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Exhibit 10.1
$150,000,000
SECURED SUPER-PRIORITY DEBTOR IN POSSESSION
REVOLVING CREDIT AGREEMENT
Dated as of January 31, 2005
among
FRIEDMAN'S 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 & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153-0119
<PAGE>
SECURED SUPER-PRIORITY DEBTOR IN POSSESSION REVOLVING CREDIT
AGREEMENT, dated as of January 31, 2005, among FRIEDMAN'S 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").
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 has requested that the Lenders and the
Issuers
provide a secured super-priority revolving credit and letter of
credit
facility of up to $150,000,000 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 Lenders and the Issuers are willing to make
available to
the Borrower such post-petition loans and other extensions of
credit upon the
terms and subject to the conditions set forth herein; and
WHEREAS, each of the Subsidiary Guarantors has agreed to
guaranty the
obligations of the Borrower hereunder and each of the Borrower
and the
Subsidiary Guarantors has agreed to secure its obligations to
the Lenders and
the Issuers hereunder with, inter alia, security interests in,
and liens on,
all of its property and assets, whether real or personal,
tangible or
intangible, now existing or hereafter acquired or arising, all
as more fully
provided herein;
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.
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"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 Secured Super-Priority Debtor In
Possession
Revolving Credit Agreement.
"Applicable Lending Office" means, with respect to each
Revolving
Credit 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 (i) Revolving Loans
and
Swing Loans maintained as Base Rate Loans, prior to the
Incremental Facility
Effective Date, a rate equal to 1.25% per annum and on and after
the
Incremental Facility Effective Date, a rate equal to 1.50% per
annum and (ii)
Revolving Loans maintained as Eurodollar Rate Loans, prior to
the Incremental
Facility Effective Date, a rate equal to 2.25% per annum and on
and after the
Incremental Facility Effective Date, a rate equal to 2.50% per
annum.
"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
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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 Revolving Credit 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 and (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 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 Closing Date.
"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.
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"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.
4
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"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 borrowing consisting of Revolving Loans made
on
the same day by the Revolving Credit Lenders ratably according
to their
respective Revolving Credit Commitments.
"Borrowing Base" means, at any time, subject to any
Eligibility
Reserve then in effect, the sum of (a) the lesser of (i) up to
42.5% of the
Net Balance of the Loan Parties' Eligible Installment Contracts
and (ii) up to
85.0% of the Net Orderly Liquidation Value of the Loan Parties'
Eligible
Installment Contracts; provided, however, that, for the purposes
of
calculation of the "Borrowing Base", in no event shall the Net
Orderly
Liquidation Value of the Loan Parties' Eligible Installment
Contracts be
deemed to be greater than 40.0% of the Net Balance of such
Installment
Contracts, and (b) the lesser of (i) up to 52.5% of Eligible
Inventory, and
(ii) up to 85.0% of the Net Orderly Liquidation Value of the
Loan Parties'
Inventory; provided, however, that, for the purposes of
calculation of the
"Borrowing Base", in no event shall the Net Orderly Liquidation
Value of the
Loan Parties' Eligible Inventory be deemed to be greater than
65.0% of such
Eligible Inventory, minus any Borrowing Base Reserve in effect
as such time;
provided, however, that prior to the earlier of (A) the date of
delivery of
the appraisals referred to in Section 6.11(b)(i) and (B) the
Incremental
Facility Effective Date, the Net Orderly Liquidation Value of
Installment
Contracts and Inventory shall be determined by the Borrower
based upon the
most recent information available to it, which information shall
be in form
and substance satisfactory to the Administrative Agent.
"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 reflecting
amounts
required to pay any expenses related to third party financing of
liquidation
sales as determined by a third party appraiser satisfactory to
the
Administrative Agent to the extent not reflected in the
calculation of the Net
Orderly Liquidation Value of the relevant Collateral, (b) 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
and (c) a
reserve for the Loan Parties' gift certificate and layaway
programs.
"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.
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"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
Facility 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
at Citibank, designated as "CUSA F/A/O FRIEDMAN'S INC.
CONCENTRATION A/C",
which account shall be under the sole dominion and control of
the
Administrative Agent.
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"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
Moody's, (c) commercial paper of an issuer rated at least "A-1"
by S&P or
"P-1" by Moody's 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 Moody's; 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 date hereof
(regardless of whether
these or similar services were provided prior to the date hereof
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 Philip Ean Cohen 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
171 Crossroads Parkway, Savannah, Georgia.
"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.
