereafter grant
Control over any Investment Property to any Person other than the
Administrative Agent.
(v) In the case of each Loan Party which is an
issuer of Pledged Collateral, such Loan Party agrees to be bound by
the terms of this Agreement relating to the Pledged Collateral issued
by it and will comply with such terms insofar as such terms are
applicable to it. In the case of each Loan Party which is a partner
in a Partnership, such Loan Party hereby consents to the extent
required by the applicable Partnership Agreement to the pledge by
each other Loan Party, pursuant to the terms hereof, of the Pledged
Partnership Interests in such Partnership and to the transfer of such
Pledged Partnership Interests to the Administrative Agent or its
nominee and to the substitution of the Administrative Agent or its
nominee as a substituted partner in such Partnership with all the
rights, powers and duties of a general partner or a limited partner,
as the case may be. In the case of each Loan Party which is a member
of an LLC, such Loan Party hereby consents to the extent required by
the applicable LLC Agreement to the pledge by each other Loan Party,
pursuant to the terms hereof, of the Pledged LLC Interests in such
LLC and to the transfer of such Pledged LLC Interests to the
Administrative Agent or its nominee and to the substitution of the
Administrative Agent or its nominee as a substituted member of the
LLC with all the rights, powers and duties of a member of the LLC in
question.
(vi) Such Loan Party will not agree to any
amendment of an LLC Agreement or Partnership Agreement that in any
way adversely affects the perfection of the security interest of the
Administrative Agent in the Pledged Partnership Interests or Pledged
LLC Interests pledged by such Loan Party hereunder, including
electing to treat the membership interest or partnership interest of
such Loan Party as a security under Section 8-103 of the UCC.
(h) Intellectual Property.
(i) Such Loan Party (either itself or through
licensees) will (i) continue to use each Trademark that is Material
Intellectual Property in order to maintain such Trademark in full
force and effect with respect to each class of goods for which such
Trademark is currently used, free from any claim of abandonment for
non-use, (ii) maintain as in the past the quality of products and
services offered under such Trademark, (iii) use such Trademark with
the appropriate notice of registration and all other notices and
legends required by applicable Requirements of Law, (iv) not adopt or
use any ▇▇▇▇ which is confusingly similar or a colorable imitation of
such Trademark unless the Administrative Agent shall obtain a
perfected security interest in such ▇▇▇▇ pursuant to this Agreement
and (v) not (and not permit any licensee or sublicensee thereof to)
do any act or knowingly omit to do any act whereby such Trademark may
become invalidated or impaired in any way.
(ii) Such Loan Party (either itself or through
licensees) will not do any act, or omit to do any act, whereby any
Patent which is Material Intellectual Property may become forfeited,
abandoned or dedicated to the public.
(iii) Such Loan Party (either itself or through
licensees) (i) will not (and will not permit any licensee or
sublicensee thereof to) do any act or omit to do any act whereby any
portion of the Copyrights which is Material Intellectual Property may
become invalidated or otherwise impaired and (ii) will not (either
itself or through licensees) do any act whereby any portion of the
Copyrights which is Material Intellectual Property may fall into the
public domain.
(iv) Such Loan Party (either itself or through
licensees) will not do any act, or omit to do any act, whereby any
trade secret which is Material Intellectual Property may become
publicly available or otherwise unprotectable.
(v) Such Loan Party (either itself or through
licensees) will not do any act that knowingly uses any Material
Intellectual Property to infringe the intellectual property rights of
any other Person.
(vi) Such Loan Party will notify the Administrative
Agent immediately if it knows, or has reason to know, that any
application or registration relating to any Material Intellectual
Property may become forfeited, abandoned or dedicated to the public,
or of any adverse determination or development (including the
institution of, or any such determination or development in, any
proceeding in the United States Patent and Trademark Office, the
United States Copyright Office or any court or tribunal in any
country) regarding such Loan Party's ownership of, right to use,
interest in, or the validity of, any Material Intellectual Property
or such Loan Party's right to register the same or to own and
maintain the same.
(vii) Whenever such Loan Party, either by itself or
through any agent, licensee or designee, shall file an application
for the registration of any Intellectual Property with the United
States Patent and Trademark Office, the United States Copyright
Office or any similar office or agency within or outside the United
States, such Loan Party shall report such filing to the
Administrative Agent within five Business Days after the last day of
the fiscal quarter in which such filing occurs. Upon request of the
Administrative Agent, such Loan Party shall execute and deliver, and
have recorded, any and all agreements, instruments, documents, and
papers as the Administrative Agent may request to evidence the
Administrative Agent's security interest in any Copyright, Patent or
Trademark and the goodwill and general intangibles of such Loan Party
relating thereto or represented thereby.
(viii) Such Loan Party will take all reasonable
actions necessary or requested by the Administrative Agent, including
in any proceeding before the United States Patent and Trademark
Office, the United States Copyright Office or any similar office or
agency, to maintain and pursue each application (and to obtain the
relevant registration) and to maintain each registration of any
Copyright, Trademark or Patent that is Material Intellectual
Property, including filing of applications for renewal, affidavits of
use, affidavits of incontestability and opposition and interference
and cancellation proceedings.
(ix) In the event that any Material Intellectual
Property is infringed upon or misappropriated or diluted by a third
party, such Loan Party shall notify the Administrative Agent promptly
after such Loan Party learns thereof. Such Loan Party shall take
appropriate action in response to such infringement, misappropriation
of dilution, including promptly bringing suit for infringement,
misappropriation or dilution and to recover any and all damages for
such infringement, misappropriation of dilution, and shall take such
other actions may be appropriate in its reasonable judgment under the
circumstances to protect such Material Intellectual Property.
(i) Commercial Tort Claims. The only Commercial
Tort Claims of any Loan Party existing on the Effective Date
(regardless of whether the amount, defendant or other material facts
can be determined) are those listed on Schedule 11.1, which sets
forth such information separately for each Loan Party. Such Loan
Party agrees that, if it shall acquire any interest in any Commercial
Tort Claim (whether from another Person or because such Commercial
Tort Claim shall have come into existence), (i) such Loan Party
shall, promptly following such acquisition, deliver to the
Administrative Agent, in each case in form and substance reasonably
satisfactory to the Administrative Agent, a notice of the existence
and nature of such Commercial Tort Claim and deliver a supplement to
Schedule 11.1 containing a specific description of such Commercial
Tort Claim, (ii) the provision of Section 11.1 shall apply to such
Commercial Tort Claim and (iii) such Loan Party shall execute and
deliver to the Administrative Agent, in each case in form and
substance reasonably satisfactory to the Administrative Agent, any
certificate, agreement and other document, and take all other action,
deemed by the Administrative Agent to be reasonably necessary or
appropriate for the Administrative Agent to obtain, on behalf of the
Secured Parties, a first-priority, perfected security interest in all
such Commercial Tort Claims. Any supplement to Schedule 11.1
delivered pursuant to this Section 11.5(i) shall, after the receipt
thereof by the Administrative Agent, become part of Schedule 11.1 for
all purposes hereunder other than in respect of representations and
warranties made prior to the date of such receipt.
SECTION 11.5. PERFORMANCE BY AGENT OF THE LOAN PARTIES'
OBLIGATIONS. If any Loan Party fails to perform or comply with any of its
agreements contained in this Article XI and the Administrative Agent, as
provided for by the terms of this Agreement, shall itself perform or comply,
or otherwise cause performance or compliance, with such agreement, the
expenses of the Administrative Agent incurred in connection with such
performance or compliance, together with interest thereon at the rate then in
effect in respect of the Revolving Loan, shall be payable by such Loan Party
to the Administrative Agent on demand and shall constitute Obligations secured
by the Collateral. Performance of such Loan Party's obligations as permitted
under this Section 11.5 shall in no way constitute a violation of the
automatic stay provided by section 362 of the Bankruptcy Code and each Loan
Party hereby waives applicability thereof. Moreover, the Administrative Agent
shall in no way be responsible for the payment of any costs incurred in
connection with preserving or disposing of Collateral pursuant to section
506(c) of the Bankruptcy Code and the Collateral may not be charged for the
incurrence of any such cost.
SECTION 11.6. LIMITATION ON AGENT'S DUTY IN RESPECT OF
COLLATERAL. Neither the Administrative Agent nor any Lender shall have any
duty as to any Collateral in its possession or control or in the possession or
control of any agent or nominee of it or any income thereon or as to the
preservation of rights against prior parties or any other rights pertaining
thereto, except that the Administrative Agent shall, with respect to the
Collateral in its possession or under its control, deal with such Collateral
in the same manner as the Administrative Agent deals with similar property for
its own account. Upon request of the Borrower, the Administrative Agent shall
account for any moneys received by it in respect of any foreclosure on or
disposition of the Collateral of any Loan Party.
SECTION 11.7. REMEDIES, RIGHTS UPON DEFAULT.
(a) If any Event of Default shall occur and be continuing,
and subject only to any required notice provided in the Orders, the
Administrative Agent may exercise in addition to all other rights and remedies
granted to it in this Agreement and in any other Loan Document, all rights and
remedies of a secured party under the UCC. Without limiting the generality of
the foregoing, each Loan Party expressly agrees that in any such event the
Administrative Agent, without demand of performance or other demand,
advertisement or notice of any kind (except the notice required by the Orders
or the notice specified below of time and place of public or private sale) to
or upon such Loan Party or any other Person (all and each of which demands,
advertisements and/or notices (except the notice required by the Orders or the
notice specified below of time and place of public or private sale) are hereby
expressly waived to the maximum extent permitted by the UCC and other
applicable law), may forthwith collect, receive, appropriate and realize upon
the Collateral, or any part thereof, and/or may forthwith sell, lease, assign,
give an option or options to purchase, or sell or otherwise dispose of and
deliver said Collateral (or contract to do so), or any part thereof, in one or
more parcels at public or private sale or sales, at any exchange or broker's
board or at any of the Administrative Agent's offices or elsewhere at such
prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. The Administrative Agent shall have the
right upon any such public sale or sales to purchase the whole or any part of
said Collateral so sold, free of any right or equity of redemption, which
equity of redemption each Loan Party hereby releases. Each Loan Party further
agrees, at the Administrative Agent's request, to assemble the Collateral make
it available to the Administrative Agent at places which the Administrative
Agent shall reasonably select, whether at such Loan Party's premises or
elsewhere. The Administrative Agent shall apply the proceeds of any such
collection, recovery, receipt, appropriation, realization or sale (net of all
expenses incurred by the Administrative Agent in connection therewith,
including, without limitation, attorney's fees and expenses), to the
Obligations in any order deemed appropriate by the Administrative Agent, such
Loan Party remaining liable for any deficiency remaining unpaid after such
application, and only after so paying over such net proceeds and after the
payment by the Administrative Agent of any other amount required by any
provision of law, including Section 9-504(l)(c) of the UCC, shall the
Administrative Agent account for and pay over the surplus, if any, to such
Loan Party. To the maximum extent permitted by applicable law, each Loan Party
waives all claims, damages, and demands against the Administrative Agent and
the Lenders arising out of the repossession, retention or sale of the
Collateral except such as arise out of the gross negligence or willful
misconduct of the Administrative Agent. Each Loan Party agrees that the
Administrative Agent need not give more than five days' notice to the Borrower
(which notification shall be deemed given when mailed or delivered on an
overnight basis, postage prepaid, addressed to the Borrower at its address
referred to in Section 13.8) of the time and place of any public sale or of
the time after which a private sale may take place and that such notice is
reasonable notification of such matters. The Loan Parties shall remain liable
for any deficiency if the proceeds of any sale or disposition of the
Collateral are insufficient to pay all amounts to which the Administrative
Agent is entitled, the Loan Parties also being liable for the fees and
expenses of any attorneys employed by the Administrative Agent to collect such
deficiency.
(b) Each Loan Party hereby waives presentment, demand,
protest or any notice (to the maximum extent permitted by applicable law) of
any kind in connection with this Agreement or any Collateral.
(c) Pledged Collateral.
(i) During the continuance of an Event of Default, if the
Administrative Agent shall give notice of its intent to exercise such
rights to the relevant Loan Party or Loan Parties, (i) the
Administrative Agent shall have the right to receive any and all cash
dividends, payments or other Proceeds paid in respect of the Pledged
Collateral and make application thereof to the Obligations in the
order set forth herein, and (ii) the Administrative Agent or its
nominee may exercise (A) all voting, consent, corporate and other
rights pertaining to the Pledged Collateral at any meeting of
shareholders, partners or members, as the case may be, of the
relevant issuer or issuers of Pledged Collateral or otherwise and (B)
any and all rights of conversion, exchange and subscription and any
other rights, privileges or options pertaining to the Pledged
Collateral as if it were the absolute owner thereof (including the
right to exchange at its discretion any and all of the Pledged
Collateral upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate
structure of any issuer of Pledged Securities, the right to deposit
and deliver any and all of the Pledged Collateral with any committee,
depositary, transfer agent, registrar or other designated agency upon
such terms and conditions as the Administrative Agent may determine),
all without liability except to account for property actually
received by it, but the Administrative Agent shall have no duty to
any Loan Party to exercise any such right, privilege or option and
shall not be responsible for any failure to do so or delay in so
doing.
