EXHIBIT 10.49
CREDIT AGREEMENT
Dated Effective as of: February 13, 2004
Parties:
ALBERTSON'S, INC.
("Borrower")
And:
U.S. BANK NATIONAL ASSOCIATION
("Lender")
ARTICLE I
CERTAIN DEFINITIONS
As used in this
Agreement,
the following terms shall have the following
meanings:
"Access Laws"
means the Americans With Disabilities Act of 1990; the Fair
Housing Amendments Act of 1988; all other federal, state and local laws or
ordinances related to disabled access;
and all statutes,
rules, regulations,
ordinances, orders of governmental bodies
and regulatory agencies and orders and
decrees of any court adopted, enacted or
issued with respect thereto; all as now
existing or hereafter amended or
adopted.
"Affiliate"
means, as to any
Person, any other
Person which, directly
or
indirectly, is in control of, is controlled
by, or is under common control with,
such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly,
the power to direct
or
cause the direction of the management and
policies of the other Person, whether
through the ownership of voting securities,
membership interests,
by contract,
or otherwise.
"Agreement"
means this Credit Agreement.
"Attorney
Costs" means and
includes all reasonable fees and disbursements
of any law firm or external counsel.
"Basis Points"
means the mathematical
expression of one percent expressed
in terms of 100 basis points being equal to
one percent.
"Benefit Arrangement" means at any
time an employee benefit plan within the
meaning of Section 3(3) of ERISA which is
not a Plan or
Multiemployer Plan
and
which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Borrower" means
Albertson's, Inc. a Delaware corporation.
"Borrower's
Authorized
Representative"
means any one of those persons
identified by Borrower to Lender on Exhibit F
attached hereto and made part
hereof and any other persons in writing
from time to time.
"Borrowing
Date" means any date
on which a Revolving
Advance occurs under
Article III.
"Business Day"
means a day that
commercial banks are
open for business in
Boise, Idaho.
"Change
of Control" means any person or group of persons (within the
meaning of Section 13 or 14 of the Exchange
Act) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3
promulgated
by the SEC under
said
Act) of 40% or more of the outstanding
shares of common stock
of Borrower; or,
during any period of twelve consecutive calendar months, individuals who were
directors of Borrower on the first day of
such period shall cease to constitute
a majority of the board of directors of
Borrower.
"Closing Date"
means February 13, 2004.
"Code" means the
Internal Revenue Code of 1986.
"Commitment"
means Lender's
agreement to make
loans under Section 3.1 and
the agreement to issue Letters of
Credit in its sole
discretion under
Section
4.1.
"Compliance
Certificate" means a
certificate
substantially in the form of
Exhibit E.
CREDIT AGREEMENT
Page 1
<PAGE>
"Consolidated
Interest Expense" means, as of any date of determination, for
Borrower and its Subsidiaries on a consolidated
basis, all interest, premium
payments, fees, charges and related
expenses of Borrower and its Subsidiaries in
connection with borrowed money or in
connection with the deferred purchase price
of assets, to the extent treated as interest in accordance
with GAAP,
net of
interest income, and the portion of rent expense
with respect to
capitalized
lease obligations that is treated as interest in
accordance with GAAP, and any
construction period interest paid and
capitalized; but excluding amortization of
discount and deferred debt expense as
determined in accordance with GAAP.
"Consolidated
Rental Expense" means,
as of any date of determination, for
Borrower and its Subsidiaries on a consolidated basis the aggregate rental
expense (including any contingent or percentage
rental expense and any rent
offsets, as applicable) of Borrower and its
Subsidiaries on a consolidated basis
for such period in respect of all rent
obligations
under all operating
leases
for rent or personal property minus any rental income of Borrower and its
Subsidiaries on a consolidated basis for
such period (including licensee related
income from licensees operating on the store premises of Borrower and its
Subsidiaries).
"Consolidated
Subsidiaries"
means at any date any Subsidiary or other
Person the accounts of which would be
consolidated with those of Borrower in its
consolidated financial statements as of
such date.
"Continuing
Reimbursement
Agreement for Letters of Credit" means the
agreement substantially in the form of Exhibit C attached
hereto and made part
hereof.
"Default"
means any Event of
Default or any event which with the giving of
notice or the passage of time, or both, if
not cured, would
constitute an Event
of Default.
"Default Rate"
means Lender's Prime Rate.
