Exhibit 10.1
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
July 8, 2004
Among
CIRCUIT CITY STORES, INC.
as Lead Borrower for:
said CIRCUIT CITY STORES, INC.
CIRCUIT CITY STORES WEST COAST, INC.
ORBYX ELECTRONICS, LLC
and
INTERTAN CANADA LTD.
as Canadian Borrower
The LENDERS Party Hereto,
FLEET NATIONAL BANK
as Issuing Bank
FLEET RETAIL GROUP, INC.
as Administrative Agent and Collateral Agent
and
FLEET SECURITIES INC.
as Arranger
and
BANK OF AMERICA, N.A.
[acting through its Canada branch]
as Canadian Administrative Agent and Canadian Collateral Agent
and
BANK OF AMERICA, N.A
CONGRESS FINANCIAL CORPORATION (CENTRAL)
as Syndication Agents
and
GENERAL ELECTRIC CAPITAL CORPORATION
BANK ONE, NA
as Documentation Agents
and
JPMORGAN CHASE BANK
NATIONAL CITY BUSINESS CREDIT, INC.
THE CIT GROUP/BUSINESS CREDIT, INC.
XXXXX FARGO FOOTHILL, LLC
As Co-Agents
--------------------------------------------------
TABLE OF CONTENTS
Page
Article I Definitions...................................................................................2
Section 1.01. Defined Terms..........................................................................2
Section 1.02. Terms Generally.......................................................................32
Section 1.03. Accounting Terms; GAAP................................................................32
Article II Amount and Terms of Credit..................................................................33
Section 2.01. Commitment of the Lenders.............................................................33
Section 2.02. Intentionally Omitted.................................................................34
Section 2.03. Reserves; Changes to Reserves.........................................................34
Section 2.04. Making of Loans.......................................................................35
Section 2.05. Overadvances..........................................................................37
Section 2.06. Swingline Loans.......................................................................37
Section 2.07. Letters of Credit.....................................................................38
Section 2.08. Settlements Amongst Lenders...........................................................43
Section 2.09. Notes; Repayment of Loans.............................................................45
Section 2.10. Extension of Maturity Date............................................................45
Section 2.11. Interest on Loans.....................................................................47
Section 2.12. Default Interest......................................................................48
Section 2.13. Certain Fees..........................................................................48
Section 2.14. Unused Commitment Fee.................................................................48
Section 2.15. Letter of Credit Fees.................................................................49
Section 2.16. Nature of Fees........................................................................50
Section 2.17. Termination or Reduction of Commitments...............................................50
Section 2.18. Alternate Rate of Interest............................................................51
Section 2.19. Conversion and Continuation of Loans..................................................51
Section 2.20. Mandatory Prepayment; Cash Collateral; Commitment Termination.........................53
Section 2.21. Optional Prepayment of Loans; Reimbursement of Lenders................................55
Section 2.22. Maintenance of Loan Account; Statements of Account....................................57
Section 2.23. Cash Receipts.........................................................................58
Section 2.24. Application of Payments...............................................................61
Section 2.25. Increased Costs.......................................................................62
Section 2.26. Change in Legality....................................................................63
Section 2.27. Payments; Sharing of Setoff...........................................................64
Section 2.28. Taxes.................................................................................66
Section 2.29. Security Interests in Collateral......................................................68
Section 2.30. Mitigation Obligations; Replacement of Lenders........................................68
Article III Representations and Warranties.............................................................69
Section 3.01. Organization; Powers..................................................................70
Section 3.02. Authorization; Enforceability.........................................................70
Section 3.03. Governmental Approvals; No Conflicts..................................................70
Section 3.04. Financial Condition...................................................................71
(ii)
Section 3.05. Properties............................................................................71
Section 3.06. Litigation and Environmental Matters..................................................71
Section 3.07. Compliance with Laws and Agreements...................................................72
Section 3.08. Investment and Holding Company Status.................................................72
Section 3.09. Taxes.................................................................................72
Section 3.10. ERISA.................................................................................72
Section 3.11. Disclosure............................................................................72
Section 3.12. Subsidiaries..........................................................................73
Section 3.13. Insurance.............................................................................73
Section 3.14. Labor Matters.........................................................................73
Section 3.15. Security Documents....................................................................73
Section 3.16. Federal Reserve Regulations...........................................................73
Section 3.17. Solvency..............................................................................74
Section 3.18. Inventory.............................................................................74
Article IV Conditions..................................................................................74
Section 4.01. Closing Date..........................................................................74
Section 4.02. Conditions Precedent to Each Loan and Each Letter of Credit...........................77
Article V Affirmative Covenants........................................................................77
Section 5.01. Financial Statements and Other Information............................................78
Section 5.02. Notices of Material Events............................................................79
Section 5.03. Information Regarding Collateral......................................................80
Section 5.04. Existence; Conduct of Business........................................................81
Section 5.05. Payment of Obligations................................................................82
Section 5.06. Maintenance of Properties.............................................................82
Section 5.07. Insurance.............................................................................82
Section 5.08. Casualty and Condemnation.............................................................83
Section 5.09. Books and Records; Inspection and Audit Rights; Appraisals; Accountants;
Physical Inventories................................................................................83
Section 5.10. Compliance with Laws..................................................................84
Section 5.11. Use of Proceeds and Letters of Credit.................................................85
Section 5.12. Future Subsidiaries...................................................................85
Section 5.13. Further Assurances....................................................................85
Article VI Negative Covenants..........................................................................85
Section 6.01. Indebtedness and Other Obligations....................................................86
Section 6.02. Liens.................................................................................86
Section 6.03. Fundamental Changes...................................................................87
Section 6.04. Investments, Loans, Advances, Guarantees and Acquisitions.............................88
Section 6.05. Asset Sales...........................................................................89
Section 6.06. Restricted Payments; Certain Payments of Indebtedness.................................90
Section 6.07. Transactions with Affiliates..........................................................90
Section 6.08. Amendment of Material Documents.......................................................91
(iii)
Section 6.09. Fiscal Year...........................................................................91
Article VII Events of Default..........................................................................91
Section 7.01. Events of Default.....................................................................91
Section 7.02. When Continuing.......................................................................95
Section 7.03. Remedies on Default...................................................................95
Section 7.04. Application of Proceeds...............................................................95
Article VIII The Agents................................................................................96
Section 8.01. Administration by Administrative Agent................................................96
Section 8.02. The Collateral Agent..................................................................96
Section 8.03. Sharing of Excess Payments............................................................98
Section 8.04. Agreement of Required Lenders.........................................................99
Section 8.05. Liability of Agents...................................................................99
Section 8.06. Notice of Default....................................................................100
Section 8.07. Lenders' Credit Decisions............................................................101
Section 8.08. Reimbursement and Indemnification....................................................101
Section 8.09. Rights of Agents.....................................................................101
Section 8.10. Notice of Transfer...................................................................102
Section 8.11. Successor Agent......................................................................102
Section 8.12. Reports and Financial Statements.....................................................102
Section 8.13. Delinquent Lender....................................................................103
Section 8.14. Syndication Agents, Documentation Agents, and Arranger...............................103
Article IX Miscellaneous..............................................................................104
Section 9.01. Notices..............................................................................104
Section 9.02. Waivers; Amendments..................................................................104
Section 9.03. Expenses; Indemnity; Damage Waiver...................................................107
Section 9.04. Designation of Lead Borrower as Borrowers' Agent.....................................108
Section 9.05. Successors and Assigns...............................................................110
Section 9.06. Survival.............................................................................112
Section 9.07. Counterparts; Integration; Effectiveness.............................................113
Section 9.08. Severability.........................................................................113
Section 9.09. Right of Setoff......................................................................113
Section 9.10. Governing Law; Jurisdiction; Consent to Service of Process...........................113
Section 9.11. WAIVER OF JURY TRIAL.................................................................114
Section 9.12. Headings.............................................................................114
Section 9.13. Interest Rate Limitation.............................................................114
Section 9.14. Additional Waivers...................................................................115
Section 9.15. Confidentiality......................................................................116
Section 9.16. Limitation Of Canadian Borrower Liability............................................117
Section 9.17. Judgment Currency....................................................................117
Section 9.18. Existing Credit Agreement Amended and Restated.......................................118
Section 9.19. Language.............................................................................119
(iv)
EXHIBITS
A. Assignment and Acceptance
B-1. Domestic Borrowers Revolving Note
B-2 Domestic Borrowers Swingline Note
B-3 Canadian Borrower Revolving Note
B-4 Canadian Borrower Swingline Note
C-1 Opinion of Counsel to Domestic Borrowers
C-2 Opinion of Counsel to Canadian Borrower
D. Borrowing Base Certificate
E-1. Form of Blocked Account Agreement for Domestic Borrowers
E-2 Form of Blocked Account Agreement for Canadian Borrower
F Form of Notice of Borrowing for Canadian Borrower
These non-material exhibits have been omitted from the agreement as filed. The
Company agrees to furnish supplementally to the Commission upon request a copy
of such exhibits.
(v)
SCHEDULES
1.1 Lenders and Commitments
1.2 Facility Guarantors
2.23(a) DDAs
2.23(b) Credit Card Arrangements
2.23(c) Blocked Account Information
3.05(c)(i) Title to Properties; Real Estate Owned
3.05(c)(ii) Leased Properties
3.06 Disclosed Matters
3.10 Plans
3.12 Subsidiaries
3.13 Insurance
5.01(b)(ii) Financial Reporting Requirements
5.01(a)(iii) Certificate of Financial Officer
6.01 Indebtedness
6.02 Liens
6.04 Investments
These non-material schedules have been omitted from the agreement as filed. The
Company agrees to furnish supplementally to the Commission upon request a copy
of such schedules.