(ii) In order to permit the Administrative Agent to
exercise the voting and other consensual rights which it may be
entitled to exercise pursuant hereto and to receive all dividends and
other distributions which it may be entitled to receive hereunder,
(i) each Loan Party shall promptly execute and deliver (or cause to
be executed and delivered) to the Administrative Agent all such
proxies, dividend payment orders and other instruments as the
Administrative Agent may from time to time reasonably request and
(ii) without limiting the effect of clause (i) above, such Loan Party
hereby grants to the Administrative Agent an irrevocable proxy to
vote all or any part of the Pledged Collateral and to exercise all
other rights, powers, privileges and remedies to which a holder of
the Pledged Collateral would be entitled (including giving or
withholding written consents of shareholders, partners or members, as
the case may be, calling special meetings of shareholders, partners
or members, as the case may be, and voting at such meetings), which
proxy shall be effective, automatically and without the necessity of
any action (including any transfer of any Pledged Collateral on the
record books of the issuer thereof) by any other person (including
the issuer of such Pledged Collateral or any officer or agent
thereof) during the continuance of an Event of Default and which
proxy shall only terminate upon the payment in full of the Secured
Obligations.
(iii) Each Loan Party hereby expressly authorizes and
instructs each issuer of any Pledged Collateral pledged hereunder by
such Loan Party to (i) comply with any instruction received by it
from the Administrative Agent in writing that (A) states that an
Event of Default has occurred and is continuing and (B) is otherwise
in accordance with the terms of this Agreement, without any other or
further instructions from such Loan Party, and each Loan Party agrees
that such issuer shall be fully protected in so complying and (ii)
unless otherwise expressly permitted hereby, pay any dividends or
other payments with respect to the Pledged Collateral directly to the
Administrative Agent.
SECTION 11.8. THE ADMINISTRATIVE AGENT'S APPOINTMENT AS
ATTORNEY-IN-FACT.
(a) Each Loan Party hereby irrevocably constitutes and
appoints the Administrative Agent and any officer or agent thereof, with full
power of substitution, as its and its Subsidiaries true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead of such Loan Party and in the name of such Loan Party, or in its own
name, from time to time in the Administrative Agent's discretion, for the
purpose of carrying out the terms of this Agreement, to take any and all
appropriate action and to execute and deliver any and all documents and
instruments which may be necessary and desirable to accomplish the purposes of
this Agreement and the transactions contemplated hereby, and, without limiting
the generality of the foregoing, hereby give the Administrative Agent the
power and right, on behalf of such Loan Party, without notice to or assent by
such Loan Party to do the following:
(i) to ask, demand, collect, receive and give
acquittances and receipts for any and all moneys due and to become
due under any Collateral and, in the name of such Loan Party, its own
name or otherwise, to take possession of and endorse and collect any
checks, drafts, notes, acceptances or other Instruments for the
payment of moneys due under any Collateral and to file any claim or
to take any other action or proceeding in any court of law or equity
or otherwise deemed appropriate by the Administrative Agent for the
purpose of collecting any and all such moneys due under any
Collateral whenever payable and to file any claim or to take any
other action or proceeding in any court of law or equity or otherwise
deemed appropriate by the Administrative Agent for the purpose of
collecting any and all such moneys due under any Collateral whenever
payable;
(ii) to pay or discharge taxes, liens, security interests
or other encumbrances levied or placed on or threatened against the
Collateral, to effect any repairs or any insurance called for by the
terms of this Agreement and to pay all or any part of the premiums
therefor and the costs thereof; and
(iii) (A) to direct any party liable for any payment
under any of the Collateral to make payment of any and all moneys
due, and to become due thereunder, directly to the Administrative
Agent or as the Administrative Agent shall direct; (B) to receive
payment of and receipt for any and all moneys, claims and other
amounts due, and to become due at any time, in respect of or arising
out of any Collateral; (C) to sign and indorse any invoices, freight
or express bills, bills of lading, storage or warehouse receipts,
drafts against debtors, assignments, verifications and notices in
connection with accounts and other documents constituting or relating
to the Collateral; (D) to commence and prosecute any suits, actions
or proceedings at law or equity in any court of competent
jurisdiction to collect the Collateral or any part thereof and to
enforce any other right in respect of any Collateral; (E) to defend
any suit, action or proceeding brought against any Loan Party with
respect to any Collateral of such Loan Party; (F) to settle,
compromise or adjust any suit, action or proceeding described above
and, in connection therewith, to give such discharges or releases as
the Administrative Agent may deem appropriate; (G) to license or, to
the extent permitted by an applicable license, sublicense, whether
general, special or otherwise, and whether on an exclusive or
non-exclusive basis, any trademarks, throughout the world for such
term or terms, on such conditions, and in such manner, as the
Administrative Agent shall in its sole discretion determine; and (H)
generally to sell, transfer, pledge, make any agreement with respect
to or otherwise deal with any of the Collateral as fully and
completely as though the Administrative Agent were the absolute owner
thereof for all purposes, and to do, at the Administrative Agent's
option and such Loan Party's expense, at any time, or from time to
time, all acts and things which the Administrative Agent reasonably
deems necessary to protect, preserve or realize upon the Collateral
and the Administrative Agent's Lien therein, in order to effect the
intent of this Agreement, all as fully and effectively as such Loan
Party might do.
(b) The Administrative Agent agrees that it will forbear
from exercising the power of attorney or any rights granted to the
Administrative Agent pursuant to this Section 11.8, except upon the occurrence
and during the continuation of an Event of Default. The Loan Parties hereby
ratify, to the extent permitted by law, all that said attorneys shall lawfully
do or cause to be done by virtue hereof. Exercise by the Administrative Agent
of the powers granted hereunder is not a violation of the automatic stay
provided by section 362 of the Bankruptcy Code and each Loan Party waives
applicability thereof. The power of attorney granted pursuant to this Section
11.8 is a power coupled with an interest and shall be irrevocable until the
Obligations are indefeasibly paid in full.
(c) The powers conferred on the Administrative Agent
hereunder are solely to protect the Administrative Agent's and the Lenders'
interests in the Collateral and shall not impose any duty upon it to exercise
any such powers. The Administrative Agent shall be accountable only for
amounts that it actually receives as a result of the exercise of such powers
and neither it nor any of its officers, directors, employees or agents shall
be responsible to any Loan Party for any act or failure to act, except for its
own gross negligence or willful misconduct.
(d) Each Loan Party also authorizes the Administrative
Agent, at any time and from time to time upon the occurrence and during the
continuation of any Event of Default or as otherwise expressly permitted by
this Agreement, (i) to communicate in its own name or the name of its
Subsidiaries with any party to any Contract with regard to the assignment of
the right, title and interest of such Loan Party in and under the Contracts
hereunder and other matters relating thereto and (ii) to execute any
endorsements, assignments or other instruments of conveyance or transfer with
respect to the Collateral.
(e) All Secured Obligations shall constitute, in accordance
with section 364(c)(1) of the Bankruptcy Code, claims against each Loan Party
in its Case which are administrative expense claims having priority over any
all administrative expenses of the kind specified in sections 503(b) or 507(b)
of the Bankruptcy Code.
SECTION 11.9. MODIFICATIONS.
(a) The Liens, lien priority, administrative priorities and
other rights and remedies granted to the Administrative Agent for the benefit
of the Lenders pursuant to this Agreement, the Final Order and the Amended and
Restated DIP Order (specifically, including, but not limited to, the
existence, perfection and priority of the Liens provided herein and therein
and the administrative priority provided herein and therein) shall not be
modified, altered or impaired in any manner by any other financing or
extension of credit or incurrence of Indebtedness by any of the Loan Parties
(pursuant to section 364 of the Bankruptcy Code or otherwise), or by any
dismissal or conversion of any of the Cases, or by any other act or omission
whatsoever. Without limitation, notwithstanding any such order, financing,
extension, incurrence, dismissal, conversion, act or omission:
(i) except for the Carve-Out having priority over
the Obligations, no costs or expenses of administration which have
been or may be incurred in any of the Cases or any conversion of the
same or in any other proceedings related thereto, and no priority
claims, are or will be prior to or on a parity with any claim of the
Administrative Agent or the Lenders against the Loan Parties in
respect of any Secured Obligation;
(ii) the liens and security interests granted
herein shall constitute
valid and perfected first priority liens and security interests
(subject only to (i) valid, perfected, nonavoidable and enforceable
Liens existing as of the Petition Date, other than the Liens on the
Collateral securing Prepetition Secured Indebtedness, (ii) the
Carve-Out, (iii) Liens permitted under Section 8.2(d) and (iv)
post-petition Liens permitted under Section 8.2(c), (e) and (i)) in
accordance with sections 364(c)(2) and (3) and 364(d)(1) of the
Bankruptcy Code, and shall be prior to all other liens and security
interests, now existing or hereafter arising, in favor of any other
creditor or any other Person whatsoever; and
(iii) the liens and security interests granted
hereunder shall continue valid and perfected without the necessity
that financing statements be filed or that any other action be taken
under applicable nonbankruptcy law.
(b) Notwithstanding any failure on the part of any Loan
Party or the Administrative Agent or the Lenders to perfect, maintain, protect
or enforce the liens and security interests in the Collateral granted
hereunder, the Final Order and the Amended and Restated DIP Order (when
entered) shall automatically, and without further action by any Person,
perfect such liens and security interests against the Collateral.
ARTICLE XII
THE ADMINISTRATIVE AGENT; THE ARRANGER
SECTION 12.1. AUTHORIZATION AND ACTION.
(a) Each Lender and each Issuer hereby appoints Citicorp as
the Administrative Agent hereunder and each Lender and each Issuer authorizes
the Administrative Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the other Loan Documents as are
delegated to the Administrative Agent under such agreements and to exercise
such powers as are reasonably incidental thereto. Without limiting the
foregoing, each Lender and each Issuer hereby authorizes the Administrative
Agent to execute and deliver, and to perform its obligations under, each of
the Loan Documents to which the Administrative Agent is a party, to exercise
all rights, powers and remedies that the Administrative Agent may have under
such Loan Documents and in the case of the Collateral Documents, to act as
agent for the Lenders, Issuers and the other Secured Parties under such
Collateral Documents.
(b) As to any matters not expressly provided for by this
Agreement and the other Loan Documents (including enforcement or collection),
the Administrative Agent shall not be required to exercise any discretion or
take any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
instructions of the Requisite Lenders, and such instructions shall be binding
upon all Lenders and each Issuer; provided, however, that the Administrative
Agent shall not be required to take any action that (i) the Administrative
Agent in good faith believes exposes it to personal liability unless the
Administrative Agent receives an indemnification satisfactory to it from the
Lenders and the Issuers with respect to such action or (ii) is contrary to
this Agreement or applicable law. The Administrative Agent agrees to give to
each Lender and each Issuer prompt notice of each notice given to it by any
Loan Party pursuant to the terms of this Agreement or the other Loan
Documents.
(c) In performing its functions and duties hereunder and
under the other Loan Documents, the Administrative Agent is acting solely on
behalf of the Lenders and the Issuers and its duties are entirely
administrative in nature. The Administrative Agent does not assume and shall
not be deemed to have assumed any obligation other than as expressly set forth
herein and in the other Loan Documents or any other relationship as the agent,
fiduciary or trustee of or for any Lender, Issuer or holder of any other
Obligation. The Administrative Agent may perform any of its duties under any
Loan Document by or through its agents or employees.
(d) The Arranger shall have no obligations or duties
whatsoever in such capacity under this Agreement or any other Loan Document
and shall incur no liability hereunder or thereunder in such capacity.
(e) The Administrative Agent shall execute all
acknowledgments expressly required by Section 13.1(a).
SECTION 12.2. AGENT'S RELIANCE, ETC. None of the
Administrative Agent, any of its Affiliates or any of their respective
directors, officers, agents or employees shall be liable for any action taken
or omitted to be taken by it, him, her or them under or in connection with
this Agreement or the other Loan Documents, except for its, his, her or their
own gross negligence or willful misconduct. Without limiting the foregoing,
the Administrative Agent (a) may treat the payee of any Note as its holder
until such Note has been assigned in accordance with Section 13.2, (b) may
rely on the Register to the extent set forth in Section 13.2(c), (c) may
consult with legal counsel (including counsel to the Borrower or any other
Loan Party), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts, (d) makes no warranty or representation to any Lender or Issuer and
shall not be responsible to any Lender or Issuer for any statements,
warranties or representations made by or on behalf of the Borrower or any of
its Subsidiaries in or in connection with this Agreement or any other Loan
Document, (e) shall not have any duty to ascertain or to inquire either as to
the performance or observance of any term, covenant or condition of this
Agreement or any other Loan Document, as to the financial condition of any
Loan Party, or as to the existence or possible existence of any Default or
Event of Default, (f) shall not be responsible to any Lender or Issuer for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the attachment, perfection or priority of any Lien created or
purported to be created under or in connection with, this Agreement, any other
Loan Document or any other instrument or document furnished pursuant hereto or
thereto and (g) shall incur no liability under or in respect of this Agreement
or any other Loan Document by acting upon any notice, consent, certificate or
other instrument or writing (which writing may be a telecopy or electronic
mail) or any telephone message believed by it to be genuine and signed or sent
by the proper party or parties.
Section 12.3. Posting of Approved Electronic Communications.
(a) Each of the Lenders, the Issuers, the Borrower and the
Subsidiary Guarantors agree that the Administrative Agent may, but shall not
be obligated to, make the Approved Electronic Communications available to the
Lenders and Issuers by posting such Approved Electronic Communications on
IntraLinks(TM) or a substantially similar electronic platform chosen by the
Administrative Agent to be its electronic transmission system (the "Approved
Electronic Platform").
(b) Although the Approved Electronic Platform and its
primary web portal are secured with generally-applicable security procedures
and policies implemented or modified by the Administrative Agent from time to
time (including, as of the Effective Date, a dual firewall and a User
ID/Password Authorization System) and the Approved Electronic Platform is
secured through a single-user-per-deal authorization method whereby each user
may access the Approved Electronic Platform only on a deal-by-deal basis, each
of the Lenders, the Issuers, the Borrower and the Subsidiary Guarantors
acknowledges and agrees that the distribution of material through an
electronic medium is not necessarily secure and that there are confidentiality
and other risks associated with such distribution. In consideration for the
convenience and other benefits afforded by such distribution and for the other
consideration provided hereunder, the receipt and sufficiency of which is
hereby acknowledged, each of the Lenders, the Issuers, the Borrower and the
Subsidiary Guarantors hereby approves distribution of the Approved Electronic
Communications through the Approved Electronic Platform and understands and
assumes the risks of such distribution.