"EBITDAR"
means, for any period, for Borrower and its Subsidiaries on a
consolidated basis, an amount equal to (i) the sum of
(a) net earnings
before
One Time Charges for such period,
(b) all income
taxes for such
period, (c)
Consolidated Interest Expense for such
period, (d) depreciation and amortization
expense for such period, and (e) Consolidated Rental Expense for such
period,
minus (ii) cash One Time Charges for such
period.
"Environmental
Laws" means all local, state or federal laws, rules,
regulations, or ordinances pertaining to
Hazardous Substances and environmental
regulation, contamination or clean-up
including, without limitation, the federal
statutes commonly known as CERCLA and RCRA and all
other federal or state lien
or environmental clean-up statutes, all as now
existing or hereafter amended or
adopted.
"ERISA" means
the Employee Retirement Income Security Act of 1974.
"ERISA
Group" means Borrower and all members of a controlled group of
corporations and all trades or businesses
(whether or not
incorporated)
under
common control which, together with Borrower,
are treated as a
single employer
under Section 414 of the Code.
"Exchange Act"
means the Securities Exchange Act of 1934.
"Existing
Credit Facilities" means the credit facilities described in
Article II of this Agreement.
"Fixed Charge
Coverage Ratio" means, as of any date of determination, for
Borrower and its Subsidiaries on a
consolidated basis,
the ratio of (a) EBITDAR
for the period of four fiscal quarters ending on such date to (b) Total
Fixed
Charges for the period of four fiscal
quarters ending on such date.
"FRB" means the
Board of Governors of
the Federal Reserve
System and any
Governmental Authority succeeding to any of
its principal functions.
"GAAP" means
generally accepted accounting principles consistently applied.
The definition of any accounting term used in this Agreement that is not
specifically defined shall be the GAAP
definition therefor.
"Governmental
Authority" means any nation or government, any state or other
political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative
functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of
the foregoing.
"Hazardous
Substances"
means (a) any
substance or material defined or
designated as hazardous or toxic waste, hazardous or toxic material, or a
hazardous, toxic or radioactive substance
(or designated by any similar term) by
or for purposes of any applicable Environmental Law; (b) asbestos and any
substance or compound containing asbestos;
and (c) any other hazardous, toxic or
dangerous waste, substance or material,
including but not
limited to gasoline,
crude oil, fuel oil, diesel oil, and any
other related petroleum products.
CREDIT AGREEMENT
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"Indebtedness"
of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all
obligations evidenced
by notes, bonds,
debentures or similar instruments; (c) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services; (d) all
obligations with respect to capital leases
(but not obligations with respect to
operating leases); (e) all obligations of such Person
to purchase securities or
other property which arise out of or in
connection with the
sale of the same or
substantially similar securities or
property; (f) all non-contingent obligations
(and, for purposes of Article X and
definition
of Material
Indebtedness
all
contingent obligations) of such Person to
reimburse any bank or other Person in
respect of amounts paid under any Surety
Instrument;
(g) all indebtedness of
others of the type referred to in clauses (a) through (f)
secured by a Lien on
any asset of such Person, whether or not such indebtedness is assumed by such
Person; (h) all Guaranty Obligations of such Person in
respect of indebtedness
of others of the type referred to in clauses (a) through (f), and (i) all
preferred stock of such Person redeemable
at the option of the holder during the
Facility Period. Insurance reserves, tax
reserves and interest thereon, salaries
payable, taxes payable, dividends payable,
trade accounts payable arising in the
ordinary course of business, deferred investment tax credits, deferred
compensation, deferred rents payable under
non-capital leases, benefits payable,
unearned income and other similar liabilities shall not constitute
"Indebtedness."
"Indebtedness
Rating" means the
long-term unsecured senior, non-credit
enhanced debt rating of Borrower by
Standard & Poor's
Ratings Group or Moody's
Investor Service Inc. (in the case of a
split rating,
the higher
rating will
apply, unless the split results in a difference of more than one rating,
in
which case the rating one rating below the
highest rating will apply).
"Independent
Auditor" has the meaning specified in subsection 9.1(a).
"L/C Agreement"
means the Continuing Reimbursement Agreement for Letters of
Credit dated January 7, 2003.
"L/C Termination Date" means
February 11, 2005.
"Lender" means
U.S. Bank National Association.