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"Closing Date" means the first date on which any Loan is made or
any
Letter of Credit is Issued.
"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.
"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).
"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.
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"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.
"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:
9
<PAGE>
(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.
"Document" has the meaning given to such term in the UCC.
10
<PAGE>
"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 Revolving
Credit
Lender, the office of such Revolving Credit 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 Revolving Credit Lender or such other office of such
Revolving Credit
Lender as such Revolving Credit 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
11
<PAGE>
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" means the date upon which a plan of
reorganization
in any of the Cases becomes effective.
"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
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
which the Administrative Agent, in its sole discretion exercised
reasonably
and in accordance with customary business practices for its
comparable asset
based transactions, determines are eligible, but excluding,
without limiting
the Administrative Agent's discretionary rights:
(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 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;
12
<PAGE>
(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
bill-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;
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<PAGE>
(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) the portion of any sales tax included in any Installment
Contract;
(s) 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; and
(t) any Installment Contract which fails to meet such other
specifications and requirements as may from time to time be
established
by the Administrarive 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; 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, obsolete, 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;
14
<PAGE>
(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; and
(l) 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. Ann. 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
15
<PAGE>
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 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.
"Equity Cushion" has the meaning specified in the Orders.
"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 Jones 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 Jones
Markets Telerate Page 3750 (or otherwise on the Dow Jones
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
16
<PAGE>
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
Revolving
Credit Lender, the office of such Revolving Credit 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 Revolving Credit Lender (or, if no such
office is
specified, its Domestic Lending Office) or such other office of
such Revolving
Credit Lender as such Revolving Credit 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.
"Facility" means the Revolving Credit Commitments and the
provisions
herein related to the Revolving Loans, Swing Loans and Letters
of Credit.
"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.
17
<PAGE>
"Federal Reserve Board" means the Board of Governors of the
United
States Federal Reserve System, or any successor thereto.
"Fee Letter" shall mean 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 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 Lenders.
"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.
"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.
"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.
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<PAGE>
"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.
"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.
"Incremental Facility" means that portion of the Facility
made
available to the Borrower from and after the Incremental
Facility Effective
Date.
"Incremental Facility Effective Date" means the date on which
the
conditions precedent set forth in Section 3.2 shall have been
satisfied.
"Incremental Projections" means those financial projections
covering
the 2 year period from the Closing Date to January 2007
inclusive, to be
delivered to the Lenders by the Borrower pursuant to Section
3.2(b)(i).
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<PAGE>
"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).
"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 sue 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
20
<PAGE>
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 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 therof;
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 Facility) 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
5
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 Facility" means that portion of the Facility made
available
to the Borrower prior to the Incremental Facility Effective
Date, as approved
by the Interim Order and, after its entry, the Final Order.
"Interim Facility Commitment Amount" means $40,000,000.
"Interim Order" means that certain order issued by the
Bankruptcy
Court in substantially the form of Exhibit J and otherwise in
form and
substance satisfactory to the Administrative Agent in its sole
discretion.
"Interim Projections" means those financial projections covering
the
12 month period from January 2005 through December 2005
inclusive, to be
delivered to the Lenders by the Borrower pursuant to Section
3.1(e).
"Inventory" has the meaning given to such term in the UCC.
21
<PAGE>
"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.
22
<PAGE>
"Letter of Credit" means any letter of credit Issued pursuant
to
Section 2.4 (Letters of Credit).
"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
Revolving
Credit 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.
23
<PAGE>
"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.
"Moody's" means Moody's 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 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.
"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.
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<PAGE>
"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, 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 Interim Order or the Final Order, as
applicable.
"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 $3,000,000 in the aggregate, (vii) in respect of
interest
payments at the non-default contract rate on the secured
Indebtedness incurred
25
<PAGE>
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.
"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.
"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.
26
<PAGE>
"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.
"Projections" means the Interim Projections and the
Incremental
Projections.
"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 Revolving Credit
Lender, the
percentage obtained by dividing (a) the Revolving Credit
Commitment of such
Revolving Credit Lender by (b) the aggregate Revolving Credit
Commitments of
all Revolving Credit 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 Revolving Credit Lender by the aggregate outstanding
principal balance of
the Revolving Credit Outstandings owing to all Revolving Credit
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).
27
<PAGE>
"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.
28
<PAGE>
"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, 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 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 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 Lender" means each Lender other than the Swing
Loan
Lender.
"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 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 Revolving Credit Commitments) and (c) the
date on which the
Obligations become due and payable pursuant to Section 9.2
(Remedies).