(c) THE APPROVED ELECTRONIC COMMUNICATIONS AND THE APPROVED
ELECTRONIC PLATFORM ARE PROVIDED "AS IS" AND "AS AVAILABLE". NONE OF THE
ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR REPRESENTATIVES (THE
"AGENT AFFILIATES") WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF THE
APPROVED ELECTRONIC COMMUNICATIONS AND THE APPROVED ELECTRONIC PLATFORM AND
EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED
ELECTRONIC COMMUNICATIONS AND THE APPROVED ELECTRONIC PLATFORM. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY (INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE
DEFECTS) IS MADE BY THE AGENT AFFILIATES IN CONNECTION WITH THE APPROVED
ELECTRONIC COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM.
(d) Each of the Lenders, the Issuers, the Borrower and the
Subsidiary Guarantors agree that the Administrative Agent may, but (except as
may be required by applicable law) shall not be obligated to, store the
Approved Electronic Communications on the Approved Electronic Platform in
accordance with the Administrative Agent's generally-applicable document
retention procedures and policies.
SECTION 12.4. THE ADMINISTRATIVE AGENT INDIVIDUALLY. With
respect to its Ratable Portion, Citicorp shall have and may exercise the same
rights and powers hereunder and is subject to the same obligations and
liabilities as and to the extent set forth herein for any other Lender. The
terms "Lenders", "Revolving Credit Lenders", "Term Loan Lenders", "Requisite
Lenders", "Requisite Revolving Credit Lenders", "Requisite Term Loan Lenders"
and any similar terms shall, unless the context clearly otherwise indicates,
include, without limitation, the Administrative Agent in its individual
capacity as a Lender, a Revolving Credit Lender, a Term Loan Lender or as one
of the Requisite Lenders, Requisite Revolving Credit Lenders or Requisite Term
Loan Lenders. Citicorp and its Affiliates may accept deposits from, lend money
to, and generally engage in any kind of banking, trust or other business with
any Loan Party as if Citicorp were not acting as the Administrative Agent.
SECTION 12.5. LENDER CREDIT DECISION. Each Lender and each
Issuer acknowledges that it shall, independently and without reliance upon the
Administrative Agent or any other Lender conduct its own independent
investigation of the financial condition and affairs of the Borrower and each
other Loan Party in connection with the making and continuance of the Loans
and with the issuance of the Letters of Credit. Each Lender and each Issuer
also acknowledges that it shall, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and other
Loan Documents.
SECTION 12.6. INDEMNIFICATION. Each Lender agrees to
indemnify the Administrative Agent and each of its Affiliates, and each of
their respective directors, officers, employees, agents and advisors (to the
extent not reimbursed by the Borrower), from and against such Lender's
aggregate Ratable Portion of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses and
disbursements (including fees, expenses and disbursements of financial and
legal advisors) of any kind or nature whatsoever that may be imposed on,
incurred by, or asserted against, the Administrative Agent or any of its
Affiliates, directors, officers, employees, agents and advisors in any way
relating to or arising out of this Agreement or the other Loan Documents or
any action taken or omitted by the Administrative Agent under this Agreement
or the other Loan Documents; provided, however, that no Lender shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's or such Affiliate's gross negligence or willful
misconduct. Without limiting the foregoing, each Lender agrees to reimburse
the Administrative Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including fees, expenses and disbursements of
financial and legal advisors) incurred by the Administrative Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of its rights or
responsibilities under, this Agreement or the other Loan Documents, to the
extent that the Administrative Agent is not reimbursed for such expenses by
the Borrower or another Loan Party.
SECTION 12.7. SUCCESSOR AGENT. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Borrower. Upon any such resignation, the Requisite Lenders shall have the
right to appoint a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Requisite Lenders,
and shall have accepted such appointment, within 10 days after the retiring
Administrative Agent's giving of notice of resignation, then the retiring
Administrative Agent's resignation shall nevertheless thereupon become
effective, and the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, selected from among the
Lenders or, if no Lender shall have accepted such appointment, the Lenders
shall assume and perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Requisite Lenders appoint a
successor Administrative Agent as provided for above. In either case, such
appointment shall be subject to the prior written approval of the Borrower
(which approval may not be unreasonably withheld and shall not be required
upon the occurrence and during the continuance of an Event of Default). Upon
the acceptance of any appointment as Administrative Agent by a successor
Administrative Agent, such successor Administrative Agent shall succeed to and
become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations under this Agreement and the other
Loan Documents. Prior to any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the retiring Administrative Agent shall
take such action as may be reasonably necessary to assign to the successor
Administrative Agent its rights as Administrative Agent under the Loan
Documents. After such resignation, the retiring Administrative Agent shall
continue to have the benefit of this Article XII as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this
Agreement and the other Loan Documents.
Section 12.8. Concerning the Collateral and the Collateral
Documents.
(a) Each Lender and each Issuer agrees that any action taken
by the Administrative Agent or the Requisite Lenders (or, where required by
the express terms of this Agreement, a greater proportion of the Lenders) in
accordance with the provisions of this Agreement or of the other Loan
Documents, and the exercise by the Administrative Agent or the Requisite
Lenders (or, where so required, such greater proportion) of the powers set
forth herein or therein, together with such other powers as are reasonably
incidental thereto, shall be authorized and binding upon all of the Lenders,
Issuers and other Secured Parties. Without limiting the generality of the
foregoing, the Administrative Agent shall have the sole and exclusive right
and authority to (i) act as the disbursing and collecting agent for the
Lenders and the Issuers with respect to all payments and collections arising
in connection herewith and with the Collateral Documents, (ii) execute and
deliver each Collateral Document and accept delivery of each such agreement
delivered by the Borrower or any of its Subsidiaries, (iii) act as collateral
agent for the Lenders, the Issuers and the other Secured Parties for purposes
of the perfection of all security interests and Liens created by such
agreements and all other purposes stated therein, provided, however, that the
Administrative Agent hereby appoints, authorizes and directs each Lender and
Issuer to act as collateral sub-agent for the Administrative Agent, the
Lenders and the Issuers for purposes of the perfection of all security
interests and Liens with respect to the Collateral, including any Deposit
Accounts maintained by a Loan Party with, and cash and Cash Equivalents held
by, such Lender or such Issuer, (iv) manage, supervise and otherwise deal with
the Collateral, including the making of Protective Advances in an aggregate
amount not to exceed the lesser of $5,000,000 and the aggregate amount of the
unused Revolving Credit Commitments, (v) take such action as is necessary or
desirable to maintain the perfection and priority of the security interests
and Liens created or purported to be created by the Collateral Documents and
(vi) except as may be otherwise specifically restricted by the terms hereof or
of any other Loan Document, exercise all remedies given to the Administrative
Agent, the Lenders, the Issuers and the other Secured Parties with respect to
the Collateral under the Loan Documents relating thereto, the Orders,
applicable law or otherwise.
(b) Each of the Lenders and the Issuers hereby consents to
the release and hereby directs, in accordance with the terms hereof, the
Administrative Agent to release (or, in the case of clause (ii) below, release
or subordinate) any Lien held by the Administrative Agent for the benefit of
the Lenders and the Issuers against any of the following:
(i) all of the Collateral and all Loan Parties,
upon termination of the Commitments and payment and satisfaction (or,
in the case of the Term Loans, conversion) in full of all Loans, all
Reimbursement Obligations and all other Obligations that the
Administrative Agent has been notified in writing are then due and
payable (and, in respect of contingent Letter of Credit Obligations,
with respect to which cash collateral has been deposited or a back-up
letter of credit has been issued, in either case in the appropriate
currency and on terms satisfactory to the Administrative Agent and
the applicable Issuers);
(ii) any assets that are subject to a Lien
permitted by Section 8.2(d) or (e) (Liens, Etc.); and
(iii) any part of the Collateral sold or disposed
of by a Loan Party if such sale or disposition is permitted by this
Agreement (or permitted pursuant to a waiver or consent to a
transaction otherwise prohibited by this Agreement).
Each of the Lenders and the Issuers hereby directs the
Administrative Agent to execute and deliver or file such termination and
partial release statements and do such other things as are necessary to
release Liens to be released pursuant to this Section 12.8 promptly upon the
effectiveness of any such release.
Section 12.9. Collateral Matters Relating to Related
Obligations.
The benefit of the Loan Documents and of the provisions of
this Agreement relating to the Collateral shall extend to and be available in
respect of any Secured Obligation arising under any Hedging Contract or Cash
Management Obligation or that is otherwise owed to Persons other than the
Administrative Agent, the Lenders and the Issuers (collectively, "Related
Obligations") solely on the condition and understanding, as among the
Administrative Agent and all Secured Parties, that (a) the Related Obligations
shall be entitled to the benefit of the Loan Documents and the Collateral to
the extent expressly set forth in this Agreement and the other Loan Documents
and to such extent the Administrative Agent shall hold, and have the right and
power to act with respect to, the Guaranty and the Collateral on behalf of and
as agent for the holders of the Related Obligations, but the Administrative
Agent is otherwise acting solely as agent for the Lenders and the Issuers and
shall have no fiduciary duty, duty of loyalty, duty of care, duty of
disclosure or other obligation whatsoever to any holder of Related
Obligations, (b) all matters, acts and omissions relating in any manner to the
Guaranty, the Collateral, or the omission, creation, perfection, priority,
abandonment or release of any Lien, shall be governed solely by the provisions
of this Agreement and the other Loan Documents and no separate Lien, right,
power or remedy shall arise or exist in favor of any Secured Party under any
separate instrument or agreement or in respect of any Related Obligation, (c)
each Secured Party shall be bound by all actions taken or omitted, in
accordance with the provisions of this Agreement and the other Loan Documents,
by the Administrative Agent and the Requisite Lenders, each of whom shall be
entitled to act at its sole discretion and exclusively in its own interest
given its own Commitments and its own interest in the Loans, Letter of Credit
Obligations and other Obligations to it arising under this Agreement or the
other Loan Documents, without any duty or liability to any other Secured Party
or as to any Related Obligation and without regard to whether any Related
Obligation remains outstanding or is deprived of the benefit of the Collateral
or becomes unsecured or is otherwise affected or put in jeopardy thereby, (d)
no holder of Related Obligations and no other Secured Party (except the
Administrative Agent, the Lenders and the Issuers, to the extent set forth in
this Agreement) shall have any right to be notified of, or to direct, require
or be heard with respect to, any action taken or omitted in respect of the
Collateral or under this Agreement or the Loan Documents and (e) no holder of
any Related Obligation shall exercise any right of setoff, banker's lien or
similar right except to the extent provided in Section 13.6 (Right of Set-off)
and then only to the extent such right is exercised in compliance with Section
13.7 (Sharing of Payments, Etc.).
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. AMENDMENTS, WAIVERS, ETC.