"Lender's
Authorized
Representative" means any vice president or assistant
relationship manager in the Commercial
Banking Department of Lender.
"LIBOR Rate" means the
asking price per annum for U.S. Dollar denominated
deposits in the London, England interbank market as such price is
presented to
Lender by Dow, Jones & Company through
its Dow Jones Telerate, Inc. subsidiary
or a similar quote reporting service.
"Lien" means
with respect to any asset, any mortgage, lien, pledge, charge,
security interest or encumbrance of any
kind in respect of such asset. For the
purposes of this Agreement, Borrower or any Subsidiary
shall be deemed to
own
subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any
conditional
sale agreement, capital
lease or other title retention agreement
relating to such asset.
"Loan Documents"
means this Agreement,
the Notes, and all
other documents
and instruments attached hereto, referred to herein or heretofore,
contemporaneously herewith or hereafter executed or delivered to Lender by
any
Person in connection with the indebtedness
of Borrower to Lender hereunder.
"Loan Party"
means each party hereto other than Lender.
"Loans"
means the Revolving Loans under Article III and the Letters of
Credit under Article IV.
"Margin
Stock" means "margin
stock" as such term is
defined in Regulation
T, U or X of the FRB.
"Markus-Stiftung
Stock Agreement" means the agreement dated February
15,
1980, among Borrower, Theo Albrecht Stiftung (now known
as Markus-Stiftung) and
Theo Albrecht, as amended by the First Amendment
thereto dated as of
April 11,
1984, the Second Amendment thereto dated as
of September 25, 1989, and the Third
Amendment thereto dated as of December 5,
1994 and any successor agreement.
"Material
Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the
operations, business,
assets, liabilities
or
financial condition of Borrower and its
Consolidated
Subsidiaries
taken as a
whole; (b) a material impairment of the
ability of Borrower to perform under any
Loan Document and to avoid any Event of
Default; or (c) a material adverse
effect upon the legality, validity, binding
effect or enforceability against
Borrower of any Loan Document.
"Material
Indebtedness"
means Indebtedness (other than the Loans) of
Borrower and/or one or more of its
Subsidiaries, arising
in one or more related
or unrelated transactions, in an aggregate outstanding principal amount
exceeding $30,000,000.
CREDIT AGREEMENT
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<PAGE>
"Material Plan"
means at any time a Plan or Plans having aggregate Unfunded
Liabilities in excess of $30,000,000.
"Maximum Letter
of Credit Amount" means $42,500,000.
"Maximum
Revolving Loan Amount" means $100,000,000.
"Multiemployer
Plan" means at any
time an employee
pension benefit
plan
within the meaning of Section 4001(a)(3) of ERISA, to which any member of the
ERISA Group is then making or accruing an
obligation to make
contributions
or
has within the preceding five plan years
made contributions, including for these
purposes any Person which ceased to be a member of the
ERISA Group during such
five year period.
"Multi-Year
Credit Agreement"
means the Credit Agreement dated as of March
22, 2000, among Borrower and the other
financial institutions party thereto,
including Lender, providing for a five-year
revolving credit facility.
"Note(s)"
means the Revolving Note and the Continuing Reimbursement
Agreement for Letters of Credit.
"Notice of
Borrowing" means a notice in substantially the form of Exhibit
B.
"Obligation"
means all advances, debts, liabilities, obligations, covenants
and duties arising under any Loan
Document, owing by Borrower to any Bank,
any
Designated Bidder, the Agent or any Indemnified Person, whether direct or
indirect (including those acquired by
assignment), absolute
or contingent, due
or to become due, now existing or hereafter
arising.
"One Time Charges" means unusual material charges or credits against
earnings which Borrower separately discloses in the discussion of the
"Results
of Operations" (including but not limited to merger related charges,
restructuring charges, gains or losses from the disposition of assets and
accounting changes).
"Overnight
Borrowing"
means a short-term loan that must be repaid by
Borrower on the Business Day following the
Business Day in which it is borrowed.
"PBGC" means the
Pension Benefit Guaranty Corporation, or any Governmental
Authority succeeding to any of its
principal functions under ERISA.
"Person"
means an individual
or entity,
including without limitation a
corporation, general or limited partnership,
limited liability
company, trust,
unincorporated association, government or
government agency.