(vi)
AMENDED AND RESTATED CREDIT AGREEMENT dated as of July 8, 2004 (this
"Agreement") among
CIRCUIT CITY STORES, INC., a corporation organized under the laws of the
State of Virginia having a place of business at 0000 Xxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxx, as Lead Borrower for the Borrowers, being
said CIRCUIT CITY STORES, INC.,
CIRCUIT CITY STORES WEST COAST, INC., a corporation organized
under the laws of the State of California having a place of business
at 000 X. Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000;
ORBYX ELECTRONICS, LLC, a limited liability company organized
under the laws of the State of Delaware, having a place of business
at 000 Xxxxxx Xxxx, Xxxxxx, Xxxxxxxxxx 00000; and
INTERTAN CANADA LTD., a corporation organized under the laws
of the Province of Ontario, Canada having its head office at 000
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxx, Xxxxxx X0X 0X0; and
the LENDERS party hereto; and
FLEET NATIONAL BANK, as Issuing Bank, a national banking association having
a place of business at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000; and
FLEET RETAIL GROUP, INC. (f/k/a Fleet Retail Finance Inc.), as
Administrative Agent and Collateral Agent for the Lenders and the Issuing
Bank, a Delaware corporation, having its principal place of business at 00
Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000; and
BANK OF AMERICA, N.A. [acting through its Canada branch], as Canadian
Administrative Agent and Canadian Collateral Agent for Lenders having a
Canadian Commitment, a banking corporation carrying on business under the
Bank Act (Canada), having a place of business at 000 Xxxxx Xxxxxx Xxxx,
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0; and
BANK OF AMERICA, N.A. AND CONGRESS FINANCIAL CORPORATION (CENTRAL), as
Syndication Agents; and
GENERAL ELECTRIC CAPITAL CORPORATION and BANK ONE, NA, as Documentation
Agents; and
JPMORGAN CHASE BANK, NATIONAL CITY BUSINESS CREDIT, INC., THE CIT
GROUP/BUSINESS CREDIT, INC., and XXXXX FARGO FOOTHILL, LLC, as Co-Agents
1
in consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, certain of the Borrowers have entered into a Credit Agreement
dated as of June 27, 2003 among such Borrowers, the "Lenders" as defined
therein, Fleet Retail Group, Inc. (f/k/a Fleet Retail Finance Inc.) as
"Administrative Agent" and "Collateral Agent", Fleet National Bank as "Issuing
Bank", Bank of America, N.A. and Congress Financial Corporation (Central) as
"Syndication Agents", General Electric Capital Corporation and Bank One, NA as
"Documentation Agents", JPMorgan Chase Bank, National City Business Credit, Inc.
(f/k/a National City Commercial Finance, Inc.), The CIT Group/Business Credit,
Inc., and Xxxxx Fargo Foothill, LLC, as "Co-Agents", and Fleet Securities, Inc.,
as Arranger (as amended and in effect, the "Existing Credit Agreement"); and
WHEREAS, the Borrowers and the Lenders hereunder desire to add additional
Persons as parties to the Existing Credit Agreement as provided herein and to
establish a subfacility for the Canadian Borrower (as defined below); and
WHEREAS, the Borrowers and the Lenders hereunder desire to amend and
restate the Existing Credit Agreement as provided herein.
NOW, THEREFORE, in consideration of the mutual conditions and agreements set
forth in this Agreement, and for good and valuable consideration, the receipt of
which is hereby acknowledged, the Lenders, the Agents, and the Borrowers hereby
agree that the Existing Credit Agreement shall be amended and restated in its
entirety to read as follows:
Article I
Definitions
Section 1.01. Defined Terms.
As used in this Agreement, the following terms have the meanings specified
below:
"ACH" shall mean automated clearing house transfers.
"Account" shall mean all accounts, accounts receivable, receivables, and
rights to payment (whether or not earned by performance) for: Inventory that has
been or is to be sold, leased, licensed, assigned, or otherwise disposed of;
and/or arising out of the use of a credit or charge card or information
contained on or used with that card.
"Adjusted LIBO Rate" means, with respect to any LIBO Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
2
"Administrative Agent" means FRG, in its capacity as administrative agent
for the Lenders and the Issuing Bank hereunder.
"Affiliate" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified, and, with
respect to any Agent or Lender, includes any branches or Affiliates of branches
of such Agent or Lender.
"Agents" shall mean collectively, the Administrative Agent and the
Collateral Agent and the Canadian Agent.
"Agreement" means this Credit Agreement, as modified, amended, supplemented
or restated, and in effect from time to time.
"Applicable Law" means as to any Person: (i) all statutes, rules,
regulations, orders, or other requirements having the force of law and (ii) all
court orders and injunctions, and/or similar rulings, in each instance ((i) and
(ii)) of or by any Governmental Authority, or court, or tribunal which has
jurisdiction over such Person, or any property of such Person, or of any other
Person for whose conduct such Person would be responsible.
"Applicable Margin" means the applicable rates for Prime Rate Loans, LIBO
Loans and BA Equivalent Loans set forth below:
---------- ----------------------------- ------------- ----------------------- ------------ ------------------------
Level Consolidated EBITDA Domestic LIBO Loans Canadian BA Equivalent Loans
Borrowers Borrower
Prime Rate Prime Rate
Loans Loans
---------- ----------------------------- ------------- ----------------------- ------------ ------------------------
---------- ----------------------------- ------------- ----------------------- ------------ ------------------------
I Consolidated EBITDA greater 0% [CONFIDENTIAL]*% 0% [CONFIDENTIAL]*%
than $375,000,000
---------- ----------------------------- ------------- ----------------------- ------------ ------------------------
---------- ----------------------------- ------------- ----------------------- ------------ ------------------------
II Consolidated EBITDA less 0% [CONFIDENTIAL]*% 0% [CONFIDENTIAL]*%
than or equal to
$375,000,000 but greater
than or equal to
$200,000,000
---------- ----------------------------- ------------- ----------------------- ------------ ------------------------
---------- ----------------------------- ------------- ----------------------- ------------ ------------------------
III Consolidated EBITDA less 0% [CONFIDENTIAL]*% 0% [CONFIDENTIAL]*%
than $200,000,000
---------- ----------------------------- ------------- ----------------------- ------------ ------------------------
The Applicable Margin shall be adjusted quarterly based upon the Borrowers'
Consolidated EBITDA for the period ending on the last day of the most recent
fiscal quarter.
*Confidential treatment has been requested for the redacted portions of this
agreement pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended. The confidential, redacted portions have been filed separately with the
United States Securities and Exchange Commission.
3
Any adjustments to the Applicable Margin shall be implemented prospectively on
the fifth Business Day after delivery of the financial statements required by
Section 5.01(a)(i) or (ii) hereof and the compliance certificate required by
Section 5.01(a)(iii) hereof. Upon the failure of the Borrowers to timely deliver
the financial statements required by Section 5.01(a)(i) or (ii) hereof or the
compliance certificate required pursuant to Section 5.01(a)(iii), and until such
financial statements and compliance certificate is so delivered, the Applicable
Margin shall be established at Level III. Upon the occurrence of an Event of
Default, interest shall be determined in the manner set forth in Section 2.12.
"Appraisal Percentage" shall mean [CONFIDENTIAL]*%.
"Appraised Value" means the net cost liquidation value of the Borrowers'
Inventory as set forth in the Borrowers' stock ledger (expressed as a percentage
of the Cost of such Inventory) as determined from time to time by Xxxxxx
Xxxxxxxx or by another independent appraiser reasonably satisfactory to the
Administrative Agent, with such appraisal conducted in accordance with Section
5.09(b) hereof. Appraised Value shall be determined based upon the most recent
appraisal undertaken by Xxxxxx Xxxxxxxx or such other appraiser (regardless of
who bears the expense thereof under Section 5.09(b)).
"Arranger" means FSI.
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.05), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Availability Reserves" means such reserves as the Administrative Agent
from time to time determines in the Administrative Agent's reasonable discretion
(after consultation with the Lead Borrower (whose consent to any Availability
Reserve shall not be required)) as being appropriate to reflect the impediments
to the Agents' ability to realize upon the Collateral. Availability Reserves
shall be established and calculated in a manner and methodology consistent with
the Administrative Agent's practices as of June 27, 2003 with other similarly
situated borrowers.
"BA Equivalent Loan" shall mean any Loan in CD$ bearing interest at a rate
determined by reference to the BA Rate in accordance with the provisions of
Article II.
"BA Equivalent Loan Borrowing" shall mean any Borrowing comprised of BA
Equivalent Loans.
*Confidential treatment has been requested for the redacted portions of this
agreement pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended. The confidential, redacted portions has been file separately with the
United States Securities and Exchange Commission.
4
"BA Rate" means, for the Interest Period of each BA Equivalent Loan, the
rate of interest per annum equal to the annual rates applicable to CD$ Bankers'
Acceptances having an identical or comparable term as the Bankers' Acceptances
proposed to be issued displayed and identified as such on the display referred
to as the "CDOR Page" (or any display substituted therefor) of Xxxxxx Monitor
Money Rates Service as at approximately 10:00 A.M. on such day (or, if such day
is not a Business Day, as of 10:00 A.M. on the immediately preceding Business
Day), provided that if such rates do not appear on CDOR Page at such time on
such date, the rate for such date will be the annual discount rate (rounded
upward to the nearest whole multiple of 1/100 of 1%) as of 10:00 A.M. on such
day at which The Toronto-Dominion Bank is then offering to purchase CD$ Bankers'
Acceptances accepted by it having such specified term (or a term as closely as
possible comparable to such specified term). In the event that the Canadian
Agent is unable to obtain any such quotation as provided above, it will be
deemed that a BA Rate pursuant to a BA Equivalent Loan Borrowing cannot be
obtained.
"Bankruptcy Code" means each of (i) Title 11, U.S.C., as now or hereafter
in effect, or any successor thereto, and (ii) the Bankruptcy and Insolvency Act
(Canada), the Companies' Creditors Arrangement Act (Canada) and the Winding-up
Act (Canada), as now or hereafter in effect, or any successor thereto.
"Blocked Account Agreements" shall mean agency agreements with the
banks maintaining deposit accounts of the Borrowers where funds from one or more
DDAs are concentrated, which agreements shall be substantially in the form
attached hereto as Exhibit E-1 with respect to the Domestic Borrowers and
Exhibit E-2 with respect to the Canadian Borrower, or otherwise in form and
substance reasonably satisfactory to the Administrative Agent, and the Canadian
Agent, as applicable.
"Blocked Account Banks" shall mean the banks with whom the Borrowers have
entered into Blocked Account Agreements.
"Blocked Accounts" shall mean each deposit account of the Borrowers which
is the subject of a Blocked Account Agreement.
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrowers" means collectively, the Domestic Borrowers and the Canadian
Borrower.
"Borrowing" shall mean (a) the incurrence of Loans of a single Type, on a
single date and having, in the case of LIBO Loans and BA Equivalent Loans, a
single Interest Period, or (b) a Swingline Loan.
"Borrowing Base" means, at any time of calculation, an amount equal to
5
(a) the Receivables Advance Rate multiplied by the face amount
of Eligible Credit Card Receivables, plus
(b) the lesser of (i) (A) the Appraisal Percentage multiplied
by (B)(1) the Appraised Value of Eligible Inventory, minus (2)
Inventory Reserves, or (ii) (A) the Inventory Advance Rate multiplied
by (B)(1) the Cost of Eligible Inventory, minus (2) Inventory
Reserves; minus
(c) the then amount of all Availability Reserves.
"Borrowing Base Certificate" has the meaning assigned to such term in
Section 5.01(b)(i).
"Borrowing Request" means a request by the Lead Borrower on behalf of the
Borrowers for a Borrowing in accordance with Section 2.04.