(a) No amendment or waiver of any provision of this
Agreement or any other Loan Document nor consent to any departure by any Loan
Party therefrom shall in any event be effective unless the same shall be in
writing and signed by the Requisite Lenders (or by the Administrative Agent
with the consent of the Requisite Lenders) and, in the case of any amendment,
by the Borrower, and then any such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given;
provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by each Lender directly affected thereby, in addition to
the Requisite Lenders (or the Administrative Agent with the consent thereof),
do any of the following:
(i) waive any condition specified in Section 3.1 or
3.2 on the Effective Date;
(ii) subject such Lender to any additional
obligation;
(iii) extend the scheduled final maturity of any
Loan owing to such Lender, or waive, reduce or postpone any scheduled
date fixed for the payment or reduction of principal or interest of
any such Loan or fees owing to such Lender (it being understood that
Section 2.9 does not provide for scheduled dates fixed for payment)
or for the reduction of such Lender's Commitment;
(iv) reduce, or release the Borrower from its
obligations to repay, the principal amount of any Loan or
Reimbursement Obligation owing to such Lender (other than by the
payment or prepayment thereof);
(v) reduce the rate of interest (or amend the
definitions of the terms "Base Rate" or "Eurodollar Rate" or any
related definitions to effectively reduce the rate of interest) on
any Loan or Reimbursement Obligations outstanding and owing to such
Lender or any fee payable hereunder to such Lender;
(vi) expressly subordinate any of the Secured
Obligations or any Liens securing the Secured Obligations;
(vii) postpone any scheduled date fixed for payment
of such interest or fees owing to such Lender or waive any such
payment;
(viii) change the aggregate Ratable Portions of
Lenders required for any or all Lenders to take any action hereunder;
(ix) release all or substantially all of the
Collateral except as provided in Section 12.8(b) or release the
Borrower from its payment obligation to such Lender under this
Agreement or the Notes owing to such Lender (if any) or release any
Subsidiary Guarantor from its obligations under the Guaranty except
in connection with the sale or other disposition of a Subsidiary
Guarantor (or all or substantially all of the assets thereof)
permitted by this Agreement (or permitted pursuant to a waiver or
consent of a transaction otherwise prohibited by this Agreement); or
(x) amend Sections 2.9 (other than amendments
contemplated by clause (xviii) of this Section 13.1(a)), 12.8(b),
13.7, this Section 13.1 or the definitions of the terms "Requisite
Lenders", "Requisite Revolving Credit Lenders", "Requisite Term Loan
Lenders" or "Ratable Portion";
and provided, further, that:
(xi) any amendment, modification or waiver of any
of the terms and provisions (and related definitions) related solely
to the borrowings of Revolving Credit Loans (including with respect
to any conditions to such borrowings) and payment procedures under
the Revolving Credit Facility shall require the consent of only the
Administrative Agent, the Requisite Revolving Credit Lenders and the
Borrower;
(xii) any amendment, modification or waiver of any
of the terms and provisions (and related definitions) related solely
to the borrowings of Term Loans (including with respect to any
conditions to such borrowings) and payment procedures under the Term
Loan Facility shall require the consent of only the Administrative
Agent, the Requisite Term Loan Lenders and the Borrower;
(xiii) any amendment, modification or waiver of any
condition precedent to any Revolving Credit Borrowing or Issuance of
any Letter of Credit set forth in, and solely for the purpose of,
Section 3.2 after the Effective Date (including, without limitation,
the waiver of any Default or Event of Default required to be waived
for purposes of Section 3.2 in order for such extension of credit to
be made) shall require the consent of only the Administrative Agent,
the Revolving Credit Lenders and the Borrower;
(xiv) any amendment, modification or waiver of any
provision of Sections 2.19, 5.1(b), 5.2(b), 8.5, 8.6, 8.7, 8.10(b)
(with respect to pre-petition Indebtedness only), 8.10(c), 8.17 or
8.18, Schedule 1.1 or the definitions of "Borrowing Base",
"Carve-Out", "Eligible Installment Contracts", "Eligible Inventory"
or "Permitted Transactions" or any amendment or modification of
Section 7.14 (other than any amendment or modification contemplated
by clause (xvi) below) shall require the consent of only the
Administrative Agent, the Borrower, the Requisite Term Loan Lenders
and the Requisite Revolving Credit Lenders;
(xv) any amendment, modification or waiver of any
provision of Schedule 2.19 shall require the consent of only the
Borrower, the Requisite Term Loan Lenders and, if any such amendment,
modification or waiver is adverse to the Revolving Credit Lenders,
the Requisite Revolving Credit Lenders (it being understood that any
amendment, modification or waiver with respect to the terms or amount
of the New Common Equity which ▇▇▇▇▇▇▇ is entitled to receive in a
Plan of Reorganization is not adverse to the Revolving Credit
Lenders), and the acknowledgment of the Administrative Agent;
(xvi) any waiver of any provision of Section 7.14
and any extension of the date referred to in Section 7.14 to a later
date shall require the consent of only the Borrower and the Requisite
Term Loan Lenders, and the acknowledgment of the Administrative
Agent;
(xvii) (x) any modification of the application of
payments to the Term Loans among the Term Loan Lenders pursuant to
Section 2.9 shall require the consent of only the Borrower and the
Requisite Term Loan Lenders and the acknowledgment of the
Administrative Agent and (y) any modification of the application of
payments to the Revolving Loans among the Revolving Credit Lenders
pursuant to Section 2.9 shall require the consent of only the
Borrower and the Requisite Revolving Credit Lenders and the
acknowledgment of the Administrative Agent;
(xviii) any amendment, modification or waiver of
Section 8.4 shall require (A) prior to the Discharge of Revolving
Credit Obligations, the consent only of the Borrower and the
Requisite Revolving Credit Lenders and the acknowledgment of the
Administrative Agent and (B) thereafter, the consent of only the
Borrower and the Requisite Lenders and the acknowledgment of the
Administrative Agent;
(xix) any amendment, modification or waiver of any
provision of Article XIII (other than amendments contemplated by
clause (x) of this Section 13.1(a)) shall require the consent of only
the Administrative Agent, the Borrower, the Requisite Lenders and, to
the extent the Term Loan Lenders are directly affected thereby, the
Requisite Term Loan Lenders, and to the extent the Revolving Credit
Lenders are directly affected thereby, the Requisite Revolving Credit
Lenders;
(xx) no amendment, waiver or consent shall, unless
in writing and signed by the Borrower, the Administrative Agent, the
Requisite Revolving Credit Lenders, the Requisite Term Loan Lenders
and each Lender directly affected thereby, increase the Commitment of
any Lender;
(xxi) (x) any increase in the "Applicable Margin"
with respect to Revolving Loans by more than 200 basis points per
annum shall require the consent of only the Administrative Agent, the
Borrower, the Requisite Term Loan Lenders and the Requisite Revolving
Credit Lenders, (y) any increase in the "Applicable Margin" with
respect to Term Loans by more than 200 basis points per annum shall
require the consent of only the Administrative Agent, the Borrower,
the Requisite Term Loan Lenders and the Requisite Revolving Credit
Lenders and (z) any increase in the "Applicable Unused Commitment Fee
Rate" by more than 50 basis points per annum shall require the
consent of only the Administrative Agent, the Borrower, the Requisite
Term Loan Lenders and the Requisite Revolving Credit Lenders;
(xxii) no amendment, waiver or consent shall,
unless in writing and signed by any Special Purpose Vehicle that has
been granted an option pursuant to Section 13.2(f) (Assignments and
Participations), affect the grant or nature of such option or the
right or duties of such Special Purpose Vehicle hereunder;
(xxiii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition
to the parties required above to take such action, affect the rights
or duties of the Administrative Agent under this Agreement or the
other Loan Documents; and
(xxiv) no amendment, waiver or consent shall,
unless in writing and signed by the Swing Loan Lender in addition to
the parties required above to take such action, affect the rights or
duties of the Swing Loan Lender under this Agreement or the other
Loan Documents;
and provided, further, that the Administrative Agent may, with the consent of
the Borrower, amend, modify or supplement this Agreement to cure any
typographical error, defect or inconsistency, so long as such amendment,
modification or supplement does not adversely affect the right of any Lender
or any Issuer.
(b) The Administrative Agent may, but shall have no
obligation to, with the written concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of such Lender. Any waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it was given. No notice to or demand on the Borrower in any
case shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances.
(c) If, in connection with any proposed amendment,
modification, waiver or termination (a "Proposed Change") requiring the
consent of all affected Revolving Credit Lenders, the consent of the Requisite
Lenders is obtained but the consent of any Revolving Credit Lender whose
consent is required is not obtained (any such Lender whose consent is not
obtained as described in this Section 13.1 being referred to as a
"Non-Consenting Lender"), then, as long as the Lender acting as the
Administrative Agent is not a Non-Consenting Lender, at the Borrower's
request, any Eligible Assignee acceptable to the Administrative Agent shall
have the right with the Administrative Agent's consent and in the
Administrative Agent's sole discretion (but shall have no obligation) to
purchase from such Non-Consenting Lender, and such Non-Consenting Lender
agrees that it shall, upon the Administrative Agent's request, sell and assign
to the Lender acting as the Administrative Agent or such Eligible Assignee,
all of the Revolving Credit Commitments and Revolving Credit Outstandings of
such Non-Consenting Lender for an amount equal to the principal balance of all
such Revolving Loans held by the Non-Consenting Lender and all accrued and
unpaid interest and fees with respect thereto through the date of sale;
provided, however, that such purchase and sale shall not be effective until
(x) the Administrative Agent shall have received from such Eligible Assignee
an agreement in form and substance satisfactory to the Administrative Agent
and the Borrower whereby such Eligible Assignee shall agree to be bound by the
terms hereof and (y) such Non-Consenting Lender shall have received payments
of all Revolving Loans held by it and all accrued and unpaid interest and fees
with respect thereto through the date of the sale. Each Revolving Credit
Lender agrees that, if it becomes a Non-Consenting Lender, it shall execute
and deliver to the Administrative Agent an Assignment an Acceptance to
evidence such sale and purchase and shall deliver to the Administrative Agent
any Revolving Credit Note (if the assigning Revolving Credit Lender's Loans
are evidenced by a Revolving Credit Note) subject to such Assignment and
Acceptance; provided, however, that the failure of any Non-Consenting Lender
to execute an Assignment and Acceptance shall not render such sale and
purchase (and the corresponding assignment) invalid.
SECTION 13.2. ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Lender may sell, transfer, negotiate or assign to
one or more Eligible Assignees all or a portion of its rights and obligations
hereunder (including all of its rights and obligations with respect to the
Term Loans, the Revolving Loans, the Swing Loans and the Letters of Credit);
provided, however, that (i) if any such assignment shall be of the assigning
Lender's Revolving Credit Outstandings and Revolving Credit Commitments, such
assignment shall cover the same percentage of such Lender's Revolving Credit
Outstandings and Revolving Credit Commitments, (ii) the aggregate amount being
assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event
(if less than the assignor's entire interest) be less than $2,500,000 or an
integral multiple of $1,000,000 in excess thereof, except, in either case, (A)
with the consent of the Borrower and the Administrative Agent or (B) if such
assignment is being made to a Lender or an Affiliate or Approved Fund of such
Lender and (iii) (A) with respect to any such assignment of Revolving Credit
Outstandings and Revolving Credit Commitments, if such Eligible Assignee is
not, prior to the date of such assignment, a Revolving Credit Lender or an
Affiliate or Approved Fund of a Revolving Credit Lender, such assignment shall
be subject to the prior consent of the Administrative Agent and the Borrower
(which consents shall not be unreasonably withheld or delayed) and (B) with
respect to any such assignment of Term Loans, if such Eligible Assignee is
not, prior to the date of such assignment, an Affiliate of ▇▇▇▇▇▇▇, such
assignment shall be subject to the prior consent of the Administrative Agent
(which consent shall not be unreasonably withheld or delayed) and the Borrower
(in its sole discretion); and provided, further, that, notwithstanding any
other provision of this Section 13.2, the consent of the Borrower shall not be
required (x) except with respect to any consent required by clause (iii)(B) of
the proviso above, for any assignment occurring when any Event of Default
shall have occurred and be continuing and (y) except as set forth in the
Commitment Letter, dated January 25, 2005, from the Arranger and Citicorp to
the Borrower, for any assignment by any Affiliate of the Administrative Agent
made prior to the Syndication Completion Date of its Commitments and Loans
held on the Effective Date. Any such assignment need not be ratable as among
the Term Loan Facility and the Revolving Credit Facility. Anything herein to
the contrary notwithstanding, the Borrower shall not, at any time, be
obligated to make any payment under Section 2.15 (Capital Adequacy), 2.16
(Taxes) or 2.14(d) (Illegality) to any Affiliate of ▇▇▇▇▇▇▇ that becomes a
Term Loan Lender in excess of the amount the Borrower would have been
obligated to pay to ▇▇▇▇▇▇▇ in respect thereof if such Affiliate had not been
assigned the rights of ▇▇▇▇▇▇▇ hereunder.
(b) The parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording, an
Assignment and Acceptance, together with any Note (if the assigning Lender's
Loans are evidenced by a Note) subject to such assignment. Upon the execution,
delivery, acceptance and recording of any Assignment and Acceptance and, other
than in respect of assignments made pursuant to Section 2.17 (Substitution of
Lenders) and Section 13.1(c) (Amendments, Waivers, Etc.) and to ▇▇▇▇▇▇▇ or an
Affiliate of ▇▇▇▇▇▇▇, the receipt by the Administrative Agent from the
assignee of an assignment fee in the amount of $3,500 from and after the
effective date specified in such Assignment and Acceptance, (i) the assignee
thereunder shall become a party hereto and, to the extent that rights and
obligations under the Loan Documents have been assigned to such assignee
pursuant to such Assignment and Acceptance, have the rights and obligations of
a Lender and, if such Lender were an Issuer, of such Issuer hereunder and
thereunder, (ii) the Notes (if any) corresponding to the Loans assigned
thereby shall be transferred to such assignee by notation in the Register and
(iii) the assignor thereunder shall, to the extent that rights and obligations
under this Agreement have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights (except for those surviving the payment in
full of the Obligations) and be released from its obligations under the Loan
Documents, other than those relating to events or circumstances occurring
prior to such assignment (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender's rights and
obligations under the Loan Documents, such Lender shall cease to be a party
hereto).
(c) The Administrative Agent shall maintain at its address
referred to in Section 13.8 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recording of the names and
addresses of the Lenders and the Revolving Credit Commitments of and principal
amount of the Loans and Letter of Credit Obligations owing to each Lender from
time to time (the "Register"). Any assignment pursuant to this Section 13.2
shall not be effective until such assignment is recorded in the Register. The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Loan Parties, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register as a
Lender for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower, the Administrative Agent or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(d) Notwithstanding anything to the contrary contained in
clause (b) above, the Loans (including the Notes evidencing such Loans) are
registered obligations and the right, title, and interest of the Lenders and
their assignees in and to such Loans shall be transferable only upon notation
of such transfer in the Register. A Note shall only evidence the Lender's or
an assignee's right, title and interest in and to the related Loan, and in no
event is any such Note to be considered a bearer instrument or obligation.
This Section 13.2 shall be construed so that the Loans are at all times
maintained in "registered form" within the meaning of Sections 163(f),
871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related
regulations (or any successor provisions of the Internal Revenue Code or such
regulations). Solely for purposes of this and for tax purposes only, the
Administrative Agent shall act as the Borrower's agent for purposes of
maintaining such notations of transfer in the Register.
(e) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender, an assignee and, if required, the Borrower,
the Administrative Agent shall, if such Assignment and Acceptance has been
completed, (i) accept such Assignment and Acceptance, (ii) record or cause to
be recorded the information contained therein in the Register and (iii) give
prompt notice thereof to the Borrower. Within five Business Days after its
receipt of such notice, the Borrower, at its own expense, shall, if requested
by such assignee, execute and deliver to the Administrative Agent, new Notes
to the order of such assignee in an amount equal to the Commitments and Loans
assumed by it pursuant to such Assignment and Acceptance and, if the assigning
Lender has surrendered any Note for exchange in connection with the assignment
and has retained Commitments and Loans hereunder, new Notes to the order of
the assigning Lender in an amount equal to the Commitments and Loans retained
by it hereunder. Such new Notes shall be dated the same date as the
surrendered Notes and be in substantially the form of Exhibit B-1 (Form of
Revolving Credit Note) or Exhibit B-2 (Form of Term Note), as applicable.