29
<PAGE>
"Revolving Loan" has the meaning specified in Section 2.1
(The
Revolving Credit Commitments).
"S&P" means Standard & Poor's Rating Services.
"Sarbanes-Oxley Act" means the United States Sarbanes-Oxley Act
of
2002.
"Scheduled Termination Date" means the earlier of (i) the
first
anniversary of the Closing Date, and (ii) the effective date of
a plan of
reorganization in the Cases; provided, however, that the date
referred to in
clause (i) shall automatically be extended to the second
anniversary of the
Closing Date upon the occurrence of the Incremental Facility
Effective Date.
"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.
30
<PAGE>
"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
90th day following the Closing Date and (b) the date upon which
the
Administrative Agent determines in its sole discretion that the
primary
syndication of the Loans and Revolving Credit Commitments has
been completed.
31
<PAGE>
"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).
"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.
32
<PAGE>
"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.
33
<PAGE>
(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 FACILITY
Section 2.1. The Revolving Credit Commitments.
--------------------------------
(a) On the terms and subject to the conditions contained in
this
Agreement, each Revolving Credit Lender severally agrees to make
loans in
Dollars (each a "Revolving Loan") to the Borrower from time to
time on any
34
<PAGE>
Business Day during the period from the date hereof 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.
(b) Notwithstanding the foregoing clause (a) or any other
provision
of this Agreement, during the period from the Closing Date to
the later of (i)
entry of the Final Order and (ii) the Incremental Facility
Effective Date, the
aggregate of all Revolving Credit Outstandings at any one time
shall not
exceed the Interim Facility Commitment Amount.
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,
(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) the Available Credit (after giving effect to the proposed
Borrowing). The
Revolving 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 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 Revolving
Credit
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 Revolving Credit 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 Revolving Credit
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 Closing
Date, of the applicable conditions set forth in Section 3.1
(Conditions
Precedent to Initial Loans and Letters of Credit), (ii) on the
Incremental
Facility Effective Date, of the applicable conditions set forth
in Section 3.2
(Conditions Precedent to the Incremental Facility Effective
Date) and (iii) at
any time (including the Closing Date and the Incremental
Facility Effective
Date), of the applicable conditions set forth in Section 3.3
(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.
35
<PAGE>
(c) Unless the Administrative Agent shall have received notice
from a
Revolving Credit Lender prior to the date of any proposed
Borrowing that such
Revolving Credit Lender will not make available to the
Administrative Agent
such Revolving Credit Lender's Ratable Portion of such Borrowing
(or any
portion thereof), the Administrative Agent may assume that such
Revolving
Credit 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 Revolving Credit Lender shall not have so made such Ratable
Portion
available to the Administrative Agent, such Revolving Credit
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 Revolving Credit
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
Revolving Credit Lender shall repay to the Administrative Agent
such
corresponding amount, such corresponding amount so repaid shall
constitute
such Revolving Credit 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
Revolving Credit
Lender of any obligation it may have hereunder to the
Borrower.
(d) The failure of any Revolving Credit 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
Revolving Credit Lender of its obligations to make such Loan or
payment on
such date but no such other Revolving Credit 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 a "Swing Loan") otherwise available to the Borrower
under the
Facility (but only as requested by the Borrower) from time to
time on any
Business Day during the period from the date hereof 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 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
36
<PAGE>
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 3.3
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
3.3 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 3.3 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
37
<PAGE>
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 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 faith deems 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
38
<PAGE>
(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 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 3.3 (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 3.3 (Conditions
Precedent to Each
39
<PAGE>
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 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 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 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, 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
40
<PAGE>
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 3.3 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 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
41
<PAGE>
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 Revolving
Credit
Commitments.
-------------------------------------------------
(a) 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.
(b) If the Incremental Facility Effective Date shall not
have
occurred on or before April 30, 2005, the aggregate Revolving
Credit
Commitments shall automatically and permanently be reduced to
the Interim
Facility Commitment Amount on April 30, 2005 (and the Revolving
Credit
Commitment of each Revolving Credit Lender shall be reduced by
its Ratable
Portion of such amount).
42
<PAGE>
Section 2.6. Repayment of Loans. The Borrower promises to repay
the
entire unpaid principal amount of the Revolving Loans and the
Swing Loans on
the Scheduled Termination Date or earlier, if otherwise required
by the terms
hereof.