"Breakage Costs" shall have the meaning set forth in Section 2.21(b).
"Business Day" means any day that is not a Saturday, Sunday or other day on
which commercial banks in Boston, Massachusetts are authorized or required by
law to remain closed, provided that, when used in connection with a LIBO Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market. Except as
otherwise provided herein, if any day on which a payment is due is not a
Business Day, then the payment shall be due on the next day following which is a
Business Day and such extension of time shall be included in computing interest
and fees in connection with such payment, provided further that when used in
connection with any Loan to the Canadian Borrower, the term "Business Day" shall
also exclude any day on which banks are authorized or required by law to be
closed in Xxxxxxx, Xxxxxxx, Xxxxxx.
"Canadian Agent" means Bank of America, N.A. [acting through its Canada
branch] having a branch in Xxxxxxx, Xxxxxxx, Xxxxxx, or any successor appointed
pursuant to the provisions hereof and includes its capacity as "Canadian
Collateral Agent".
"Canadian Availability" means $100,000,000, minus the aggregate unpaid
balance of Credit Extensions made to, or for the account of the Canadian
Borrower.
"Canadian Borrower" means InterTAN Canada Ltd.
"Canadian Commitment" shall mean, with respect to each Lender, the
commitment of such Lender hereunder to make Credit Extensions to the Canadian
Borrower in the amount set forth opposite its name on Schedule 1.1 hereto or as
may subsequently be set forth in the Register from time to time, as the same may
be reduced from time to time pursuant to Section 2.17 hereof.
"Canadian Commitment Fee" has the meaning provided therefor in Section
2.14(b).
6
"Canadian Commitment Percentage" shall mean, with respect to each Lender,
that percentage of the Canadian Commitments of all Lenders hereunder to make
Credit Extensions to the Canadian Borrower in the amount set forth opposite its
name on Schedule 1.1 hereto or as may subsequently be set forth in the Register
from time to time, as the same may be reduced from time to time pursuant to
Section 2.17 hereof.
"Canadian Lenders" means the Lenders having Canadian Commitments from time
to time or at any time.
"Canadian Letter of Credit" shall mean a letter of credit that is issued
pursuant to this Agreement for the account of the Canadian Borrower.
"Canadian Letter of Credit Outstandings" shall mean, at any time, the sum
of (a) with respect to Canadian Letters of Credit outstanding at such time, the
aggregate maximum amount that then is or at any time thereafter may become
available for drawing or payment thereunder plus (b) all amounts theretofore
drawn or paid under Canadian Letters of Credit for which the Issuing Bank has
not then been reimbursed.
"Canadian Liabilities" means (a) the payment by the Canadian Borrower of
(i) the principal of, and interest on the Loans made hereunder to, or for the
benefit of, the Canadian Borrower, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise (including
any interest that accrues after the commencement of any case or proceeding by or
against the Canadian Borrower under the Bankruptcy Code, whether or not allowed
in such case or proceeding), (ii) each payment required to be made by the
Canadian Borrower under the Credit Agreement in respect of any Letter of Credit,
when and as due, including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide cash collateral and
(iii) all other monetary obligations, including fees, costs, expenses and
indemnities, whether primary, secondary, direct, contingent, fixed or otherwise,
of the Canadian Borrower to the Secured Parties under the Credit Agreement and
the other Loan Documents, and (b) the performance of all covenants, agreements,
obligations and liabilities of the Canadian Borrower under or pursuant to this
Agreement and the other Loan Documents.
"Canadian Overadvance" means, at any time of calculation, a circumstance in
which the Credit Extensions to the Canadian Borrower exceed the Canadian
Availability.
"Canadian Prime Rate" means the rate of interest publicly announced from
time to time by Bank of America, N.A. [acting through its Canada branch] as its
reference rate of interest for loans made in Canadian dollars to Canadian
customers and designated as its "prime" rate. It is a rate set by Bank of
America, N.A. [acting through its Canada branch] based upon various factors,
including Bank of America, N.A. [acting through its Canada branch]'s costs and
desired return, general economic conditions and other factors and is used as a
reference point for pricing some loans. Any change in the Canadian Prime Rate
due to a change in Bank of America, N.A.
7
[acting through its Canada branch] Canadian Prime Rate shall be effective on the
effective date of such change in Bank of America, N.A. [acting through its
Canada branch] prime rate.
"Canadian Security Documents" means the General Security Agreements and
the deed of hypothec charging the universality of moveable property each granted
by the Canadian Borrower in favor of the Canadian Agent.
"Canadian Total Commitments" means the aggregate of the Canadian
Commitments of all Canadian Lenders.
"Capital Expenditures" means, for any period, (a) the additions to
property, plant and equipment and other capital expenditures of the Borrowers
that are (or would be) set forth in a consolidated statement of cash flows of
the Borrowers for such period prepared in accordance with GAAP and (b) Capital
Lease Obligations incurred by the Borrowers during such period.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Capped Availability" means, as of any date of determination, the excess,
if any, of (a) the lesser of (i) the Total Commitments, or (ii) the Borrowing
Base, over (b) the outstanding Credit Extensions.
"Cash Collateral Account" shall mean an interest-bearing account
established by the Domestic Borrowers with the Collateral Agent at Fleet under
the sole and exclusive dominion and control of the Collateral Agent designated
as the "Circuit City Cash Collateral Account" and, in the case of the Canadian
Borrower, an interest-bearing account established by the Canadian Borrower with
the Canadian Agent at Bank of America, N.A. [acting through its Canada branch]
under the sole and exclusive dominion and control of the Canadian Agent
designated as the "InterTAN Canada Cash Collateral Account".
"Cash Dominion Event" means either (i) the occurrence and continuance of
any Specified Event of Default, or (ii) the failure of the Borrowers to maintain
Excess Availability of at least $50,000,000 for a period of five (5) consecutive
Business Days. For purposes of this Agreement, the occurrence of a Cash Dominion
Event shall be deemed continuing (i) so long as such Specified Event of Default
has not been waived, and/or (ii) if the Cash Dominion Event arises as a result
of the Borrowers' failure to achieve Excess Availability required hereunder,
until Excess Availability has exceeded $50,000,000.00 for thirty (30)
consecutive Business Days, in which case a Cash Dominion Event shall no longer
be deemed to be continuing for purposes of this Agreement, provided that a Cash
Dominion Event shall be deemed continuing (even if the Specified Event of
Default is no longer continuing and/or Excess Availability
8
exceeds the required amounts for thirty (30) consecutive Business Days) at all
times after a Cash Dominion Event has occurred and been discontinued on three
(3) occasions in any twelve month period after the Closing Date.
"Cash Receipts" has the meaning provided therefor in Section 2.23(d).
"CD$" means Canadian dollars.
"CERCLA" means the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. ss. 9601 et seq.
"Change in Control" means, at any time, (a) occupation of a majority of the
seats (other than vacant seats) on the board of directors of the Lead Borrower
by Persons who were neither (i) nominated by the board of directors of the Lead
Borrower nor (ii) appointed by directors so nominated; or (b) any person (within
the meaning of the Securities and Exchange Act of 1934, as amended) is or
becomes the beneficial owner (within the meaning of Rule 13d-3 and 13d-5 of the
Securities and Exchange Act of 1934, as amended), directly or indirectly, of
forty percent (40%) or more of the aggregate voting power represented by the
outstanding capital stock of the Lead Borrower on a fully diluted basis, whether
as a result of the issuance of securities of the Lead Borrower, any merger,
consolidation, or otherwise, or (c) the failure of the Lead Borrower to own,
directly or indirectly, 100% of the capital stock of all of the Subsidiary
Borrowers unless pursuant to a transaction otherwise permitted hereunder.
"Change in Law" means (a) the adoption of any law, rule or regulation after
the date of this Agreement, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
the date of this Agreement or (c) compliance by any Lender or the Issuing Bank
(or, for purposes of Section 2.25(b), by any lending office of such Lender or by
such Lender's or the Issuing Bank's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made, issued or changed after the date of this Agreement.
"Charges" has the meaning provided therefor in Section 9.13.
"Closing Date" means the date on which the conditions specified in Section
4.01 are satisfied (or waived by the Agents).
"Code" means the Internal Revenue Code of 1986 and the rules and
regulations promulgated thereunder, as amended from time to time.
"Collateral" means any and all "Collateral" as defined in any applicable
Security Document.
"Collateral Agent" means FRG, in its capacity as collateral agent under the
Security Documents.
9
"Commercial Letter of Credit" means any Letter of Credit issued for the
purpose of providing the primary payment mechanism in connection with the
purchase of any materials, goods or services by a Borrower in the ordinary
course of business of such Borrower.
"Commitment" shall mean, with respect to each Lender, the commitment of
such Lender hereunder to make Credit Extensions to the Borrowers in the amounts
set forth opposite its name on Schedule 1.1 hereto or as may subsequently be set
forth in the Register from time to time, as the same may be reduced from time to
time pursuant to Section 2.17 hereof.
"Commitment Fee" has the meaning provided therefor in Section 2.14.
"Commitment Percentage" shall mean, with respect to each Lender, that
percentage of the Commitments of all Lenders hereunder to make Credit Extensions
to the Borrowers, in the amount set forth opposite its name on Schedule 1.1
hereto or as may subsequently be set forth in the Register from time to time, as
the same may be reduced from time to time pursuant to Section 2.17 hereof.
"Consolidated" means, when used to modify a financial term, test,
statement, or report of a Person, refers to the application or preparation of
such term, test, statement or report (as applicable) based upon the
consolidation, in accordance with GAAP, of the financial condition or operating
results of such Person and its Subsidiaries.
"Consolidated EBITDA" means for any twelve month period, the result for
such period of (i) Consolidated Net Income, plus (ii) depreciation, amortization
and all other non-cash charges that were deducted in the calculation of
Consolidated Net Income for such period plus (iii) provisions for income taxes
that were deducted in the calculation of Consolidated Net Income for such
period, plus (iv) Consolidated Interest Expense, plus (v) losses on sales of
assets (excluding sales in the ordinary course of business) and other
extraordinary losses that were deducted in the calculation of Consolidated Net
Income for such period, less (vi) the amount for such period of gains on sales
of assets (excluding sales in the ordinary course of business ) and other
extraordinary gains that were included in the calculation of Consolidated Net
Income for such period, all as determined on a Consolidated basis in accordance
with GAAP. Each calculation of Consolidated EBITDA under this Agreement shall be
made for the twelve month period ending on the date of such calculation.
"Consolidated Interest Expense" means, for any period for any Person, total
interest expense (including that attributable to Capital Lease Obligations in
accordance with GAAP) of such Person and its Subsidiaries on a Consolidated
basis with respect to all outstanding Indebtedness of such Person and its
Subsidiaries.