(f) In addition to the other assignment rights provided in
this Section 13.2, each Revolving Credit Lender may do each of the following:
(i) grant to a Special Purpose Vehicle the option
to make all or any part of any Loan that such Lender would otherwise
be required to make hereunder and the exercise of such option by any
such Special Purpose Vehicle and the making of Loans pursuant thereto
shall satisfy (once and to the extent that such Loans are made) the
obligation of such Lender to make such Loans thereunder, provided,
however, that (x) nothing herein shall constitute a commitment or an
offer to commit by such a Special Purpose Vehicle to make Loans
hereunder and no such Special Purpose Vehicle shall be liable for any
indemnity or other Obligation (other than the making of Loans for
which such Special Purpose Vehicle shall have exercised an option,
and then only in accordance with the relevant option agreement) and
(y) such Lender's obligations under the Loan Documents shall remain
unchanged, such Lender shall remain responsible to the other parties
for the performance of its obligations under the terms of this
Agreement and shall remain the holder of the Obligations for all
purposes hereunder; and
(ii) assign, as collateral or otherwise, any of its
rights under this Agreement, whether now owned or hereafter acquired
(including rights to payments of principal or interest on the Loans),
to (A) without notice to or consent of the Administrative Agent or
the Borrower, any Federal Reserve Bank (pursuant to Regulation A of
the Federal Reserve Board) and (B) without consent of the
Administrative Agent or the Borrower, (1) any holder of, or trustee
for the benefit of, the holders of such Lender's Securities and (2)
any Special Purpose Vehicle to which such Lender has granted an
option pursuant to clause (i) above;
provided, however, that no such assignment or grant shall release such Lender
from any of its obligations hereunder except as expressly provided in clause
(i) above and except, in the case of a subsequent foreclosure pursuant to an
assignment as collateral, if such foreclosure is made in compliance with the
other provisions of this Section 13.2 other than this clause (f) or clause (g)
below. Each party hereto acknowledges and agrees that, prior to the date that
is one year and one day after the payment in full of all outstanding
commercial paper or other senior debt of any such Special Purpose Vehicle,
such party shall not institute against, or join any other Person in
instituting against, any Special Purpose Vehicle that has been granted an
option pursuant to this clause (f) any bankruptcy, reorganization, insolvency
or liquidation proceeding (such agreement shall survive the payment in full of
the Obligations). The terms of the designation of, or assignment to, such
Special Purpose Vehicle shall not restrict such Lender's ability to, or grant
such Special Purpose Vehicle the right to, consent to any amendment or waiver
to this Agreement or any other Loan Document or to the departure by the
Borrower from any provision of this Agreement or any other Loan Document
without the consent of such Special Purpose Vehicle except, as long as the
Administrative Agent and the Lenders, Issuers and other Secured Parties shall
continue to, and shall be entitled to continue to, deal solely and directly
with such Lender in connection with such Lender's obligations under this
Agreement, to the extent any such consent would reduce the principal amount
of, or the rate of interest on, any Obligations, amend this clause (f) or
postpone any scheduled date of payment of such principal or interest. Each
Special Purpose Vehicle shall be entitled to the benefits of Sections 2.15
(Capital Adequacy) and 2.16 (Taxes) and of Section 2.14(d) (Illegality) as if
it were such Lender; provided, however, that anything herein to the contrary
notwithstanding, the Borrower shall not, at any time, be obligated to make
under Section 2.15 (Capital Adequacy), 2.16 (Taxes) or 2.14(d) (Illegality) to
any such Special Purpose Vehicle and any such Lender any payment in excess of
the amount the Borrower would have been obligated to pay to such Lender in
respect of such interest if such Special Purpose Vehicle had not been assigned
the rights of such Lender hereunder.
(g) Each Lender may sell participations to one or more
Persons in or to all or a portion of its rights and obligations under the Loan
Documents (including all its rights and obligations with respect to the Term
Loans, Revolving Loans and Letters of Credit); provided, however, that with
respect to any such participation in Term Loans, if such Person is not, prior
to the date of such participation, an Affiliate of ▇▇▇▇▇▇▇, such participation
shall be subject to the prior consent of the Administrative Agent (which
consent shall not be unreasonably withheld or delayed) and the Borrower (in
its sole discretion). The terms of such participation shall not, in any event,
require the participant's consent to any amendments, waivers or other
modifications of any provision of any Loan Documents, the consent to any
departure by any Loan Party therefrom, or to the exercising or refraining from
exercising any powers or rights such Lender may have under or in respect of
the Loan Documents (including the right to enforce the obligations of the Loan
Parties), except if any such amendment, waiver or other modification or
consent would (i) reduce the amount, or postpone any date fixed for, any
amount (whether of principal, interest or fees) payable to such participant
under the Loan Documents, to which such participant would otherwise be
entitled under such participation or (ii) result in the release of all or
substantially all of the Collateral other than in accordance with Section
12.8(b). In the event of the sale of any participation by any Lender, (A) such
Lender's obligations under the Loan Documents shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties for the
performance of such obligations, (C) such Lender shall remain the holder of
such Obligations for all purposes of this Agreement, and (D) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Each participant shall be entitled to the
benefits of Sections 2.14(d), 2.15 and 2.16 as if it were a Lender; provided,
however, that anything herein to the contrary notwithstanding, the Borrower
shall not, at any time, be obligated to make under Section 2.14(d), 2.15 or
2.16 to the participants in the rights and obligations of any Lender (together
with such Lender) any payment in excess of the amount the Borrower would have
been obligated to pay to such Lender in respect of such interest had such
participation not been sold.
(h) Any Issuer may at any time assign its rights and
obligations hereunder to any other Lender by an instrument in form and
substance satisfactory to the Borrower, the Administrative Agent, such Issuer
and such Lender. If any Issuer ceases to be a Lender hereunder by virtue of
any assignment made pursuant to this Section 11.2, then, as of the effective
date of such cessation, such Issuer's obligations to Issue Letters of Credit
pursuant to Section 2.4 shall terminate and such Issuer shall be an Issuer
hereunder only with respect to outstanding Letters of Credit issued prior to
such date.
SECTION 13.3. COSTS AND EXPENSES.
(a) The Borrower agrees upon demand to pay, or reimburse the
Administrative Agent for, all of the Administrative Agent's reasonable
internal per diem audit, appraisal and valuation costs and expenses, and all
of the Administrative Agent's reasonable out-of-pocket audit, legal,
appraisal, valuation, filing, document duplication and reproduction and
investigation expenses and for all other reasonable out-of-pocket costs and
expenses of every type and nature (including the reasonable fees, expenses and
disbursements of the Administrative Agent's counsel, Weil, Gotshal & ▇▇▇▇▇▇
LLP, local legal counsel, auditors, accountants, appraisers, printers,
insurance and environmental advisors, and other consultants and agents)
incurred by the Administrative Agent in connection with any of the following:
(i) the Administrative Agent's audit and investigation of the Borrower and its
Subsidiaries in connection with the preparation, negotiation or execution of
any Loan Document or the Administrative Agent's periodic audits of the
Borrower or any of its Subsidiaries, as the case may be, (ii) the preparation,
negotiation, execution or interpretation of this Agreement (including, without
limitation, the satisfaction or attempted satisfaction of any condition set
forth in Article III (Conditions To Loans And Letters Of Credit)), any Loan
Document or any proposal letter or commitment letter issued in connection
therewith, or the making of the Loans hereunder, (iii) the creation,
perfection or protection of the Liens under any Loan Document (including any
reasonable fees, disbursements and expenses for local counsel in various
jurisdictions), (iv) the ongoing administration of this Agreement and the
Loans, including consultation with attorneys in connection therewith and with
respect to the Administrative Agent's rights and responsibilities hereunder
and under the other Loan Documents, (v) the protection, collection or
enforcement of any Obligation or the enforcement of any Loan Document, (vi)
the commencement, defense or intervention in any court proceeding relating in
any way to the Obligations, any Loan Party, any of the Borrower's
Subsidiaries, this Agreement or any other Loan Document, (vii) the response
to, and preparation for, any subpoena or request for document production with
which the Administrative Agent is served or deposition or other proceeding in
which the Administrative Agent is called to testify, in each case, relating in
any way to the Obligations, any Loan Party, any of the Borrower's
Subsidiaries, this Agreement or any other Loan Document or (viii) any
amendment, consent, waiver, assignment, restatement, or supplement to any Loan
Document or the preparation, negotiation and execution of the same.
(b) On the Term Loan Termination Date, but subject to the
prior Discharge of Revolving Credit Obligations, the Borrower agrees to pay,
or reimburse ▇▇▇▇▇▇▇ for, all of ▇▇▇▇▇▇▇'▇ reasonable and necessary
out-of-pocket expenses (including the reasonable fees, expenses and
disbursements of ▇▇▇▇▇▇▇'▇ counsel, Kasowitz, Benson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
and ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, its local counsel and its
financial advisor, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Company) incurred by ▇▇▇▇▇▇▇ in connection
with (i) the preparation, negotiation and execution of this Agreement
(including, without limitation, the satisfaction or attempted satisfaction of
any condition set forth in Article III (Conditions To Loans And Letters Of
Credit)), any other Loan Document or any commitment letter issued in
connection therewith and (ii) ▇▇▇▇▇▇▇'▇ due diligence review of the Borrower
and its Subsidiaries in connection with this Agreement and no other matter.
(c) The Borrower further agrees to pay or reimburse the
Administrative Agent and each of the Lenders and Issuers upon demand for all
out-of-pocket costs and expenses, including reasonable attorneys' fees
(including allocated costs of internal counsel and costs of settlement),
incurred by the Administrative Agent, such Lenders or such Issuers in
connection with any of the following: (i) in enforcing any Loan Document or
Obligation or any security therefor or exercising or enforcing any other right
or remedy available by reason of an Event of Default, (ii) in connection with
any refinancing or restructuring of the credit arrangements provided hereunder
in the nature of a "work-out" or in any insolvency or bankruptcy proceeding,
(iii) in commencing, defending or intervening in any litigation or in filing a
petition, complaint, answer, motion or other pleadings in any legal proceeding
relating to the Obligations, any Loan Party, any of the Borrower's
Subsidiaries and related to or arising out of the transactions contemplated
hereby or by any other Loan Document or (iv) in taking any other action in or
with respect to any suit or proceeding (bankruptcy or otherwise) described in
clause (i), (ii) or (iii) above.
SECTION 13.4. INDEMNITIES.
(a) The Borrower agrees to indemnify and hold harmless the
Administrative Agent, the Arranger, each Lender and each Issuer (including
each Person obligated on a Hedging Contract that is a Loan Document if such
Person was a Lender or Issuer at the time of it entered into such Hedging
Contract) and each of their respective Affiliates, and each of the directors,
officers, employees, agents, trustees, representatives, attorneys, consultants
and advisors of or to any of the foregoing (including those retained in
connection with the satisfaction or attempted satisfaction of any condition
set forth in Article III (Conditions To Loans And Letters Of Credit)) (each
such Person being an "Indemnitee") from and against any and all claims,
damages, liabilities, obligations, losses, penalties, actions, judgments,
suits, costs, disbursements and reasonable out-of-pocket expenses, joint or
several, of any kind or nature (including reasonable fees, disbursements and
expenses of financial and legal advisors to any such Indemnitee) that may be
imposed on, incurred by or asserted against any such Indemnitee in connection
with or arising out of any investigation, litigation or proceeding, whether or
not such investigation, litigation or proceeding is brought by any such
Indemnitee or any of its directors, security holders or creditors or any such
Indemnitee, director, security holder or creditor is a party thereto, whether
direct, indirect, or consequential and whether based on any federal, state or
local law or other statutory regulation, securities or commercial law or
regulation, or under common law or in equity, or on contract, tort or
otherwise, in any manner relating to or arising out of this Agreement, any
other Loan Document, any Obligation, any Letter of Credit, or any act, event
or transaction related or attendant to any thereof, or the use or intended use
of the proceeds of the Loans or Letters of Credit or in connection with any
investigation of any potential matter covered hereby (collectively, the
"Indemnified Matters"); provided, however, that the Borrower shall not have
any liability under this Section 13.4 (x) to an Indemnitee with respect to any
Indemnified Matter that has resulted primarily from the gross negligence or
willful misconduct of that Indemnitee, as determined by a court of competent
jurisdiction in a final non-appealable judgment or order or (y) to ▇▇▇▇▇▇▇ in
connection with any potential or actual Plan of Reorganization or ▇▇▇▇▇▇▇'▇
claims against (or participation interests in claims against), or interests
in, the Borrower other than with respect to the Obligations and its rights
under Section 2.19 and Schedule 2.19. Without limiting the foregoing,
"Indemnified Matters" include (i) all Environmental Liabilities and Costs
arising from or connected with the past, present or future operations of the
Borrower or any of its Subsidiaries involving any property subject to this
Agreement, the Orders or a Collateral Document, or damage to real or personal
property or natural resources or harm or injury alleged to have resulted from
any Release of Contaminants on, upon or into such property or any contiguous
real estate, (ii) any costs or liabilities incurred in connection with any
Remedial Action concerning the Borrower or any of its Subsidiaries, (iii) any
costs or liabilities incurred in connection with any Environmental Lien and
(iv) any costs or liabilities incurred in connection with any other matter
under any Environmental Law, including the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (49 U.S.C. ss. 9601 et seq.)
and applicable state property transfer laws, whether, with respect to any such
matter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a
mortgagee in possession, the successor in interest to the Borrower or any of
its Subsidiaries, or the owner, lessee or operator of any property of the
Borrower or any of its Subsidiaries by virtue of foreclosure, except, with
respect to those matters referred to in clauses (i), (ii), (iii) and (iv)
above, to the extent (A) incurred following foreclosure by the Administrative
Agent, any Lender or any Issuer, or the Administrative Agent, any Lender or
any Issuer having become the successor in interest to the Borrower or any of
its Subsidiaries and (B) attributable solely to acts of the Administrative
Agent, such Lender or such Issuer or any agent on behalf of the Administrative
Agent, such Lender or such Issuer.