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 Revolving Credit Lender requests that the
Borrower execute and
deliver a promissory note or notes payable to such Revolving
Credit Lender in
order to evidence the Indebtedness owing to such Revolving
Credit Lender by
the Borrower hereunder, the Borrower shall promptly execute and
deliver a
Revolving Credit Note or Revolving Credit Notes to such
Revolving Credit
Lender evidencing the Revolving Loans of such Revolving Credit
Lender,
substantially in the form of Exhibit B.
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.
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
43
<PAGE>
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) 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; and
then, 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. 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 (c) 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
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 Loans
outstanding and no other 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
44
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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 or such other Obligation, 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; and
(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.
(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, and (B) 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 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 Eurodollar Rate Loan; and
(iv) 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.
45
<PAGE>
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
Revolving Credit Lender in accordance with such Revolving Credit
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 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 (i) (A) prior to the Incremental
Facility
Effective Date, the Ratable Portion of the Interim Facility
Commitment Amount
of such Revolving Facility Lender, or (B) on and after the
Incremental
Facility Effective Date, the Revolving Credit Commitment of such
Revolving
Credit Lender, in either case exceeds (ii) such Revolving Credit
Lender's
Ratable Portion of the sum of (x) the aggregate outstanding
principal amount
of Revolving Loans and (y) the outstanding amount of the
aggregate Letter of
Credit Obligations (the "Unused Commitment Fee") from the date
hereof through
the Revolving Credit Termination Date at the Applicable Unused
Commitment Fee
Rate, payable in arrears (i) on the first Business Day of each
calendar
quarter, commencing on the first such Business Day following the
Closing Date
and (ii) 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 withdrawn face amount of such Letter
of
46
<PAGE>
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
withdrawn 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.
47
<PAGE>
(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 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 Revolving Credit Lender's Ratable Portion; 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 Revolving Credit 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 Interim
Order or the
Final 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
48
<PAGE>
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 Revolving 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 Lenders and the Issuers;
(iv) fourth, to pay Secured Obligations in respect of any
fees
then due to the Administrative Agent, the Lenders and the
Issuers;
(v) fifth, to pay interest then due and payable in respect
of
the Loans and Reimbursement Obligations;
(vi) sixth, to pay or prepay principal amounts on the 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 Loans, Reimbursement Obligations and
Letter
of Credit Undrawn Amounts, Cash Management Obligations and
Obligations owing with respect to Hedging Contracts; and
(vii) seventh, to the ratable payment of all other Secured
Obligations;
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), (ii), (iii), (iv), (v), (vi) and (vii) 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), (ii), (iii), (iv), (v), (vi) and (vii) above may at any
time and from
time to time be changed by the agreement of the Requisite
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
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
49
<PAGE>
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 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 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
3.3, which
conditions the 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
Revolving Credit
Lenders of making or maintaining such Loans for such Interest
Period, the
Administrative Agent shall forthwith so notify the Borrower and
the Revolving
Credit 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 Revolving Credit 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 Revolving Credit
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 Revolving Credit Lender with any guideline, request or
directive from any
central bank or other Governmental Authority (whether or not
having the force
of law), there shall have the effect of increasing the cost to
such Revolving
Credit 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 Revolving Credit Lender (with a copy of such demand to
the
Administrative Agent), pay to the Administrative Agent for the
account of such
Revolving Credit Lender additional amounts sufficient to
compensate such
Revolving Credit 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 Revolving Credit Lender, shall be
conclusive and
binding for all purposes, absent manifest error.
(d) Illegality. Notwithstanding any other provision of this
Agreement, if any Revolving Credit 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
50
<PAGE>
that it is unlawful, for any Revolving Credit 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
Revolving Credit Lender to the Borrower through the
Administrative Agent, (i)
the obligation of such Revolving Credit 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 Revolving Credit 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 Revolving Credit Lender gives notice under this Section
2.14(d) such
Revolving Credit Lender determines that it may lawfully make
Eurodollar Rate
Loans, such Revolving Credit 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 Revolving Credit
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
Revolving Credit 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
Revolving Credit
Lender to fund or maintain such Revolving Credit Lender's
Eurodollar Rate
Loans to the Borrower but excluding any loss of the Applicable
Margin on the
relevant Loans) that such Revolving Credit 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 Revolving Credit 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
Revolving
Credit 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.
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Section 2.16. Taxes.
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(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 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 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.
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<PAGE>
(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 Closing 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 Revolving Credit 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 Revolving Credit Lender, be otherwise
disadvantageous to
such Revolving Credit 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 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
53
<PAGE>
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, th
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