"Consolidated Net Income" means, for any period with respect to any Person,
the net income (or loss) of such Person and its Subsidiaries on a Consolidated
basis for such period taken as a single accounting period determined in
conformity with GAAP, provided that there shall be excluded (i) the income (or
loss) of any Person (other than Subsidiaries of the Lead
10
Borrower) in which any other Person (other than the Lead Borrower or any of its
Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to the Lead Borrower or any of
its Subsidiaries by such Person during such period, and (ii) the income (or
loss) of any Person accrued prior to the date it becomes a Subsidiary of the
Lead Borrower or any of its Subsidiaries or is merged into or consolidated with
the Lead Borrower or any of its Subsidiaries or that Person's assets are
acquired by the Lead Borrower or any of its Subsidiaries.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise. The
terms "Controlling" and "Controlled" have meanings correlative thereto.
"Cost" means the cost value of Inventory as reported on the Borrowers'
financial stock ledger using the cost method of accounting based on practices
which are in effect on the date of this Agreement.
"Credit Card Agreements" has the meaning provided therefor in Section
2.23(c).
"Credit Extensions" as of any day, shall be equal to the sum of (a) the
principal balance of all Loans then outstanding, and (b) the then amount of the
Letter of Credit Outstandings.
"Customer Credit Liabilities" means, at any time, the aggregate face value
at such time of (a) outstanding gift certificates and gift cards of the
Borrowers entitling the holder thereof to use all or a portion of the
certificate to pay all or a portion of the purchase price for any Inventory, and
(b) outstanding merchandise credits of the Borrowers.
"DDAs" means any checking or other demand deposit account maintained by any
Borrower into which proceeds of Collateral are deposited. All funds in such DDAs
shall be conclusively presumed to be Collateral and proceeds of Collateral and
the Agent and the Lenders shall have no duty to inquire as to the source of the
amounts on deposit in the DDAs.
"DDA Notification" has the meaning provided therefor in Section 2.23(c).
"Default" means any event or condition that constitutes an Event of Default
or that upon notice, lapse of time or both would, unless cured or waived, become
an Event of Default.
"Delinquent Lender" has the meaning given that term in Section 8.13.
"Delinquent Lender's Future Commitment" has the meaning provided therefor
in Section 8.13.
"dollars" or "$" refers to lawful money of the United States of America.
11
"Domestic Borrowers" means collectively, Circuit City Stores, Inc., Circuit
City Stores West Coast, Inc., and Orbyx Electronics, LLC.
"Domestic Commitment" shall mean, with respect to each Lender, the
commitment of such Lender hereunder to make Credit Extensions to the Domestic
Borrowers in the amount set forth opposite its name on Schedule 1.1 hereto or as
may subsequently be set forth in the Register from time to time, as the same may
be reduced from time to time pursuant to Section 2.17 hereof.
"Domestic Commitment Percentage" shall mean, with respect to each Lender,
that percentage of the Domestic Commitments of all Lenders hereunder to make
Credit Extensions to the Domestic Borrowers, in the amount set forth opposite
its name on Schedule 1.1 hereto or as may subsequently be set forth in the
Register from time to time, as the same may be reduced from time to time
pursuant to Section 2.17 hereof.
"Domestic Lenders" means the Lenders having Domestic Commitments from time
to time or at any time.
"Domestic Total Commitments" means the aggregate of the Domestic
Commitments of all Domestic Lenders.
"Eligible Credit Card Receivables" means Accounts due to a Domestic
Borrower on a non-recourse basis from Visa, Mastercard, American Express Co.,
Discovercard and other major credit card processors reasonably acceptable to the
Administrative Agent, as arise in the ordinary course of business and which have
been earned by performance. Without limiting the foregoing, none of the
following shall be deemed to be Eligible Credit Card Receivables:
(a) Accounts that have been outstanding for more than five (5)
Business Days from the date of sale;
(b) Accounts with respect to which a Domestic Borrower does not
have good, valid and marketable title thereto, free and clear of any
Encumbrance (other than Liens granted to the Collateral Agent, for
its benefit and the ratable benefit of the Secured Parties, pursuant
to the Security Documents);
(c) Accounts that are not subject to a first priority security
interest in favor of the Collateral Agent, for the benefit of itself
and the Secured Parties; or
(d) Accounts which are disputed, are with recourse, or with
respect to which a claim, counterclaim, offset or chargeback has been
asserted (to the extent of such claim, counterclaim, offset or
chargeback).
"Eligible Inventory" shall mean, as of the date of determination thereof,
(a) Eligible L/C Inventory, and (b) items of Inventory of the Domestic Borrowers
that are finished goods, merchantable and readily saleable to the public in the
ordinary course of business. Without limiting the foregoing, none of the
following shall be deemed to be Eligible Inventory:
12
(a) Inventory that is not owned solely by a Domestic Borrower,
or is leased or on consignment, or such Domestic Borrower does not
have good and valid title thereto;
(b) Inventory (including any portion thereof in transit from
vendors, other than Eligible L/C Inventory) that is not located at a
warehouse facility or store that is owned or leased by a Domestic
Borrower;
(c) Inventory that represents (i) goods damaged, defective or
otherwise unmerchantable, (ii) goods that do not conform in all
material respects to the representations and warranties contained in
this Agreement or any of the Security Documents, (iii) goods to be
returned to the vendor, or (iv) goods in the following stock ledger
locations: (A) Product Return Center, (B) Service Inventory, (C)
Damage Return Center, (D) Corporate Office, (E) MAC Inventory, and
(F) Road Support Merchandise;
(d) Inventory that is not located in the United States of
America (excluding territories and possessions thereof) other than
Eligible L/C Inventory;
(e) Inventory that is not subject to a perfected first-priority
security interest in favor of the Collateral Agent for the benefit of
the Secured Parties;
(f) Inventory which consists of samples, labels, bags,
packaging, and other similar non-merchandise categories.
(g) Inventory as to which insurance in material compliance with
the provisions of Section 5.07 hereof is not in effect.
(h) Inventory which has been sold but not yet delivered or as
to which any Domestic Borrower has accepted a deposit.
(i) Any Inventory acquired in a Permitted Acquisition, (i)
unless such Inventory otherwise constitutes Eligible Inventory and
(ii) unless and until the Agents shall have received (A) the results
of appraisals of the Inventory acquired in such acquisition, and (B)
such other due diligence as the Agent may reasonably require, all of
the results of the foregoing to be reasonably satisfactory to the
Agents.
"Eligible L/C Inventory" shall mean, as of the date of determination
thereof, without duplication of other Eligible Inventory, Inventory (a) not yet
delivered, but to be delivered, to the Domestic Borrowers, (b) the purchase of
which is supported by a Commercial Letter of Credit having an expiry within
sixty (60) days of date of issuance, (c) either (i) which has been consigned to
a Domestic Borrower or to the Issuing Bank (along with delivery to a Domestic
Borrower or the Issuing Bank, as applicable, of the documents of title with
respect thereto), or (ii) as to which the Collateral Agent has control over the
documents of title which evidence ownership of the subject Inventory (such as by
the delivery of a customs broker agency agreement, satisfactory to the
Collateral Agent), and (d) which otherwise would constitute Eligible Inventory.
13
"Environmental Laws" means all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by or with any Governmental Authority, relating in
any way to the environment, preservation or reclamation of natural resources,
handling, treatment, storage, disposal, Release or threatened Release of any
Hazardous Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, natural resource damage, costs of
environmental remediation, administrative oversight costs, fines, penalties or
indemnities), of any Person directly or indirectly resulting from or based upon
(a) violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
that, together with the Lead Borrower, is treated as a single employer under
Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of
ERISA and Section 412 of the Code, is treated as a single employer under Section
414 of the Code.
"ERISA Event" means (a) with respect to the Domestic Borrowers, any
"reportable event", as defined in Section 4043 of ERISA or the regulations
issued thereunder with respect to a Plan (other than an event for which the
30-day notice period is waived) or, with respect to the Canadian Borrower, any
such similar event under any other Applicable Law relating to Plans; (b) with
respect to the Domestic Borrowers, the existence with respect to any Plan of an
"accumulated funding deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived, and with respect to the Canadian
Borrower, the existence with respect to any Plan of any unfunded contribution,
special contribution, unfunded liability or solvency deficiency, whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA or, with respect to the Canadian Borrower, any other Applicable Law, of
an application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Lead Borrower or any of its ERISA Affiliates or
the Canadian Borrower or any of its Related Parties of any liability under Title
IV of ERISA or, with respect to the Canadian Borrower, any other Applicable Law,
with respect to the termination of any Plan; (e) the receipt by the Lead
Borrower or any ERISA Affiliate or the Canadian Borrower or any of its Related
Parties from the PBGC, the FSCO (with respect to the Canadian Borrower) or a
plan administrator of any notice relating to an intention to terminate any Plan
or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by
the Lead Borrower or any of its ERISA Affiliates or the Canadian Borrower or any
of its Related Parties of any liability with respect to
14
the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g)
the receipt by the Lead Borrower or any ERISA Affiliate or the Canadian Borrower
or any of its Related Parties of any notice, or the receipt by any Multiemployer
Plan from the Lead Borrower or any ERISA Affiliate or the Canadian Borrower or
any of its Related Parties of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA or, with respect to the Canadian Borrower, any other Applicable Law.
"Event of Default" has the meaning assigned to such term in Section 7.01.
"Excess Availability" means, as of any date of determination, the excess,
if any, of (a) the Borrowing Base, over (b) the outstanding Credit Extensions.
"Excluded Taxes" means, with respect to the Agents, any Lender, the Issuing
Bank or any other recipient of any payment to be made by or on account of any
obligation of the Borrowers hereunder, (a) income or franchise taxes imposed on
(or measured by) its gross or net income, (b) any branch profits taxes, and (c)
in the case of a Foreign Lender (other than an assignee pursuant to a request by
a Borrower under Section 2.30(b)), any withholding tax that is imposed on
amounts payable to such Foreign Lender at the time such Foreign Lender becomes a
party to this Agreement (or designates a new lending office) or is attributable
to such Foreign Lender's failure to comply with Section 2.28(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrowers with respect to such withholding tax
pursuant to Section 2.28(a).
"Existing Credit Agreement" shall have the meaning set forth in the
preamble.
"Extended Maturity Date" means June 27, 2008.
"Extension Request" shall have the meaning set forth in Section 2.10(a).
"Extension Request Response" shall have the meaning set forth in Section
2.10(b).