(b) The Borrower shall indemnify the Administrative Agent,
the Lenders and each Issuer for, and hold the Administrative Agent, the
Lenders and each Issuer harmless from and against, any and all claims for
brokerage commissions, fees and other compensation made against the
Administrative Agent, the Lenders and the Issuers for any broker, finder or
consultant with respect to any agreement, arrangement or understanding made by
or on behalf of any Loan Party or any of its Subsidiaries in connection with
the transactions contemplated by this Agreement.
(c) The Borrower, at the request of any Indemnitee, shall
have the obligation to defend against any investigation, litigation or
proceeding or requested Remedial Action, in each case contemplated in clause
(a) above, and the Borrower, in any event, may participate in the defense
thereof with legal counsel of the Borrower's choice. In the event that such
Indemnitee requests the Borrower to defend against such investigation,
litigation or proceeding or requested Remedial Action, the Borrower shall
promptly do so and such Indemnitee shall have the right to have legal counsel
of its choice participate in such defense. No action taken by legal counsel
chosen by such Indemnitee in defending against any such investigation,
litigation or proceeding or requested Remedial Action, shall vitiate or in any
way impair the Borrower's obligation and duty hereunder to indemnify and hold
harmless such Indemnitee.
(d) The Borrower agrees that any indemnification or other
protection provided to any Indemnitee pursuant to this Agreement (including
pursuant to this Section 13.4) or any other Loan Document shall (i) survive
payment in full of the Obligations and (ii) inure to the benefit of any Person
that was at any time an Indemnitee under this Agreement or any other Loan
Document.
SECTION 13.5. LIMITATION OF LIABILITY.
(a) The Borrower agrees that no Indemnitee shall have any
liability (whether in contract, tort or otherwise) to any Loan Party or any of
their respective Subsidiaries or any of their respective equity holders or
creditors for or in connection with the transactions contemplated hereby and
in the other Loan Documents, except to the extent such liability is determined
in a final non-appealable judgment by a court of competent jurisdiction to
have resulted primarily from such Indemnitee's gross negligence or willful
misconduct. In no event, however, shall any Indemnitee be liable on any theory
of liability for any special, indirect, consequential or punitive damages
(including, without limitation, any loss of profits, business or anticipated
savings). Each of the Borrower and the Subsidiary Guarantors hereby waives,
releases and agrees (each for itself and on behalf of its Subsidiaries) not to
▇▇▇ upon any such claim for any special, indirect, consequential or punitive
damages, whether or not accrued and whether or not known or suspected to exist
in its favor.
(b) IN NO EVENT SHALL ANY AGENT AFFILIATE HAVE ANY LIABILITY
TO ANY LOAN PARTY, LENDER, ISSUER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND,
INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
LOSSES OR EXPENSES (WHETHER IN TORT OR CONTRACT OR OTHERWISE) ARISING OUT OF
ANY LOAN PARTY OR ANY AGENT AFFILIATE'S TRANSMISSION OF APPROVED ELECTRONIC
COMMUNICATIONS THROUGH THE INTERNET OR ANY USE OF THE APPROVED ELECTRONIC
PLATFORM, EXCEPT TO THE EXTENT SUCH LIABILITY OF ANY AGENT AFFILIATE IS FOUND
IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO
HAVE RESULTED PRIMARILY FORM SUCH AGENT AFFILIATE'S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
SECTION 13.6. RIGHT OF SET-OFF. Upon the occurrence and
during the continuance of any Event of Default, subject to any requirement of
notice provided in the Orders, each Lender and each Affiliate of a Lender is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
Indebtedness at any time owing by such Lender or its Affiliates to or for the
credit or the account of each Loan Party against any and all of the Secured
Obligations now or hereafter existing whether or not such Lender shall have
made any demand under this Agreement or any other Loan Document and even
though such Secured Obligations may be unmatured. Each Lender agrees promptly
to notify the applicable Loan Party after any such set-off and application
made by such Lender or its Affiliates; provided, however, that the failure to
give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section 13.6 are in addition
to the other rights and remedies (including other rights of set-off) that such
Lender may have.
SECTION 13.7. SHARING OF PAYMENTS, ETC.
(a) Subject to clause (d) below, if any Lender (directly or
through an Affiliate thereof) obtains any payment (whether voluntary,
involuntary, through the exercise of any right of set-off (including pursuant
to Section 13.6 (Right of Set-off) or otherwise) of the Loans owing to it, any
interest thereon, fees in respect thereof or amounts due pursuant to Section
13.3 (Costs and Expenses) or 13.4 (Indemnities) (other than payments pursuant
to Sections 2.14 (Special Provisions Governing Eurodollar Rate Loans), 2.15
(Capital Adequacy) or 2.16 (Taxes)) or otherwise receives any Collateral or
any Proceeds of Collateral (other than payments pursuant to Sections 2.14
(Special Provisions Governing Eurodollar Rate Loans), 2.15 (Capital Adequacy)
or 2.16 (Taxes)) (in each case, whether voluntary, involuntary, through the
exercise of any right of set-off or otherwise (including pursuant to Section
13.6 (Right of Set-off)) in excess of its Ratable Portion of all payments of
such Obligations obtained by all the Revolving Credit Lenders or the Term Loan
Lenders, as applicable, such Lender (a "Purchasing Lender") shall forthwith
purchase from the other Lenders (each, a "Selling Lender") such participations
in their Loans or other Obligations as shall be necessary to cause such
Purchasing Lender to share the excess payment ratably with each of them.
(b) Subject to clause (d) below, if all or any portion of
any payment received by a Purchasing Lender is thereafter recovered from such
Purchasing Lender, such purchase from each Selling Lender shall be rescinded
and such Selling Lender shall repay to the Purchasing Lender the purchase
price to the extent of such recovery together with an amount equal to such
Selling Lender's ratable share (according to the proportion of (i) the amount
of such Selling Lender's required repayment in relation to (ii) the total
amount so recovered from the Purchasing Lender) of any interest or other
amount paid or payable by the Purchasing Lender in respect of the total amount
so recovered.
(c) Subject to clause (d) below, the Borrower agrees that
any Purchasing Lender so purchasing a participation from a Selling Lender
pursuant to this Section 13.7 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
(d) Until the Discharge of Revolving Credit Obligations
shall have occurred, (i) any payment received by any party hereto at any time
in contravention of this Agreement and (ii) any Collateral or proceeds thereof
or any payment received by any Secured Party from proceeds of any Collateral
shall be segregated and held in trust and forthwith paid over to the
Administrative Agent for application in accordance with Section 2.13(g) in the
same form as received, with any necessary endorsements or as a court of
competent jurisdiction may otherwise direct. The Administrative Agent is
hereby authorized to make any such endorsements as agent for any such Secured
Party. This authorization is coupled with an interest and is irrevocable.
SECTION 13.8. NOTICES, ETC.
(a) All notices, demands, requests, consents and other
communications provided for in this Agreement shall be given in writing, or by
any telecommunication device capable of creating a written record (including
electronic mail), and addressed to the party to be notified as follows:
(i) if to the Borrower:
▇▇▇▇▇▇▇▇'▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇, Chief Financial Officer
▇▇▇▇▇▇ ▇▇▇▇▇, General Counsel
Telecopy no: ▇▇▇ ▇▇▇ ▇▇▇▇
Electronic Mail Address: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail Address: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
(ii) if to any Lender, at its Domestic Lending
Office specified opposite its name on Schedule II or on the signature
page of any applicable Assignment and Acceptance;
(iii) if to any Issuer, at the address set forth
opposite its name on Schedule II; and
(iv) if to the Administrative Agent or the Swing
Loan Lender:
Citicorp USA, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy no: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail Address: ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
with a copy to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telecopy no: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail Address: ▇▇▇▇▇▇.▇▇▇▇@▇▇▇▇.▇▇▇
or at such other address as shall be notified in writing (x) in the case of
the Borrower, the Administrative Agent and the Swing Loan Lender, to the other
parties and (y) in the case of all other parties, to the Borrower and the
Administrative Agent.
(b) Effectiveness of Notices. All notices, demands,
requests, consents and other communications described in clause (a) above
shall be effective (i) if delivered by hand, including any overnight courier
service, upon personal delivery, (ii) if delivered by mail, when deposited in
the mails, (iii) if delivered by posting to an Approved Electronic Platform,
an Internet website or a similar telecommunication device requiring that a
user have prior access to such Approved Electronic Platform, website or other
device, when such notice, demand, request, consent and other communication
shall have been made generally available on such Approved Electronic Platform,
Internet website or similar device to the class of Person being notified
(regardless of whether any such Person must accomplish, and whether or not any
such Person shall have accomplished, any action prior to obtaining access to
such items, including registration, disclosure of contact information,
compliance with a standard user agreement or undertaking a duty of
confidentiality) and (iv) if delivered by electronic mail or any other
telecommunications device, when transmitted to an electronic mail address (or
by another means of electronic delivery) as provided in clause (a) above;
provided, however, that notices and communications to the Administrative Agent
pursuant to Article II (The Facilities) or XII (The Administrative Agent)
shall not be effective until received by the Administrative Agent.
(c) Use of Electronic Platform. Notwithstanding clauses (a)
and (b) above (unless the Administrative Agent requests that the provisions of
clause (a) and (b) above be followed) and any other provision in this
Agreement or any other Loan Document providing for the delivery of, any
Approved Electronic Communication by any other means, the Loan Parties shall
deliver all Approved Electronic Communications to the Administrative Agent by
properly transmitting such Approved Electronic Communications electronically
(in a format acceptable to the Administrative Agent) to
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ or such other electronic mail address (or
similar means of electronic delivery) as the Administrative Agent may notify
the Borrower. Nothing in this clause (c) shall prejudice the right of the
Administrative Agent or any Lender or Issuer to deliver any Approved
Electronic Communication to any Loan Party in any manner authorized in this
Agreement.
SECTION 13.9. NO WAIVER; REMEDIES. No failure on the part of
any Lender, Issuer or the Administrative Agent to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 13.10. BINDING EFFECT; AMENDMENT AND RESTATEMENT.
(a) Subject to Section 3.1, this Agreement shall become
effective when it shall have been executed by the Borrower, each Subsidiary
Guarantor and the Administrative Agent and when the Administrative Agent shall
have been notified by each Lender and Issuer that such Lender or Issuer has
executed it and thereafter shall be binding upon and inure to the benefit of
the Borrower, each Subsidiary Guarantor, the Administrative Agent and each
Lender and Issuer and, in each case, their respective successors and assigns;
provided, however, that the Borrower and each Subsidiary Guarantor shall not
have the right to assign their rights hereunder or any interest herein without
the prior written consent of the Lenders.
(b) On the Effective Date, the Original DIP Credit Agreement
shall be amended and restated in its entirety by this Agreement, and the
Original DIP Credit Agreement shall thereafter be of no further force and
effect, except to evidence (i) the incurrence by the Borrowers of the
"Obligations" under and as defined in the Original DIP Credit Agreement
(whether or not such "Obligations" are contingent as of the Effective Date),
(ii) the Guaranty under and as defined in the Original DIP Credit Agreement
and the grant by the Loan Parties of the security interests and liens in favor
of the Administrative Agent, (iii) the representations and warranties made by
the Borrowers prior to the Effective Date and (iv) any action or omission
performed or required to be performed pursuant to such Original DIP Credit
Agreement prior to the Effective Date (including any failure, prior to the
Effective Date, to comply with the covenants contained in such Original DIP
Credit Agreement). The amendments and restatements set forth herein shall not
cure any breach thereof or any "Default" or "Event of Default" under and as
defined in the Original DIP Credit Agreement existing prior to the Effective
Date. This Agreement is not in any way intended to constitute a novation of
the security interests, obligations and liabilities existing under the
Original DIP Credit Agreement or evidence payment of all or any portion of
such obligations and liabilities.
(c) The terms and conditions of this Agreement and the
Administrative Agent's, the Lenders' and the Issuers' rights and remedies
under this Agreement and the other Loan Documents shall apply to all of the
Obligations incurred under the Original DIP Credit Agreement and the Notes
issued thereunder.
(d) On and after the Effective Date, (i) all references to
the Original DIP Credit Agreement (or to any amendment or any amendment and
restatement thereof) in the Loan Documents (other than this Agreement) shall
be deemed to refer to the Original DIP Credit Agreement, as amended and
restated hereby, (ii) all references to any section (or subsection) of the
Original DIP Credit Agreement or in any Loan Document (but not herein) shall
be amended to become, mutatis mutandis, references to the corresponding
provisions of this Agreement and (iii) except as the context otherwise
provides, on or after the Effective Date, all references to this Agreement
herein (including for purposes of indemnification and reimbursement of fees)
shall be deemed to be reference to the Original DIP Credit Agreement, as
amended and restated hereby.
(e) This amendment and restatement is limited as written and
is not a consent to any other amendment, restatement or waiver, whether or not
similar and, except as expressly provided herein or in any other Loan
Document, all terms and conditions of the Loan Documents remain in full force
and effect unless otherwise specifically amended hereby or any other Loan
Document.