"Plan"
means at any time an
employee pension
benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the
minimum funding standards under Section 412 of the Code and either (i) is
maintained, or contributed to, by any
member of the ERISA Group for employees of
any member of the ERISA Group or (ii) has
at any time within the preceding five
years been maintained, or contributed to,
by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such
time a
member of the ERISA Group.
"Prime Rate"
means Lender's rate of interest publicly announced from time
to time as its "Prime Rate."
"Responsible
Officer" means, as to any Person, the chief executive officer,
the chief financial officer, or the treasurer or the president
of such Person,
or any other officer having substantially
the same authority and responsibility;
or, with respect to compliance with financial covenants, the chief financial
officer or the treasurer of such Person, or any other officer having
substantially the same authority and
responsibility.
"Revolving Loan Termination Date" means the earlier of
February 11, 2005,
and the date Lender demands payment in full
of the then
outstanding balance
of
the Revolving Note.
"Revolving
Note" means the promissory note referred to in Section 3.3
hereafter.
"Subsidiary"
of a Person means any
corporation or other business entity of
which more than 50% of the voting
stock, membership interests or other equity
interests (in the case of Persons other than corporations), is owned or
controlled directly or indirectly by the Person, or one or more of the
Subsidiaries of the Person, or a combination thereof. Unless the context
otherwise clearly requires, references herein to a "Subsidiary" refer to a
Subsidiary of Borrower.
"Surety
Instruments"
means all letters of
credit (including
standby and
commercial), banker's acceptances, bank
guaranties, shipside bonds, surety bonds
and similar instruments.
CREDIT AGREEMENT
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<PAGE>
"Swap Contracts"
means any agreement,
whether or not in writing, relating
to any transaction that is a rate swap, basis swap,
forward rate
transaction,
commodity swap, commodity option, equity or equity index swap or
option, bond,
note or bill option, interest rate option,
forward foreign exchange transaction,
cap, collar or floor transaction, currency swap, cross-currency rate swap,
swaption, currency option or any other, similar transaction (including any
option to enter into any of the foregoing)
or any combination of
the foregoing,
and unless the context otherwise clearly
requires, any master agreement relating
to or governing any or all of the
foregoing.
"Total
Fixed Charges" means, for any period, for Borrower and its
Subsidiaries on a consolidated basis (a)
Consolidated Interest
Expense for such
period and (b) Consolidated Rental Expense
for such period.
"Unfunded
Liability" means with respect to any Plan at any time, the
amount
(if any) by which (i) the present value of
all benefits under
such Plan exceeds
(ii) the fair market value of all Plan assets allocable to such benefits
(excluding any accrued by unpaid
contributions),
all determined as of
the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA
Group to the
PBGC or any other Person under Title IV of
ERISA.
"USBTS-Hong
Kong" means U.S. Bank Trade Services - Hong Kong.
"Wholly-Owned
Consolidated
Subsidiaries" means any Consolidated Subsidiary
all of the shares of capital stock or other
ownership interests of which (except
directors' qualifying shares) are at the time directly
or indirectly owned
by
Borrower.
ARTICLE II
EXISTING CREDIT FACILITIES
2.1 Documents.
Borrower and Lender
are parties to the following documents
which relate to credit facilities
("Existing Credit Facilities").
2.1.1 Multi-Year Credit Agreement.
2.1.2 Continuing
Reimbursement
Agreement for Letters of Credit dated
January 7,
2003.
ARTICLE III
REVOLVING LOANS
3.1 Maximum
Amount. Subject to the
terms and conditions of this Agreement,
Lender agrees to make loans to Borrower
from time to time on a revolving credit
basis (each a "Revolving Advance",
collectively,
"Revolving Loans"),
provided
that the aggregate principal amount of outstanding
Revolving Loans shall
at no
time exceed the Maximum Revolving Loan Amount.
The availability of Revolving
Advances shall terminate on the Revolving
Loan Termination Date.
3.2 Use of
Proceeds. Borrower shall use the proceeds of the Revolving
Loans
for short-term cash position management, working capital, and other lawful
purposes.
3.3 Revolving
Note. The Revolving
Loans shall be evidenced by a promissory
note executed by Borrower in the principal amount of $100,000,000.00
substantially in the form attached as Exhibit A ("Revolving Note"). The
Revolving Loans shall be subject to all
terms and conditions
of the Revolving
Note and of this Agreement.