"Facility Guaranty" means collectively (a) any Guaranty of the Obligations
executed by the Domestic Borrowers, the Subsidiaries listed on Schedule 1.2 and
any other Subsidiaries (other than Foreign Subsidiaries) which hereafter become
Facility Guarantors in favor of the Agents, the Issuing Bank and the Lenders (it
being understood that the Canadian Borrower and other Foreign Subsidiaries shall
not be required to execute a Facility Guaranty of the Obligations of the
Domestic Borrowers), and (b) any Guaranty of the Canadian Liabilities executed
by Tourmarlet, Corp. and any of the Canadian Borrower's Subsidiaries in favor of
the Agents, the Issuing Bank and the Lenders.
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds
15
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average (rounded upwards, if necessary, to the next 1/100
of 1%) of the quotations for such day for such transactions received by Fleet
from three Federal funds brokers of recognized standing selected by it.
"Fee Letter" means the letter entitled "Amended and Restated Fee Letter"
among the Borrowers and the Administrative Agent dated as of even date herewith,
as such letter may from time to time be amended.
"Financial Officer" means, with respect to any Borrower, the chief
financial officer, treasurer, assistant treasurer, controller or assistant
controller of such Borrower.
"Fifth Third" means Fifth Third Bank Processing Solutions.
"FNANB" means First North American National Bank.
"Fleet" means Fleet National Bank, a national banking association.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than the United States of America or any State thereof or the
District of Columbia.
"Foreign Subsidiary" means any Subsidiary that is organized under the laws
of a jurisdiction other than the United States of America or any State thereof
or the District of Columbia.
"FRG" means Fleet Retail Group, Inc., a Delaware corporation.
"FRG Concentration Account" has the meaning provided therefor in Section
2.23(d)
"FSCO" means the Financial Services Commission of Ontario and any Person
succeeding to the functions thereof and includes the Superintendent under such
statute and any other Governmental Authority empowered or created by the Pension
Benefits Act of Ontario or under any other Applicable Law related to Plans.
"FSI" means Fleet Securities, Inc., a Massachusetts corporation.
"GAAP"means accounting principles which are consistent with those
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors (or successors) in effect and applicable to that accounting period
in respect of which reference to GAAP is being made.
16
"General Security Agreement" means the General Security Agreements each
dated as of July 8, 2004 among the Canadian Borrower and the Canadian Collateral
Agent for the benefit of the Secured Parties thereunder, as amended and in
effect from time to time.
"Xxxxxx Xxxxxxxx" means GB Asset Advisors, LLC or any Affiliate
thereof.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation, provided that the term "Guarantee" shall not include endorsements
for collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes,
mold, and all other substances or wastes of any nature regulated pursuant to any
Environmental Law, including any material listed as a hazardous substance under
Section 101(14) of CERCLA.
"Hedging Agreement" means any interest rate protection agreement, interest
rate swap agreement, interest rate cap agreement, interest rate collar
agreement, foreign currency exchange agreement, commodity price protection
agreement, or other interest or currency exchange rate or commodity price
hedging arrangement designed to hedge against fluctuations in interest rates or
foreign exchange rates, excluding any such agreement entered into in connection
with Permitted Securitization Transactions and any offsetting hedging agreements
related thereto (a "Securitization Hedging Agreement").
"Indebtedness" of any Person means, without duplication, (a) all payment
obligations of such Person for borrowed money (including any obligations which
are without recourse to the
17
credit of such Person but which are secured by a Lien on the property of such
Person), (b) all payment obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all payment obligations of such
Person upon which interest charges are customarily paid, (d) all payment
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (e) all payment
obligations of such Person in respect of the deferred purchase price of property
or services (excluding current accounts payable incurred in the ordinary course
of business), (f) all Indebtedness of others secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on property owned or acquired by such Person, whether or
not the Indebtedness secured thereby has been assumed, (g) all Guarantees by
such Person of Indebtedness of others, (h) all Capital Lease Obligations of such
Person, (i) all payment obligations, contingent or otherwise, of such Person as
an account party in respect of letters of credit and letters of guaranty (j) all
payment obligations, contingent or otherwise, of such Person in respect of
bankers' acceptances, (k) all Hedging Agreements (it being understood that
Securitization Hedging Agreements shall not constitute Indebtedness), and (l)
the principal and interest portions of all rental obligations of such Person
under any Synthetic Lease or similar off-balance sheet financing where such
transaction is considered borrowed money indebtedness for tax purposes but is
classified as an operating lease in accordance with GAAP. The Indebtedness of
any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes arising from any payment made hereunder or
otherwise with respect to this Agreement, other than Excluded Taxes.
"Indemnitee" has the meaning provided therefor in Section 9.03(b).
"Initial Maturity Date" means June 27, 2007.
"Interest Payment Date" means (a) with respect to any Prime Rate Loan
(including a Swingline Loan), the last day of each calendar quarter, and (b)
with respect to any LIBO Loan or BA Equivalent Loan, the last day of each
calendar quarter, and the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part.
"Interest Period" means, with respect to any LIBO Borrowing or BA
Equivalent Loan Borrowing, the period commencing on the date of such Borrowing
and ending on the numerically corresponding day in the calendar month that is
one, two, three or six months thereafter, as the Lead Borrower may elect by
notice to the Administrative Agent in accordance with the provisions of this
Agreement, provided that (a) if any Interest Period would end on a day other
than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day, and (b) any
18
Interest Period that commences 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 during which such Interest Period ends) shall end on the last Business Day
of the last calendar month of such Interest Period, (c) any Interest Period
which would otherwise end after the Termination Date shall end on the
Termination Date, and (d) notwithstanding the provisions of clause (c), no
Interest Period shall have a duration of less than one month, and if any
Interest Period applicable to a LIBO Borrowing or BA Equivalent Loan Borrowing
would be for a shorter period, such Interest Period shall not be available
hereunder. For purposes hereof, the date of a Borrowing initially shall be the
date on which such Borrowing is made and thereafter shall be the effective date
of the most recent conversion or continuation of such Borrowing.
"Inventory" has the meaning assigned to such term in the Security Documents
and, as regards the Canadian Borrower, includes all "inventory" as defined in
the PPSA.
"Inventory Advance Rate" means [CONFIDENTIAL]* percent ([CONFIDENTIAL]*%).
"Inventory Reserves" means such reserves as may be established from time to
time by the Administrative Agent in the Administrative Agent's reasonable
discretion (after consultation with the Lead Borrower (whose consent to any
Inventory Reserve shall not be required)) with respect to the determination of
the saleability, at retail, of Eligible Inventory or which reflect such other
factors as affect the appraised value of Eligible Inventory. Inventory Reserves
shall be established and calculated in a manner and methodology consistent with
the Administrative Agent's practices as of June 27, 2003 with other similarly
situated borrowers.
"Investment" has the meaning provided therefor in Section 6.04.
"Issuing Bank" means Fleet, in its capacity as the issuer of Letters of
Credit hereunder, and as to the Canadian Borrower, Bank of America, N.A. [acting
through its Canada branch], and any other Lender as the Administrative Agent and
the Lead Borrower may agree, such agreement not to be unreasonably withheld. The
Issuing Bank may, in its discretion, arrange for one or more Letters of Credit
to be issued by Affiliates of the Issuing Bank, in which case the term "Issuing
Bank" shall include any such Affiliate with respect to Letters of Credit issued
by such Affiliate.
"Judgment Conversion Date" has the meaning set forth in Section 9.17
hereof.
"Judgment Currency" has the meaning set forth in Section 9.17 hereof.
"L/C Credit Support" has the meaning set forth in Section 2.07(k) hereof.
*Confidential treatment has been requested for the redacted portions of this
agreement pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended. The confidential, redacted portions have been filed separately with the
United States Securities and Exchange Commission.
19
"L/C Disbursement" means a payment made by the Issuing Bank pursuant to a
Letter of Credit.
"Lead Borrower" means Circuit City Stores, Inc.
"LEI Acquisition" means (i) the acquisition of Logitech Electronics, Inc.
("Logitech") by the Canadian Borrower and the subsequent amalgamation of
Logitech and the Canadian Borrower, (ii) the acquisition of LEI (Asia) Ltd. by a
Subsidiary of the Lead Borrower, and (iii) the acquisition of LEI (Hong Kong)
Ltd. by a Subsidiary of the Lead Borrower.
"Lenders" shall mean the Persons identified on Schedule 1.1 and each
assignee that becomes a party to this Agreement as set forth in Section 9.05(b).
"Letter of Credit" shall mean a letter of credit that is issued pursuant to
this Agreement for the account of any Borrower, including, without limitation,
any Canadian Letter of Credit.
"Letter of Credit Fees" shall mean the fees payable in respect of
Letters of Credit pursuant to Section 2.15.
"Letter of Credit Outstandings" shall mean, at any time, the sum of (a)
with respect to Letters of Credit outstanding at such time, the aggregate
maximum amount that then is or at any time thereafter may become available for
drawing or payment thereunder plus (b) all amounts theretofore drawn or paid
under Letters of Credit for which the Issuing Bank has not then been reimbursed.
"LIBO Borrowing" shall mean a Borrowing comprised of LIBO Loans.
"LIBO Loan" shall mean any Loan bearing interest at a rate determined by
reference to the Adjusted LIBO Rate in accordance with the provisions of Article
II.
"LIBO Rate"means, with respect to any LIBO Borrowing for any Interest
Period, the rate of interest (rounded upwards, if necessary, to the next 1/16 of
1%) per annum at which deposits in dollars are offered by banks in the London
interbank market, appearing on Reuters Screen FRBD as of 11:00 a.m. (London
time) two Business Days before the first day of the Interest Period for the
subject LIBO Borrowing, for a deposit approximately in the amount of the subject
Borrowing and for a period of time approximately equal to such Interest Period;
provided, however, if the rate described above does not appear on the Reuters
System on any applicable interest determination date, the LIBO Rate shall be the
rate (rounded upward, if necessary, to the nearest 1/16 of 1%), determined on
the basis of the offered rates for deposits in dollars for a period of time
comparable to such Interest Period which are offered to the Administrative Agent
by major banks in the London interbank market as selected by Administrative
Agent at approximately 11:00 a.m. London time, on the day that is two (2)
Business Days preceding the first day of such Interest Period. In the event that
the
20
Administrative Agent is unable to obtain any such quotation as provided above,
it will be deemed that a LIBO Rate pursuant to a LIBO Borrowing cannot be
obtained.
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge, security interest, and, with
respect to the Canadian Borrower, also includes any prior claim or deemed trust
in, on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Account" has the meaning assigned to such term in Section 2.22(a).
"Loan Documents"means this Agreement, the Notes, the Letters of Credit, the
Fee Letter, all Borrowing Base Certificates, the Blocked Account Agreements, the
DDA Notifications, the Credit Card Notifications, the Security Documents, the
Facility Guaranty, and any other instrument or agreement now or hereafter
executed and delivered in connection herewith or therewith.
"Loans" shall mean all loans (including, without limitation, Revolving
Loans and Swingline Loans) at any time made to the Borrowers or for account of
the Borrowers pursuant to this Agreement.