(f) Each of the Loan Parties agrees and acknowledges that
its respective guaranty and grant of security interests contained in the
Original DIP Credit Agreement shall remain in full force and effect and shall
extend to all the Obligations after giving effect to this Agreement.
SECTION 13.11. GOVERNING LAW. This Agreement and the rights
and obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York and, to the
extent applicable, the Bankruptcy Code.
SECTION 13.12. SUBMISSION TO JURISDICTION; SERVICE OF
PROCESS.
(a) Any legal action or proceeding with respect to this
Agreement or any other Loan Document may be brought in the courts of the State
of New York located in the City of New York or of the United States of America
for the Southern District of New York, and, by execution and delivery of this
Agreement, the Borrower and each Subsidiary Guarantor hereby accepts for
itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. The parties hereto hereby irrevocably
waive any objection, including any objection to the laying of venue or based
on the grounds of forum non conveniens, that any of them may now or hereafter
have to the bringing of any such action or proceeding in such respective
jurisdictions.
(b) The Borrower and each Subsidiary Guarantor hereby
irrevocably consents to the service of any and all legal process, summons,
notices and documents in any suit, action or proceeding brought in the United
States of America arising out of or in connection with this Agreement or any
other Loan Document by the mailing (by registered or certified mail, postage
prepaid) or delivering of a copy of such process to the Borrower or the
Subsidiary Guarantor, as the case may be, at its address specified in Section
13.8. The Borrower and each Subsidiary Guarantor agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law.
(c) Nothing contained in this Section 13.12 shall affect the
right of the Administrative Agent or any Lender to serve process in any other
manner permitted by law or commence legal proceedings or otherwise proceed
against the Borrower or any other Loan Party in any other jurisdiction.
(d) If for the purposes of obtaining judgment in any court
it is necessary to convert a sum due hereunder in Dollars into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase Dollars with such other currency at the spot rate of exchange quoted
by the Administrative Agent at 11:00 a.m. (New York time) on the Business Day
preceding that on which final judgment is given, for the purchase of Dollars,
for delivery two Business Days thereafter.
SECTION 13.13. WAIVER OF JURY TRIAL. EACH OF THE
ADMINISTRATIVE AGENT, THE LENDERS, THE ISSUERS, THE BORROWER AND THE
SUBSIDIARY GUARANTORS IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
SECTION 13.14. MARSHALING; PAYMENTS SET ASIDE. None of the
Administrative Agent, any Lender or any Issuer shall be under any obligation
to marshal any assets in favor of the Borrower, any Subsidiary Guarantor or
any other party or against or in payment of any or all of the Obligations. To
the extent that the Borrower makes a payment or payments to the Administrative
Agent, the Lenders or the Issuers or any such Person receives payment from the
proceeds of the Collateral or exercise their rights of setoff, and such
payment or payments or the proceeds of such enforcement or setoff or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee, receiver or any
other party, then to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied, and all Liens, right and remedies
therefor, shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not occurred.
SECTION 13.15. SECTION TITLES. The section titles contained
in this Agreement are and shall be without substantive meaning or content of
any kind whatsoever and are not a part of the agreement between the parties
hereto, except when used to reference a section. Any reference to the number
of a clause, sub-clause or subsection hereof immediately followed by a
reference in parenthesis to the title of the Section containing such clause,
sub-clause or subsection is a reference to such clause, sub-clause or
subsection and not to the entire Section; provided, however, that, in case of
direct conflict between the reference to the title and the reference to the
number of such Section, the reference to the title shall govern absent
manifest error. If any reference to the number of a Section (but not to any
clause, sub-clause or subsection thereof) is followed immediately by a
reference in parenthesis to the title of a Section, the title reference shall
govern in case of direct conflict absent manifest error.
SECTION 13.16. EXECUTION IN COUNTERPARTS. This Agreement may
be executed in any number of counterparts and by different parties in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Signature pages may be detached from multiple separate counterparts and
attached to a single counterpart so that all signature pages are attached to
the same document. Delivery of an executed signature page of this Agreement by
facsimile transmission or by posting on the Approved Electronic Platform shall
be as effective as delivery of a manually executed counterpart hereof. A set
of the copies of this Agreement signed by all parties shall be lodged with the
Borrower and the Administrative Agent.
SECTION 13.17. ENTIRE AGREEMENT. This Agreement, together
with all of the other Loan Documents and all certificates and documents
delivered hereunder or thereunder, embodies the entire agreement of the
parties and supersedes all prior agreements and understandings relating to the
subject matter hereof. In the event of any conflict between the terms of this
Agreement and any other Loan Document, the terms of this Agreement shall
govern.
SECTION 13.18. CONFIDENTIALITY. Each Lender and the
Administrative Agent agree to use all reasonable efforts to keep information
obtained by it pursuant hereto and the other Loan Documents confidential in
accordance with such Lender's or the Administrative Agent's, as the case may
be, customary practices and agrees that it shall only use such information in
connection with the transactions contemplated by this Agreement and not
disclose any such information other than (a) to such Lender's or the
Administrative Agent's, as the case may be, employees, representatives and
agents that are or are expected to be involved in the evaluation of such
information in connection with the transactions contemplated by this Agreement
and are advised of the confidential nature of such information, (b) to the
extent such information presently is or hereafter becomes available to such
Lender or the Administrative Agent, as the case may be, on a non-confidential
basis from a source other than the Borrower or any other Loan Party, (c) to
the extent disclosure is required by law, regulation or judicial order or
requested or required by bank regulators or auditors or (d) to current or
prospective assignees, participants and Special Purpose Vehicle grantees of
any option described in Section 13.2(f) (Assignments and Participations),
contractual counterparties in any Hedging Contract permitted hereunder and to
their respective legal or financial advisors, in each case and to the extent
such assignees, participants, grantees or counterparties agree to be bound by,
and to cause their advisors to comply with, the provisions of this Section
13.18. Notwithstanding any other provision in this Agreement, the Borrower and
the Administrative Agent hereby agree that each of the Borrower, the
Subsidiary Guarantors, the Lenders, the Administrative Agent and the Arranger
(and each of their respective employees, representatives and agents and each
of the officers, directors, employees, accountants, attorneys and other
advisors of any of them) may disclose to any and all persons, without
limitation of any kind, the U.S. tax treatment and U.S. tax structure of the
Facilities and the transactions contemplated hereby and all materials of any
kind (including opinions and other tax analyses) that are provided to each of
them relating to such U.S. tax treatment and U.S. tax structure.
[SIGNATURE PAGES FOLLOW]
[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]
[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
▇▇▇▇▇▇▇▇'▇ INC.,
as Borrower
By: /s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: C. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary
FI STORES LIMITED PARTNERSHIP,
as a Subsidiary Guarantor
By: /s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: C. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary
▇▇▇▇▇▇▇▇'▇ MANAGEMENT CORP.,
as a Subsidiary Guarantor
By: /s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: C. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary
▇▇▇▇▇▇▇▇'▇ FLORIDA PARTNERSHIP,
as a Subsidiary Guarantor
By: /s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: C. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary
▇▇▇▇▇▇▇▇'▇ HOLDING CORP.,
as a Subsidiary Guarantor
By: /s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: C. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary
FCJV HOLDING CORP.,
as a Subsidiary Guarantor
By: /s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: C. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary
▇▇▇▇▇▇▇▇'▇ INVESTMENTS LLC,
as a Subsidiary Guarantor
By: /s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: C. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary
▇▇▇▇▇▇▇▇'▇ BENEFICIARY INC.,
as a Subsidiary Guarantor
By: /s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: C. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary
CITICORP USA, INC.,
as Administrative Agent, Term
Loan Lender, Revolving Credit
Lender and Swing Loan Lender
By: /s/ Sebastien Delasnerie
---------------------------
Name: SEBASTIEN DELASNERIE
Title: Vice President
CITIBANK, N.A.,
as Issuer
By: /s/ Sebastien Delasnerie
---------------------------
Name: SEBASTIEN DELASNERIE
Title: Vice President
TABLE OF CONTENTS
Page
Article I Definitions, Interpretation And Accounting Terms......................................2
Section 1.1. Defined Terms............................................................2
Section 1.2. Computation of Time Periods.............................................36
Section 1.3. Accounting Terms and Principles.........................................36
Section 1.4. Certain Terms...........................................................36
Article II The Facilities.......................................................................37
Section 2.1. The Commitments.........................................................37
Section 2.2. Borrowing Procedures....................................................38
Section 2.3. Swing Loans.............................................................39
Section 2.4. Letters of Credit.......................................................41
Section 2.5. Reduction and Termination of the Commitments............................45
Section 2.6. Repayment of Loans......................................................46
Section 2.7. Evidence of Debt........................................................46
Section 2.8. Optional Prepayments....................................................46
Section 2.9. Mandatory Prepayments...................................................46
Section 2.10. Interest................................................................48
Section 2.11. Conversion/Continuation Option..........................................49
Section 2.12. Fees....................................................................50
Section 2.13. Payments and Computations...............................................51
Section 2.14. Special Provisions Governing Eurodollar Rate Loans......................54
Section 2.15. Capital Adequacy........................................................55
Section 2.16. Taxes...................................................................56
Section 2.17. Substitution of Lenders.................................................57
Section 2.18. Change of Lending Office................................................58
Section 2.19. Conversion of Term Loans................................................58
Article III Conditions To Loans And Letters Of Credit............................................59
Section 3.1. Conditions Precedent to the Effective Date..............................59
Section 3.2. Conditions Precedent to Each Loan and Letter of Credit..................60
Section 3.3. Determination of Effective Date.........................................61
Article IV Representations and Warranties.......................................................62
Section 4.1. Corporate Existence; Compliance with Law................................62
Section 4.2. Corporate Power; Authorization; Enforceable Obligations.................62
Section 4.3. Ownership of Borrower; Subsidiaries.....................................63
Section 4.4. Financial Statements....................................................64
Section 4.5. Material Adverse Change.................................................64
Section 4.6. Litigation..............................................................64
Section 4.7. Taxes...................................................................64
Section 4.8. Full Disclosure.........................................................65
Section 4.9. Margin Regulations......................................................65
Section 4.10. No Burdensome Restrictions; No Defaults.................................65
Section 4.11. Investment Company Act; Public Utility Holding Company Act..............66
Section 4.12. Use of Proceeds.........................................................66
Section 4.13. Insurance...............................................................67
Section 4.14. Labor Matters...........................................................67
Section 4.15. ERISA...................................................................67
Section 4.16. Environmental Matters...................................................68
Section 4.17. Intellectual Property...................................................68
Section 4.18. Title; Real Property....................................................69
Section 4.19. Secured, Super Priority Obligations.....................................69
Section 4.20. Deposit Accounts; Control Accounts......................................70
Section 4.21. Title; No Other Liens...................................................70
Section 4.22. Pledged Collateral......................................................70
Section 4.23. Intellectual Property...................................................71
Article V Financial Covenants..................................................................72
Section 5.1. Minimum EBITDAR.........................................................72
Section 5.2. Capital Expenditures....................................................73
Article VI Reporting Covenants..................................................................74
Section 6.1. Financial Statements....................................................74
Section 6.2. Default Notices.........................................................76
Section 6.3. Litigation..............................................................76
Section 6.4. Asset Sales.............................................................76
Section 6.5. SEC Filings; Press Releases.............................................77
Section 6.6. Labor Relations.........................................................77
Section 6.7. Tax Returns.............................................................77
Section 6.8. Insurance...............................................................77
Section 6.9. ERISA Matters...........................................................77
Section 6.10. Environmental Matters...................................................78
Section 6.11. Borrowing Base Determination............................................79
Section 6.12. Customer Contracts......................................................79
Section 6.13. Tax Reporting...........................................................79
Section 6.14. Bankruptcy Court........................................................80
Section 6.15. Other Information.......................................................80
Article VII Affirmative Covenants................................................................80
Section 7.1. Preservation of Corporate Existence, Etc................................80
Section 7.2. Compliance with Laws, Etc...............................................80
Section 7.3. Conduct of Business.....................................................80
Section 7.4. Payment of Taxes, Etc...................................................80
Section 7.5. Maintenance of Insurance................................................80
Section 7.6. Access..................................................................81
Section 7.7. Keeping of Books........................................................81
Section 7.8. Maintenance of Properties, Etc..........................................81
Section 7.9. Application of Proceeds.................................................81
Section 7.10. Environmental...........................................................81
Section 7.11. Additional Collateral and Guaranties....................................82
Section 7.12. Control Accounts; Approved Deposit Accounts.............................83
Section 7.13. Landlord Waivers and Bailee's Letters...................................84
Section 7.14. Plan of Reorganization..................................................85
Article VIII Negative Covenants...................................................................85