3.4 Interest. Interest on the unpaid
principal balance of the Revolving
Note shall be due and payable at the times and at the rates set forth
in the
Revolving Note.
3.5 Principal
Payments. The principal balance of the
Revolving Note shall
be due and payable on the date indicated on the Revolving
Note or if none,
the
Revolving Loan Termination Date,
subject to the option
of Borrower as set forth
hereafter in Section 3.9.
3.6 Additional
Payments. In addition
to the payments otherwise required on
the Revolving Note, if at any time the outstanding principal balance of the
Revolving Note exceeds the Maximum
Revolving Loan Amount,
Borrower shall pay to
Lender on demand an amount equal to the
amount by which such
principal balance
exceeds the Maximum Revolving Loan
Amount.
3.7 Requests for
Revolving Advances.
Whenever Borrower wishes to request a
Revolving Advance, Borrower shall give Lender notice
thereof in accordance with
the Notice of Borrowing.
CREDIT AGREEMENT
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<PAGE>
3.8 Overnight
Borrowing.
Of the Revolving
Loans, Borrower may request a
Revolving Advance of up to $100,000,000 (so long as the amount
requested is
available to be borrowed at the time of the request) for the purpose of an
Overnight Borrowing.
3.8.1 Interest Rate for Overnight Borrowing. The applicable interest
rate for
Overnight Borrowing
shall be as set forth
in the Revolving Note.
3.8.2 Requests
for Overnight Borrowing. Borrower must request an
Overnight
Borrowing between 9 a.m. and 3 p.m., Mountain Time, on a
Business
Day, by either
telephonic or facsimile communication to Lender's Authorized
Representative,
originated
or signed by Borrower's Authorized
Representative.
3.9 Term Loan
Option. Not fewer than five (5) days and not more than thirty
(30) days prior to the Revolving
Loan Termination Date, Borrower may provide
written notice to Lender that the Revolving Loans outstanding as of the
Revolving Loan Termination Date shall be converted
into a Term Loan. If
such
notice is given, Lender agrees, on the terms and conditions
hereinafter
set
forth, to make a term loan ("Term Loan") to Borrower on the Revolving Loan
Termination Date, in a principal amount up to
but not exceeding the outstanding
Revolving Loans. Any amount of Lender's Term
Loan repaid may not be reborrowed.
Any such term loan will not exceed one
year, and the interest
rate applicable
thereto shall be a variable rate based upon the LIBOR Rate for one
week, one
month, three months, or six months, at the option of Borrower,
plus 25 Basis
Points, plus a percentage based upon
Borrower's then current Indebtedness Rating
as follows:
<TABLE>
<CAPTION>
----------------------------------
---------------- ---------------- -----------------
----------------- ------------------
Indebtedness Ratings
A / A2
A- / A3
BBB+ / Baa1
BBB / Baa2
BBB- / Baa3
----------------------------------
---------------- ---------------- -----------------
----------------- ------------------
<S>
<C>
<C>
<C>
<C>
<C>
----------------------------------
---------------- ---------------- -----------------
----------------- ------------------
Percentage
.185%
.30%
.40%
.50%
.825%
----------------------------------
---------------- ---------------- -----------------
----------------- ------------------
</TABLE>
ARTICLE IV
LETTERS OF CREDIT
4.1 Maximum
Amount of Credits.
Subject to the terms and conditions of this
Agreement, Lender in its sole discretion
and at its sole option may issue one or
more standby and/or commercial Letters of Credit for the account
of Borrower
(each a "Letter of Credit"), provided that
the L/C Outstandings shall not exceed
at any one time the Maximum Letter of
Credit Amount.
4.2 Use of
Letters of Credit.
Borrower shall use the
letters of credit to
support performance bonds, to process
import transactions,
or for other
lawful
purposes.
4.3 L/C
Agreement. Borrower
has executed or will execute contemporaneously
with this Agreement the L/C Agreement.
4.4 L/C
Applications. Whenever Borrower wishes to request the issuance of
a
Letter of Credit, Borrower shall execute and deliver to
Lender an
application
therefor in Lender's standard form, appropriately completed with all required
information (an "L/C Application"). Each Letter of Credit shall be
subject to
all terms and conditions of this Agreement, the L/C Agreement, and the
applicable L/C Application. In the event of any express
conflict between the
terms of this Agreement and of the L/C Agreement
and the L/C
Application, the
terms of this Agreement shall control.