"Margin Stock" has the meaning assigned to such term in Regulation U.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, property, assets, or condition, financial or otherwise, of
the Lead Borrower and its Subsidiaries taken as a whole, (b) the ability of the
Borrowers to perform any material obligation or to pay any Obligations under
this Agreement or any of the other Loan Documents, or (c) the validity or
enforceability of this Agreement or any of the other Loan Documents or any of
the material rights or remedies of the Administrative Agent, the Collateral
Agent or the Lenders hereunder or thereunder, including, without limitation,
with respect to the Collateral.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit) (including obligations in respect of one or more Hedging
Agreements) of any one or more of the Borrowers in an aggregate principal amount
exceeding $50,000,000.
"Maturity Date" means the Initial Maturity Date, or if extended in
accordance with Section 2.10, the Extended Maturity Date, as the case may be.
"Maximum Rate" has the meaning provided therefor in Section 9.13.
"Minority Lenders" has the meaning provided therefor in Section 9.02(d).
21
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan"means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Noncompliance Notice" has the meaning provided therefor in Section
2.06(b).
"Non-Consenting Lender" has the meaning provided therefor in Section
2.10(b).
"Notes" shall mean (i) the amended and restated promissory notes of the
Domestic Borrowers substantially in the form of Exhibit B-1, each payable to the
order of a Lender, evidencing the Revolving Loans, and (ii) the amended and
restated promissory note of the Domestic Borrowers substantially in the form of
Exhibit B-2, payable to the Swingline Lender, evidencing the Swingline Loans,
(iii) the promissory notes of the Canadian Borrower substantially in the form of
Exhibit B-3 each payable to the order of a Canadian Lender, evidencing the
Revolving Loans made to the Canadian Borrower, and (iv) the promissory note of
the Canadian Borrower substantially in the form of Exhibit B-4, payable to the
Swingline Lender, evidencing the Swingline Loans.
"Obligations" means (a) the payment by the Domestic Borrowers of (i) the
principal of, and interest on the Loans, when and as due, whether at maturity,
by acceleration, upon one or more dates set for prepayment or otherwise
(including any interest that accrues after the commencement of any case or
proceeding by or against any Borrower under the Bankruptcy Code, whether or not
allowed in such case or proceeding), (ii) each payment required to be made by
the Borrowers under the Credit Agreement in respect of any Letter of Credit,
when and as due, including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide cash collateral and
(iii) all other monetary obligations, including fees, costs, expenses and
indemnities, whether primary, secondary, direct, contingent, fixed or otherwise,
of the Borrowers to the Secured Parties under the Credit Agreement and the other
Loan Documents, and (b) the performance of all covenants, agreements,
obligations and liabilities of the Borrowers under or pursuant to this Agreement
and the other Loan Documents. Without limiting the foregoing, the term
"Obligations" includes all Canadian Liabilities.
"Online Services Agreement" has the meaning assigned to such term in
Section 2.07(d).
"Other Liabilities" means (a) the payment and performance of any Hedging
Agreements which are permitted pursuant to Section 6.01 hereof, and (b) the
payment and performance of any transaction with FRG as Collateral Agent or
Administrative Agent, or Fleet, or any of their respective Affiliates, which
arises out of any cash management, depository, investment, letter of credit,
equipment leasing, Hedging Agreement, Securitization Hedging Agreement, or other
banking or financial services provided by any such Person, in each case, in
connection with this Agreement or the other Loan Documents, as each may be
amended from time to time.
22
"Other Taxes" means any and all current or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made under any Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, any Loan Document.
"Overadvance" means, at any time of calculation, a circumstance in which
the Credit Extensions exceed the lesser of (a) the Total Commitments or (b) the
Borrowing Base.
"Participant" has the meaning provided therefor in Section 9.05(e).
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Perfection Certificate" means a certificate in the form of Annex 1 to the
Security Agreement or any other form approved by the Collateral Agent.
"Permitted Acquisition" means an Investment in, the purchase of the capital
stock in or all or a substantial part of the assets or properties of any Person,
the entering into any exchange of securities with any Person, or the entering
into any transaction, merger or consolidation of any Person, in each case in
which each of the following conditions are satisfied:
(i) Any assets acquired shall be utilized in, and if the
acquisition involves a merger, consolidation or stock acquisition,
the Person which is the subject of such acquisition shall be engaged
in, only a business permitted to be conducted by the Borrowers
pursuant to this Agreement; and
(ii) No Default or Event of Default exists or would arise after
giving effect to the consummation of the acquisition; and
(iii) The Person making the acquisition must be a Borrower or a
Subsidiary complying with the requirements of clause (vi) of this
definition; and
(iv) The Lead Borrower shall have furnished the Agents with ten
(10) Business Days prior notice of such intended acquisition and
shall have furnished the Collateral Agent with (A) a current draft of
the acquisition agreement and other acquisition documents, (B) a
summary of any due diligence undertaken by the Borrowers in
connection with such acquisition, (C) appropriate financial
statements of the Person which is the subject of such acquisition,
(D) pro forma projected financial statements, if any, and (E) such
other information as the Agents may reasonably require, provided that
the Person making the acquisition shall not be required to delay the
consummation thereof if the additional information requested by the
Agents under this clause E is not readily obtainable (but such Person
shall furnish the Agent with such additional information thereafter
as soon as reasonably practicable).
23
(v) If an acquisition of capital stock or other equity
interests, after consummation of such acquisition, a Borrower shall
own directly or indirectly a majority of the equity interests in the
Person being acquired and shall control a majority of any voting
interests, and/or shall otherwise Control the Person being acquired.
(vi) If the Person effecting the acquisition is a Subsidiary or
if the Person which is the subject of such acquisition will be
maintained as a Subsidiary of a Borrower, such Subsidiary shall have
executed such documents as may be necessary to be joined as a
"Borrower" or guarantor hereunder, as determined by the Agents, and
the Collateral Agent shall have received a first priority security
interest in such Subsidiary's inventory, accounts, and other property
of the same nature as constitutes Collateral under this Agreement in
order to secure the Obligations and the Other Liabilities, provided,
however, that any security interest from a Person which is a Foreign
Subsidiary shall secure only the Canadian Liabilities.
(vii) The aggregate consideration (exclusive of the value of
any common equity of the Lead Borrower issued or delivered in
connection with Permitted Acquisitions) furnished in connection with
Permitted Acquisitions, howsoever classified (whether as
Indebtedness, Investment or otherwise) for all acquisitions after the
Closing Date (including those described in Section 6.04(f) but
excluding the InterTAN acquisition and the LEI Acquisition) shall not
exceed $100,000,000; and
(viii) Such acquisition shall have been approved by a majority
of the board of directors (or the equivalent governing body) of the
Person which is the subject of such acquisition and such Person shall
not have announced that it will oppose such acquisition or shall not
have commenced any action which alleges that such acquisition will
violate applicable law.
"Permitted Canadian Overadvance" means a Canadian Overadvance determined by
the Canadian Agent, in its reasonable discretion, (a) which is made to maintain,
protect or preserve the Collateral granted by the Canadian Borrower and/or the
Canadian Lenders' rights under the Loan Documents, or (b) which is otherwise in
the Lenders' interests; provided that Permitted Canadian Overadvances shall not
remain outstanding for more than forty-five (45) consecutive Business Days
unless the Required Supermajority Lenders otherwise agree; and provided further
that the foregoing shall not (1) modify or abrogate any of the provisions of
Section 2.07(f) regarding the Lenders' obligations with respect to L/C
Disbursements, or (2) result in any claim or liability against the Canadian
Agent (regardless of the amount of any Canadian Overadvance) for "inadvertent
Canadian Overadvances" (i.e. where a Canadian Overadvance results from changed
circumstances beyond the control of the Canadian Agent (such as a fluctuation in
the exchange rate of the CD$ against the dollar)), and further provided that in
no event shall the Canadian Agent make a Canadian Overadvance, if after giving
effect thereto, the principal amount of the Credit Extensions to the Canadian
Borrower would exceed $105,000,000.
24
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', landlord's,
materialmen's, repairmen's and other like Liens imposed by law,
arising in the ordinary course of business and securing obligations
that are not overdue by more than 60 days or are being contested in
compliance with Section 5.05;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance, old-age pension and other social security laws or
regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, contracts (other than for the repayment of
borrowed money), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each
case in the ordinary course of business;
(e) judgment Liens in respect of judgments that do not
constitute an Event of Default under Section 7.01(k); and
(f) easements, zoning restrictions, rights-of-way, servitudes
and similar encumbrances on real property imposed by law or arising
in the ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of business
of the Borrowers or any Subsidiary of the Borrowers.
provided that, except as provided in any one or more of clauses (a) through (f)
above, the term "Permitted Encumbrances" shall not include any Lien securing
Indebtedness.
"Permitted Investments" means each of the following:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United
States of America (or by any agency thereof to the extent such
obligations are backed by the full faith and credit of the United
States of America), in each case maturing within one year from the
date of acquisition thereof;
(b) Investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, a credit rating of at least A-1 or P-1 from S&P or from
Moody's;
(c) Investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date
of acquisition thereof issued or guaranteed by or placed with, and
demand deposit and money market deposit accounts issued or offered
by, any domestic office of any commercial bank
25
organized under the laws of the United States of America or any State
thereof that has a combined capital and surplus and undivided profits
of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above
(without regard to the limitation on maturity contained in such
clause) and entered into with a financial institution satisfying the
criteria described in clause (c) above or with any primary dealer;
(e) Investments required to be made in FNANB by the Lead
Borrower to enable FNANB to comply with applicable regulatory
requirements; and
(f) Investments made by FNANB under the Community Reinvestment
Act in an amount not to exceed $5,000,000 in the aggregate.
provided that, notwithstanding the foregoing, after the occurrence and during
the continuance of a Cash Dominion Event, no such Investments shall be made by a
Borrower (and no Investments then existing shall be extended past the then
maturity date thereof) pursuant to clauses (a) through (d) above unless (i)
either (A) no Loans are then outstanding, or (B) the Investment is a temporary
Investment pending expiration of an Interest Period for a LIBO Loan or a BA
Equivalent Loan, the proceeds of which Investment will be applied to the
Obligations after the expiration of such Interest Period, and (ii) such
Investments are pledged by the applicable Borrower to the Collateral Agent as
additional collateral for the Obligations and Other Liabilities pursuant to such
agreements as may be reasonably required by the Agents.