Section 8.1. Indebtedness............................................................85
Section 8.2. Liens, Etc..............................................................86
Section 8.3. Investments.............................................................87
Section 8.4. Sale of Assets..........................................................88
Section 8.5. Restricted Payments.....................................................89
Section 8.6. Restriction on Fundamental Changes......................................89
Section 8.7. Change in Nature of Business............................................89
Section 8.8. Transactions with Affiliates............................................89
Section 8.9. Restrictions on Subsidiary Distributions; No New Negative Pledge........90
Section 8.10. Restrictions on Modification of Certain Documents and Optional
Prepayments.............................................................90
Section 8.11. Accounting Changes; Fiscal Year.........................................91
Section 8.12. Margin Regulations......................................................91
Section 8.13. Sale/Leasebacks.........................................................91
Section 8.14. No Speculative Transactions.............................................91
Section 8.15. Compliance with ERISA...................................................91
Section 8.16. Environmental...........................................................91
Section 8.17. Chapter 11 Claims.......................................................91
Section 8.18. The Orders..............................................................92
Section 8.19. Disputed Claims.........................................................92
Article IX Events Of Default....................................................................92
Section 9.1. Events of Default.......................................................92
Section 9.2. Remedies................................................................94
Section 9.3. Actions in Respect of Letters of Credit.................................95
Section 9.4. Rescission..............................................................95
Section 9.5. Option to Purchase......................................................96
Article X Guaranty.............................................................................96
Section 10.1. The Guaranty............................................................96
Section 10.2. Nature of Liability.....................................................97
Section 10.3. Independent Obligation..................................................97
Section 10.4. Authorization...........................................................97
Section 10.5. Reliance................................................................98
Section 10.6. Subordination...........................................................98
Section 10.7. Waiver..................................................................98
Section 10.8. Limitation on Enforcement...............................................99
Article XI Security.............................................................................99
Section 11.1. Security................................................................99
Section 11.2. Perfection of Security Interests.......................................101
Section 11.3. Rights of Lender; Limitations on Lenders' Obligations..................102
Section 11.4. Covenants of the Loan Parties with Respect to Collateral...............103
Section 11.5. Performance by Agent of the Loan Parties' Obligations..................107
Section 11.6. Limitation on Agent's Duty in Respect of Collateral....................107
Section 11.7. Remedies, Rights Upon Default..........................................108
Section 11.8. The Administrative Agent's Appointment as Attorney-in-Fact.............110
Section 11.9. Modifications..........................................................111
Article XII The Administrative Agent; The Arranger..............................................112
Section 12.1. Authorization and Action...............................................112
Section 12.2. Agent's Reliance, Etc..................................................113
Section 12.3. Posting of Approved Electronic Communications..........................113
Section 12.4. The Administrative Agent Individually..................................114
Section 12.5. Lender Credit Decision.................................................115
Section 12.6. Indemnification........................................................115
Section 12.7. Successor Agent........................................................115
Section 12.8. Concerning the Collateral and the Collateral Documents.................116
Section 12.9. Collateral Matters Relating to Related Obligations.....................117
Article XIII Miscellaneous.......................................................................118
Section 13.1. Amendments, Waivers, Etc...............................................118
Section 13.2. Assignments and Participations.........................................121
Section 13.3. Costs and Expenses.....................................................125
Section 13.4. Indemnities............................................................126
Section 13.5. Limitation of Liability................................................128
Section 13.6. Right of Set-off.......................................................128
Section 13.7. Sharing of Payments, Etc...............................................128
Section 13.8. Notices, Etc...........................................................129
Section 13.9. No Waiver; Remedies....................................................131
Section 13.10. Binding Effect; Amendment and Restatement..............................131
Section 13.11. Governing Law..........................................................132
Section 13.12. Submission to Jurisdiction; Service of Process.........................132
Section 13.13. Waiver of Jury Trial...................................................133
Section 13.14. Marshaling; Payments Set Aside.........................................133
Section 13.15. Section Titles.........................................................133
Section 13.16. Execution in Counterparts..............................................133
Section 13.17. Entire Agreement.......................................................134
Section 13.18. Confidentiality........................................................134
SCHEDULES
Schedule I - Commitments
Schedule II - Applicable Lending Offices and Addresses for Notices
Schedule 1.1 - Permitted Transactions
Schedule 2.19 - Conversion of Term Loans
Schedule 4.2 - Consents
Schedule 4.3 - Ownership of Subsidiaries
Schedule 4.6 - Litigation
Schedule 4.7 - Taxes
Schedule 4.14 - Labor Matters
Schedule 4.15 - List of Plans
Schedule 4.16 - Environmental Matters
Schedule 4.18 - Real Property
Schedule 4.20 - Deposit Accounts and Control Accounts
Schedule 4.22 - Pledged Collateral
Schedule 4.23 - Intellectual Property
Schedule 8.1 - Existing Indebtedness
Schedule 8.2 - Existing Liens
Schedule 8.3 - Existing Investments
Schedule 8.8 - Affiliate Transactions
Schedule 11.1 - Commercial Tort Claims
EXHIBITS
Exhibit A - Form of Assignment and Acceptance
Exhibit B-1 - Form of Revolving Credit Note
Exhibit B-2 Form of Term Note
Exhibit C - Form of Notice of Borrowing
Exhibit D - Form of Swing Loan Request
Exhibit E - Form of Letter of Credit Request
Exhibit F - Form of Borrowing Base Certificate
Exhibit G - Form of Notice of Conversion or Continuation
Exhibit H-1 - Form of Opinion of Counsel for the Loan Parties
Exhibit H-2 Form of Opinion of General Counsel for the Loan Parties
Exhibit I - Form of Compliance Certificate
Exhibit J - Final Order
Exhibit K - Form of Deposit Account Control Agreement
Exhibit L - Form of Securities Account Control Agreement
Exhibit M - Form of Pledge Amendment
Exhibit N - Form of Joinder Agreement
Exhibit O - Form of Availability Reserve Certificate
SCHEDULE 1.1
PERMITTED TRANSACTIONS
"Permitted Transactions" means each and any of the following (provided no
Default or Event of Default has occurred and is continuing):
(a) Leases and Contracts. The assumption or rejection by the Loan Parties of
such pre-petition leases and pre-petition contracts as the Borrower from time
to time considers to be necessary or desirable in its reasonable judgment;
(b) Store Rationalization Program/GOB Sales. Closures by the Loan Parties of
up to such number of stores as has been disclosed to the Administrative Agent
by the Borrower prior to the date hereof and the sale at arms' length terms by
the Loan Parties of assets (including, without limitation, inventory, fixtures
and equipment) in connection therewith;
(c) Slow-Moving Inventory Sales. Clearance sales, bulk sales or other
dispositions of slow-moving inventory of the Loan Parties at arms' length
terms;
(d) Vendor Lien Program. (i) The assumption by the Loan Parties of the
Borrower's pre-petition Vendor Lien Program with such changes thereto as the
Borrower deems necessary or desirable in its reasonable judgment; provided,
that (A) all Liens thereunder shall be fully subordinated to the
Administrative Agent's Liens on any Collateral subject thereto to at least the
same extent such Liens were subordinated to the obligations of and Liens
granted by the Loan Parties in respect of the Existing Credit Agreement and
(B) such program as so assumed does not require the Loan Parties to make any
payments of any prepetition claims not permitted by the following clause (ii)
or clause (iii); (ii) the payment by the Loan Parties of (A) up to $4,754,000
in respect of the standstill amount of prepetition obligations under the
prepetition Vendor Lien Program and (B) up to $19,000,000 of additional
prepetition obligations under the Vendor Lien Program pursuant to a payment
plan which shall be reasonably acceptable to the Administrative Agent and the
Borrower (which balance may in any event be paid in connection with the
consummation of a Plan of Reorganization); and (iii) the payment by the Loan
Parties to vendors in respect of prepetition amounts under the Vendor Lien
Program (to the extent not paid pursuant to clause (ii) above) of an aggregate
amount equal to the sum of (x) the amount for which the applicable vendors
shall have extended post-petition trade terms of not less than 60 days (unless
the Administrative Agent shall have approved a shorter period with respect
thereto), (y) an amount (determined pursuant to a methodology approved in
advance by the Administrative Agent) attributable to Inventory provided to the
Loan Parties on consignment by the applicable vendors; and (z) an amount equal
to the credit extended to any Loan Party by vendors in exchange for unsold
Inventory which has been returned to the applicable vendors and which credit
is to be applied by the Loan Parties against simultaneous or future purchases
of inventory from such vendors; provided, that in each case pursuant to this
clause (iii), the Available Credit (immediately after giving effect to any
proposed payment pursuant to this clause (iii)) shall be at least $10,000,000.
The foregoing shall not limit the rights of any vendor to seek payment of any
unpaid secured claims held by it under the Vendor Lien Program in connection
with the consummation of a Plan of Reorganization with respect to the Loan
Parties; and
(e) Crescent. (i) The assumption or rejection by the Loan Parties of leases
and executory contracts with Crescent Jewelers, Inc., Crescent Jewelers or any
of their respective subsidiaries (collectively, the "Crescent Parties"), with
such changes thereto as the Borrower deems necessary or advisable in its
reasonable judgment; and (ii) the Loan Parties, so long as no additional
investments are made by the Borrower or the Subsidiary Guarantors in the
Crescent Parties, may take such other actions as the Borrower deems necessary
or desirable in its reasonable judgment in respect of the Loan Parties'
contracts with, claims against, and investments in, the Crescent Parties,
including, without limitation, sales, releases, settlements or conversions to
equity, as applicable, of any of the foregoing.
SCHEDULE 2.19
CONVERSION OF TERM LOANS
I. Conversion of Term Loans
A. Defined Terms
Capitalized terms not otherwise defined herein shall have such
meanings as set forth in the Agreement. In addition, the following additional
terms shall be defined as follows:
"Fully Diluted Basis" means with respect to the amount of Equity
Equivalents to be issued, distributed or paid by the reorganized Borrower
pursuant to a Plan of Reorganization after giving effect to the assumed
exercise of rights of any party to acquire such Equity Equivalents, by means
of warrants, options, subscription rights, conversion rights attached or
attendant to any other equity or debt securities or otherwise, excepting only
customary management stock incentive arrangements not exceeding 15% of the
total Equity Equivalents on a fully diluted basis as provided above in this
definition.
"▇▇▇▇▇▇▇ Sponsored Plan" means a Plan of Reorganization of which (i)
▇▇▇▇▇▇▇ is the "plan sponsor" or "plan investor" and (ii) ▇▇▇▇▇▇▇ has approved
of all of the material terms and conditions of such Plan of Reorganization and
the related disclosure statement.
"Equity Equivalents" means (a) in the case of a Plan of
Reorganization which is a ▇▇▇▇▇▇▇ Sponsored Plan, shares of common stock of
the Borrower; and (b) in the case of a Plan of Reorganization which is not a
▇▇▇▇▇▇▇ Sponsored Plan, all cash and equity or debt securities of any kind
(including, without limitation, equity shares of any class, notes, options,
warrants, securities exchangeable into or exercisable for such equity or debt
securities, puts, calls, rights or other commitments or agreements obligating
the Borrower to issue, deliver, sell, repurchase or redeem any equity or debt
securities) distributed, issued or subscribed to any Person pursuant to such
Plan of Reorganization; provided that in no event shall Equity Equivalents be
deemed to include any of the following: (i) any distributions (other than
shares of common stock) to any creditor that is a Governmental Authority; (ii)
any distributions in respect of any post-petition claim; (iii) any
distributions of litigation proceeds or claims; (iv) any distributions made in
respect of the pre-petition Indebtedness secured by the Chief Executive Office
and incurred to finance the acquisition thereof; and (v) any distributions of
options, warrants, securities exchangeable into or exercisable for or other
rights to acquire any shares of common stock of the Borrower to the extent
issued pursuant to any management stock option or other management incentive
arrangements.
"POR Value of Equity" means the value of the Equity Equivalents
calculated by taking the midpoint of the range of total enterprise value
estimates upon which the Plan of Reorganization is premised (as disclosed in
the disclosure statement accompanying such Plan of Reorganization and approved
by the Bankruptcy Court pursuant to Section 1125 of the Bankruptcy Code) less
thirty-five million dollars ($35,000,000.00).
"Term Loan Termination Amount" means $25,000,000.00.
B. Conversion of Term Loan
On the effective date of a Plan of Reorganization and subject to the
prior Discharge of the Revolving Credit Obligations the Term Lenders shall
have the following rights respecting the conversion of the Term Loan:
(a) If the Plan of Reorganization is a ▇▇▇▇▇▇▇ Sponsored Plan, then
the Term Loan shall convert into a portion of each form of Equity Equivalents,
on a Fully Diluted Basis, such that the Term Lenders, as a result of the
conversion, shall receive a percentage of each form of Equity Equivalents
equal to the quotient of (x) the then outstanding principal amount of the Term
Loan divided by (y) ninety percent (90%) of the POR Value of Equity, provided,
however, that to the extent the Borrower has prepaid or repaid a portion of
the Term Loan pursuant to Section 2.9 of the Agreement, other then in
connection with a Core 363 Sale, the numerator shall include such repaid
amounts as the Term Lenders, at their option, contribute to the Borrower
solely for purposes of the conversion.
(b) If the Plan of Reorganization is not a ▇▇▇▇▇▇▇ Sponsored Plan,
then the Term Lenders shall have the option to:
(i) Require the repayment, in cash, upon the consummation of
such Plan of Reorganization of the then outstanding principal amount
of the Term Loan (plus accrued and unpaid interest and fees thereon)
plus the Applicable Term Loan Repayment Fee; or
(ii) Convert the Term Loan into a portion of each form of
Equity Equivalents, on a Fully Diluted Basis, such that the Term
Lenders, as a result of the conversion, shall receive a percentage of
each form of Equity Equivalents equal to the greater of:
(1) the quotient of (x) the then outstanding
principal amount of the Term Loan divided by (y) eighty
percent (80%) of the POR Value of Equity provided, however,
that to the extent the Borrower has prepaid or repaid a
portion of the Term Loan pursuant to Section 2.9 of the
Agreement, other then in connection with a Core 363 Sale,
the numerator shall include such repaid amounts as the Term
Lenders, at their option, contribute to the Borrower solely
for purposes of the conversion; and
(2) twenty-five percent (25%).
C. Further Assurances
The Borrower hereby agree that, unless otherwise consented to by the
Term Lenders in writing, the Borrower shall not file with the Bankruptcy
Court, or give its support for, a Plan of Reorganization containing terms or
conditions that contravene the express rights and obligations of the parties
set forth in this Schedule 2.19.