4.5 Expiry
Date. No Letter of Credit shall be issued on or after the
L/C
Termination Date. Each Letter of Credit shall have
an expiration date no later
than 365 days after the L/C Termination Date. Drafts drawn under a Letter of
Credit may be sight drafts or time drafts; provided, however, that no draft
shall have a maturity date later than 365
days after the L/C Termination Date.
4.6 Reimbursement. Borrower hereby agrees to reimburse
Lender an amount
equal to the face amount of each draft drawn under each Letter of Credit in
accordance with the terms of such Letter of Credit and the applicable L/C
Agreement. Notwithstanding the terms of any
L/C Agreement, in the event Borrower
fails to pay Lender in accordance with the
terms of any L/C Agreement, Borrower
agrees to pay to Lender on demand
interest on all
amounts due under such Letter
of Credit at the Default Rate.
4.7 Certain
Fees. In addition to any other fees set forth herein, Borrower
agrees to pay to Lender on demand:
4.7.1 With
respect to each
Letter of Credit
and each draft drawn
thereunder,
Lender's customary
issuance fees, processing fees, negotiation
commissions and
acceptance fees, as applicable.
4.7.2 With respect to each commercial Letter of Credit issued
through
USBTS-Hong
Kong, and each draft drawn thereunder, Lender's customary
issuance fees,
negotiation
commissions and acceptance fees, as applicable,
but no
processing fee.
CREDIT AGREEMENT
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<PAGE>
4.7.3 With
respect to each Commercial Letter of Credit not issued
through
USBTS-Hong
Kong, and each draft drawn thereunder, Lender's
customary
issuance fees,
negotiation
commissions and
acceptance fees, as
applicable,
and a processing fee
of 12.5 Basis Points or $35, whichever is
more, payable at
the time of drawing by the beneficiary.
4.7.4 With respect to each standby Letter of Credit, an issuing fee
of
50 Basis Points per annum, calculated from and including the date of
issuance
(or date of renewal or
extension if any) thereof to the expiry
date thereof on
the basis of actual days divided by 360.
ARTICLE V
LOAN FEES
In addition to the Letter of Credit fees payable under Section 4.7,
Borrower shall pay to Lender the following
fees:
5.1 A
Facility Fee, payable at the end of each of calendar quarter,
regardless of usage, computed by multiplying the
Maximum Revolving Loan
Amount
by the following percentages which are
based upon Borrower's Indebtedness Rating
at the end of the applicable calendar
quarter as follows:
<TABLE>
<CAPTION>
----------------------------------
---------------- ---------------- -----------------
----------------- ------------------
Indebtedness Ratings
A / A2
A- / A3
BBB+ / Baa1
BBB / Baa2
BBB- / Baa3
----------------------------------
---------------- ---------------- -----------------
----------------- ------------------
<S>
<C>
<C>
<C>
<C>
<C>
----------------------------------
---------------- ---------------- -----------------
----------------- ------------------
Percentage
.065%
.075%
.100%
.125%
.175%
----------------------------------
---------------- ---------------- -----------------
----------------- ------------------
</TABLE>
5.2 A Closing
Fee of $100,000, payable on the Closing Date.
ARTICLE VI
ADDITIONAL TERMS APPLICABLE TO CERTAIN CREDIT FACILITIES
6.1 Representation and Warranty of Credit
Availability.
Each request by
Borrower for a Revolving Advance or Letter of Credit shall
be deemed to be its
representation and warranty that (a) such
Revolving Advance may be made or such
Letter of Credit issued without exceeding the applicable maximum amount
determined in accordance with the
provisions of this
Agreement, (b) no
Default
has occurred, or will occur as a result of
making such
Revolving Advance or
issuing such Letter of Credit, and (c) all representations and warranties set
forth in this Agreement are true, accurate and complete as of the
date of such
request (except to the extent such
representations
and warranties expressly
refer to an earlier date, in which case they shall be true and
correct as of
such earlier date).
ARTICLE VII
CONDITIONS PRECEDENT
7.1 Conditions of Initial Loans. The obligations of Lender to make its
initial Revolving Advance or issue any
Letter of Credit hereunder is subject to
the condition that Lender shall have received on
or before the Closing Date all
of the following, in form and substance
satisfactory to Lender:
(a) Credit Agre
