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
<PAGE>
"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:
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<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
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<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.
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<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.
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<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.
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<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
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<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.
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<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
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<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
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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).
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<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
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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.
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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.
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<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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(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
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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