"Permitted Overadvance" means an Overadvance determined by the
Administrative Agent, in its reasonable discretion, (a) which is made to
maintain, protect or preserve the Collateral and/or the Lenders' rights under
the Loan Documents, or (b) which is otherwise in the Lenders' interests;
provided that Permitted Overadvances shall not (i) exceed five percent (5%) of
the then Borrowing Base in the aggregate outstanding at any time or (ii) remain
outstanding for more than forty-five (45) consecutive Business Days, unless in
case of clause (ii), the Required Supermajority Lenders otherwise agree; and
provided further that the foregoing shall not (1) modify or abrogate any of the
provisions of Section 2.07(f) regarding the Lender's obligations with respect to
L/C Disbursements, or (2) result in any claim or liability against the
Administrative Agent (regardless of the amount of any Overadvance) for
"inadvertent Overadvances" (i.e. where an Overadvance results from changed
circumstances beyond the control of the Administrative Agent (such as a
reduction in the collateral value)), and further provided that in no event shall
the Administrative Agent make an Overadvance, if after giving effect thereto,
the principal amount of the Credit Extensions would exceed the Total Commitments
(as in effect prior to any termination of the Commitments pursuant to Section
7.01 hereof).
26
"Permitted Securitization Transaction" means a transaction in which (i)
credit card receivables or other financial assets originated or acquired by a
Borrower or any Subsidiary of a Borrower are transferred to one or more
bankruptcy remote, special purpose entities in a manner that legally isolates
the transferred assets from such Borrower or Subsidiary (such that the
transferred assets would not be included in the estate of such Borrower or such
Subsidiary in a bankruptcy, receivership or insolvency proceeding), and (ii)
asset backed certificates or other securities evidencing an interest in, or
otherwise backed by, the transferred assets are sold to investors, and (iii)
such Borrower or such Subsidiary receives fair value in the form of cash and
other consideration for such transferred assets.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA), or, with respect to the Canadian Borrower, any
employee pension benefit plan which is considered to be a pension plan for the
purposes of any applicable pension benefits standards or Applicable Law and any
other employee benefit plan, and: (a) in respect of which the Lead Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA; or (b) in respect of the Canadian Borrower or any of its Related Parties,
is a plan maintained by the Canadian Borrower or any of its Related Parties as a
plan to which the Canadian Borrower or any of its Related Parties contributes or
is required to contribute or any other plan with respect to which the Canadian
Borrower or any of its Related Parties has incurred or may incur liability,
including contingent liability, either to such plan or to any Person,
administration or Governmental Authority, including the FSCO.
"PPSA" means the Personal Property Security Act of Ontario ( or any
successor statute) or similar legislation of any other Canadian jurisdiction,
including, without limitation, the Civil Code of Quebec, the laws of which are
required by such legislation to be applied in connection with the issue,
perfection, enforcement, opposability, validity or effect of security interests.
"Prime Rate" shall mean, for any day, the higher of (a) the annual rate of
interest then most recently announced by Fleet at its head office in Boston,
Massachusetts as its "Prime Rate" and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1% (0.50%) per annum. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate being
charged to any customer. If for any reason the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Federal Funds Effective Rate for any reason,
including the inability or failure of the Administrative Agent to obtain
sufficient quotations thereof in accordance with the terms hereof, the Prime
Rate shall be determined without regard to clause (b) of the first sentence of
this definition, until the circumstances giving rise to such inability no longer
exist. Any change in the Prime Rate due to a change in Fleet's Prime Rate or the
Federal Funds Effective Rate shall be
27
effective on the effective date of such change in Fleet's Prime Rate or the
Federal Funds Effective Rate, respectively.
"Prime Rate Loan" shall mean any Loan bearing interest at a rate determined
by reference to the Prime Rate or the Canadian Prime Rate, as the case may be,
in accordance with the provisions of Article II.
"Real Estate"means all land, together with the buildings, structures,
parking areas, and other improvements thereon, now or hereafter owned by any
Borrower, including all easements, rights-of-way, servitudes and similar rights
relating thereto and all leases, tenancies, and occupancies thereof.
"Receivables Advance Rate" means 80%.
"Register" has the meaning set forth in Section 9.05(c).
"Regulation U" means Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" means Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Release" has the meaning set forth in Section 101(22) of CERCLA.
"Required Lenders" shall mean, at any time, Lenders having Commitments at
least equal to 51% of the Total Commitments, or if the Commitments have been
terminated, Lenders whose percentage of the outstanding Credit Extensions (after
settlement and repayment of all Swingline Loans by the Lenders) aggregate not
less than 51% of all such Credit Extensions.
"Required Supermajority Lenders" shall mean, at any time, Lenders having
Commitments outstanding representing at least 66 2/3% of the Total Commitments
outstanding or if the Commitments have been terminated, Lenders whose percentage
of the outstanding Credit Extensions (after settlement and repayment of all
Swingline Loans by the Lenders) aggregate not less than 66 2/3% of all such
Credit Extensions.
"Reserves" means the Inventory Reserves and Availability Reserves.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any shares of any class of
capital stock of any Borrower, or any payment (whether in cash, securities or
other property), including any sinking
28
fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such shares of capital stock of
any Borrower or any option, warrant or other right to acquire any such shares of
capital stock of any Borrower.
"Restricted Subsidiary" means any Subsidiary of any Borrower other than any
such Subsidiary (i) that had, as of the end of the most recent fiscal quarter,
tangible net assets (as determined in accordance with GAAP) of less than
$5,000,000, (ii) that is a Special Purpose Entity (including, without
limitation, Tyler International Funding, Inc. and DC Funding International,
Inc.), or (iii) that is designated by the Lead Borrower and the Administrative
Agent as an unrestricted subsidiary for purposes of the Loan Documents.
"Revolving Loans" means all Loans at any time made by a Lender pursuant to
Section 2.01.
"S&P" means Standard & Poor's Rating Services, a division of the
XxXxxx-Xxxx Companies, Inc.
"Secured Parties" has the meaning assigned to such term in the Security
Agreement and the Canadian Security Documents, respectively.
"Securitization Hedging Agreement" has the meaning assigned to such term in
the definition of Hedging Agreement.
"Securitization Revolver" means collectively, the revolving lines of credit
established by the Lead Borrower in favor of DC Funding International, Inc. and
Tyler International Funding, Inc., respectively under the revolving credit
agreements which constitute a part of a Permitted Securitization Transaction.
"Security Agreement" means the Security Agreement dated as of June 27, 2003
among the Borrowers and the Collateral Agent for the benefit of the Secured
Parties, as amended and in effect from time to time.
"Security Documents" means the Security Agreement, the Canadian Security
Documents, and each other security agreement, guaranty, or other instrument or
document executed and delivered pursuant to Section 2.23, Section 5.12 or any
other provision hereof or any other Loan Document, to secure any of the
Obligations, the Canadian Liabilities and Other Liabilities.
"Settlement Date" has the meaning provided in Section 2.08(b).
"Shrink" means Inventory which has been lost, misplaced, stolen, or is
otherwise unaccounted for.
29
"Solvent" means, with respect to any Person on a particular date, that on
such date (a) at fair valuations, all of the properties and assets of such
Person are greater than the sum of the debts, including contingent liabilities,
of such Person, (b) the present fair saleable value of the properties and assets
of such Person is not less than the amount that would be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person is able to realize upon its properties and assets and
pay its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (d) such Person
does not intend to, and does not believe that it will, incur debts beyond such
Person's ability to pay as such debts mature, and (e) such Person is not engaged
in a business or a transaction, and is not about to engage in a business or
transaction, for which such Person's properties and assets would constitute
unreasonably small capital after giving due consideration to the prevailing
practices in the industry in which such Person is engaged.
"Special Purpose Entity" means a bankruptcy remote, special purpose entity
that (i) satisfied, as of the date of its formation, the special purpose entity
criteria published by Standard & Poors and in effect as of such date, and (ii)
was created to facilitate one or more Permitted Securitization Transactions.
"Specified Event of Default" means the occurrence of any Event of Default
described in any of Section 7.01(a), Section 7.01(b), Section 7.01(c), Section
7.01(d) (but as it relates to Section 2.23 and Section 5.01(b)(i) only), Section
7.01(h), Section 7.01(i), or Section 7.01(j).
"Standby Letter of Credit" means any Letter of Credit other than a
Commercial Letter of Credit.
"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred
to as "Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D. LIBO
Loans shall be deemed to constitute eurocurrency funding and to be subject to
such reserve requirements without benefit of or credit for proration, exemptions
or offsets that may be available from time to time to any Lender under such
Regulation D or any comparable regulation. The Statutory Reserve Rate shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"Subsidiary" means, with respect to any Person (the "parent") at any date,
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50%
of the
30
equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent and/or one or more subsidiaries of the parent.
"Subsidiary Borrowers" means all Borrowers other than the Lead Borrower.
"Swingline Lender" means, as applicable, FRG, in its capacity as lender of
Swingline Loans to the Domestic Borrowers hereunder, and Bank of America, N.A.
[acting through its Canada branch], in its capacity as lender of Swingline Loans
to the Canadian Borrower hereunder.
"Swingline Loan" shall mean a Loan made by the Swingline Lender to the
Domestic Borrowers or the Canadian Borrower, as applicable, pursuant to Section
2.06 hereof.
"Synthetic Lease" means any lease or other agreement for the use or
possession of property creating obligations which does not appear as
Indebtedness on the balance sheet of the lessee thereunder but which, upon the
insolvency or bankruptcy of such Person, would be characterized as Indebtedness
of such lessee without regard to the accounting treatment.
"Taxes" means any and all current or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
"Termination Date" shall mean the earliest to occur of (i) the Maturity
Date, (ii) the date on which the maturity of the Loans are accelerated and the
Commitments are terminated in accordance with Section 7.01, or (iii) the date of
the occurrence of any Event of Default pursuant to Section 7.01(h) or Section
7.01(i).
"Total Commitments" shall mean, at any time, the sum of the Domestic
Commitments and the Canadian Commitments at such time.
"Type", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBO Rate or the Prime Rate or the BA
Rate, as applicable.
"Unused Canadian Commitment" means on any day, (a) the then Canadian Total
Commitments minus (b) the sum of (i) the principal amount of Loans to the
Canadian Borrower then outstanding, and (ii) the then Letter of Credit
Outstandings of the Canadian Borrower.
"Unused Commitment" shall mean, on any day, (a) the then Domestic Total
Commitments minus (b) the sum of (i) the principal amount of Loans of the
Domestic Borrowers then outstanding, and (ii) the then Letter of Credit
Outstandings of the Domestic Borrowers.
"Wachovia" means Wachovia Bank, National Association.
31
"Wachovia Blocked Account Agreement" shall have the meaning set forth in
Section 2.23(c).
"Wachovia Concentration Account" shall have the meaning set forth in
Section 2.23(c).
"Withdrawal Liability" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.02. Terms Generally.
The definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (c) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d)
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement, (e) the term "security interest" shall include a hypothec, (f)
the term "solidary" as used herein shall be read and interpreted in accordance
with the Civil Code of Quebec, (g) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all
tangible, moveable and immoveable, and intangible assets and properties,
including cash, securities, accounts and contract rights and (h) all references
to "$" or "dollars" or to amounts of money shall, unless otherwise expressly
provided to be CD$, be deemed to be references to the lawful currency of the
United States of America.
Section 1.03. Accounting Terms; GAAP.
Except as otherwise expressly provided herein, all terms of an accounting
or financial nature shall be construed in accordance with GAAP, as in effect
from time to time, provided that, if the Lead Borrower notifies the
Administrative Agent that the Borrowers request an amendment to any provision
hereof to eliminate the effect of any change occurring after the date hereof in
GAAP or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrowers that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted
32
on the basis of GAAP as in effect and applied immediately before such change
shall have become effective until such provision shall have been amended in
accordance herewith.
Article II
Amount and Terms of Credit
Section 2.01. Commitment of the Lenders.
(a) Each Domestic Lender severally and not jointly with any
other Lender, agrees, upon the terms and subject to the conditions herein set
forth, to extend credit to the Domestic Borrowers and each Canadian Lender
severally and not jointly with any other Lenders, agrees upon the terms and
subject to the conditions herein set forth, to extend credit to the Canadian
Borrower on a revolving basis, in the form of Revolving Loans and Letters of
Credit and in an amount not to exceed the lesser of such Lender's Commitment or
such Lender's Commitment Percentage of the Borrowing Base, subject to the
following limitations:
(i) The aggregate outstanding amount of the Credit
Extensions shall not at any time exceed the lower of (i) (x)
$500,000,000 or (y) such lesser amount to which the Total
Commitments have then been decreased by the Borrowers
pursuant to Section 2.17 hereof, or (ii) the then amount of
the Borrowing Base.
(ii) No Lender shall be obligated to issue any Letter
of Credit, and Letters of Credit shall be available from the
Issuing Bank, subject to the ratable participation of all
Lenders, as set forth in Section 2.07. The Borrowers will not
at any time permit (A) the aggregate Letter of Credit
Outstandings to exceed $250,000,000 or (B) the aggregate
Canadian Letter of Credit Outstandings to exceed
$100,000,000.
(iii) The Loans made to and the Letters of Credit
issued on behalf of, the Canadian Borrower by the Canadian
Lenders may be either in $ or CD$, at the option of the
Canadian Borrower, as herein set forth.
(iv) The aggregate outstanding amount of Credit
Extensions to the Canadian Borrower shall not at any time
exceed the lower of (A) the Canadian Total Commitments or (B)
the then amount of the Borrowing Base minus Credit Extensions
then outstanding in favor of the Domestic Borrowers.
(v) The aggregate outstanding amount of Credit
Extensions to the Domestic Borrowers shall not at any time
exceed the lower of (A) the Domestic Total Commitments, or
(B) the then amount of the Borrowing Base minus Credit
Extensions then outstanding in favor of the Canadian
Borrower.
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(vi) No Lender shall be obligated to make any Credit
Extension (A) to the Domestic Borrowers in excess of such
Lender's Domestic Commitment, or (B) to the Canadian Borrower
in excess of such Lender's Canadian Commitment.
(vii) Subject to all of the other provisions of this
Agreement, Revolving Loans that are repaid may be reborrowed
prior to the Termination Date. No new Credit Extension,
however, shall be made to the Borrowers after the Termination
Date.
(b) Each Borrowing by the Domestic Borrowers of Revolving Loans
(other than Swingline Loans) shall be made by the Domestic Lenders pro rata in
accordance with their Domestic Commitments, and each Borrowing by the Canadian
Borrower of Revolving Loans (other than Swingline Loans) shall be made by the
Canadian Lenders pro rata in accordance with their Canadian Commitments. The
failure of any Domestic Lender or Canadian Lender, as applicable, to make any
Loan to the Domestic Borrowers or the Canadian Borrower, as applicable, shall
neither relieve any other Domestic Lender or Canadian Lender, as applicable, of
its obligation to fund its Loan to the Domestic Borrowers or the Canadian
Borrower, as applicable, in accordance with the provisions of this Agreement nor
increase the obligation of any such other Domestic Lender or Canadian Lender, as
applicable.
Section 2.02. Intentionally Omitted
Section 2.03. Reserves; Changes to Reserves.
(a) The initial Inventory Reserves and Availability Reserves as
of the date of this Agreement are the following:
(i) Shrink (an Inventory Reserve): An amount equal to
one-half of one percent (0.50%) of the gross sales of the
Domestic Borrowers for the fiscal year to date or determined
based on such other methodology as the Lead Borrower and the
Administrative Agent may agree. The percentage of gross sales
to be reserved hereunder may be adjusted by the
Administrative Agent based upon the results of any physical
inventory undertaken by the Domestic Borrowers in accordance
with the provisions of Section 2.03(b) hereof.
(ii) Rent (an Availability Reserve): An amount equal to
two months rent for all of the Domestic Borrowers' leased
locations in the states of Virginia, Pennsylvania, Washington
and other states in which Applicable Law provides a landlord
with a Lien for unpaid rent having priority over the Lien of
the Collateral Agent, other than leased locations with
respect to which the Collateral Agent has received a
landlord's waiver of lien in form reasonably satisfactory to
the Collateral Agent or the applicable lease contains such a
waiver in form reasonably satisfactory to the Collateral
Agent.
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(iii) Layaways (an Availability Reserve): An amount
equal to 100% of the customer deposits made for layaway goods
received by the Domestic Borrowers.
(iv) Customer Credit Liabilities (an Availability
Reserve): An amount equal to 50% of the Domestic Borrowers'
Customer Credit Liabilities as reflected in the Domestic
Borrowers' books and records.
(b) The Administrative Agent may hereafter establish additional
Reserves or change any of the foregoing Reserves, in the exercise of the
reasonable judgment of the Administrative Agent after furnishing ten (10) days
prior notice to the Lead Borrower , provided that the Administrative Agent shall
not modify the methodology in which Reserves described in Section 2.03(a) hereof
are determined from time to time, and further provided that in no event shall
the Administrative Agent establish new Reserves in any fiscal quarter in an
aggregate amount in excess of ten percent (10%) of the Borrowing Base (as set
forth in the most recent Borrowing Base Certificate delivered to the
Administrative Agent under Section 5.01(b) of this Agreement).
Section 2.04. Making of Loans.
(a) Except as set forth in Section 2.18 and Section 2.26, Loans
(other than Swingline Loans) by the Lenders shall be either Prime Rate Loans or
LIBO Loans or BA Equivalent Loans as the Lead Borrower on behalf of the Domestic
Borrowers, or the Canadian Borrower, may request (which request shall, in the
case of the Canadian Borrower, be made in the form attached hereto as Exhibit F,
and in the case of Prime Rate Loans of the Canadian Borrower, indicate whether
CD$ or $ advances are requested) subject to and in accordance with this Section
2.04, provided that all Swingline Loans shall be only Prime Rate Loans. All
Loans made pursuant to the same Borrowing shall, unless otherwise specifically
provided herein, be Loans of the same Type. Each Lender may fulfill its
Commitment with respect to any Loan by causing any lending office of such Lender
to make such Loan; but any such use of a lending office shall not affect the
obligation of the Borrowers to repay such Loan in accordance with the terms of
the applicable Note. Each Lender shall, subject to its overall policy
considerations, use reasonable efforts (but shall not be obligated) to select a
lending office which will not result in the payment of increased costs by the
Borrowers pursuant to Section 2.25. Subject to the other provisions of this
Section 2.04 and the provisions of Section 2.26, Borrowings of Loans of more
than one Type may be incurred at the same time, but no more than ten (10)
Borrowings of LIBO Loans and no more than ten (10) Borrowings of BA Equivalent
Loans may be outstanding at any time.
(b) The Lead Borrower shall give the Administrative Agent three
(3) Business Days' prior telephonic notice (thereafter confirmed in writing) of
each LIBO Borrowing or BA Equivalent Loans Borrowing and one (1) Business Day's
prior notice of each Borrowing of Prime Rate Loans. Any such notice, to be
effective, must be received by the Administrative
35
Agent not later than 11:00 a.m., Boston time, on the third Business Day in the
case of LIBO Loans or BA Equivalent Loans prior to, and on the first Business
Day in the case of Prime Rate Loans prior to, the date on which such Borrowing
is to be made. Such notice shall be irrevocable and shall specify the amount of
the proposed Borrowing (which shall be in an integral multiple of $1,000,000,
but not less than $5,000,000 in the case of LIBO Loans and be in a minimum
principal amount of CD$1,000,000 and increments of CD$500,000 in the case of BA
Equivalent Loans) and the date thereof (which shall be a Business Day) and shall
contain disbursement instructions. Such notice shall specify whether the
Borrowing then being requested is to be a Borrowing of Prime Rate Loans or LIBO
Loans or BA Equivalent Loans and, if LIBO Loans or BA Equivalent Loans, the
Interest Period with respect thereto. If no election of Interest Period is
specified in any such notice for a Borrowing of LIBO Loans or BA Equivalent
Loans, such notice shall be deemed a request for an Interest Period of one
month. If no election is made as to the Type of Loan, such notice shall be
deemed a request for a Borrowing of Prime Rate Loans. The Administrative Agent
shall promptly notify each Lender of its proportionate share of such Borrowing,
the date of such Borrowing, the Type of Borrowing being requested and the
Interest Period or Interest Periods applicable thereto, as appropriate. On the
borrowing date specified in such notice, each Lender shall make its share of the
Borrowing available at the office of the Administrative Agent at 00 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, no later than 12:00 noon, Boston time, in
immediately available funds. Unless the Administrative Agent shall have received
notice from a Lender prior to the proposed date of any Borrowing that such
Lender will not make available to the Administrative Agent such Lender's share
of such Borrowing, the Administrative Agent may assume that such Lender has made
such share available on such date in accordance with this Section and may, in
reliance upon such assumption, make available to the Borrowers a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Administrative Agent, then the applicable
Lender and the Borrowers severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrowers
to but excluding the date of payment to the Administrative Agent, at (i) in the
case of such Lender, at the Federal Funds Effective Rate, or (ii) in the case of
the Borrowers, the interest rate applicable to Prime Rate Loans. If such Lender
pays such amount to the Administrative Agent, then such amount shall constitute
such Lender's Loan included in such Borrowing. Upon receipt of the funds made
available by the Lenders to fund any Borrowing hereunder, the Administrative
Agent shall disburse such funds in the manner specified in the notice of
borrowing delivered by the Lead Borrower and shall use reasonable efforts to
make the funds so received from the Lenders available to the Borrowers no later
than 1:00 p.m., Boston time.
(c) The Administrative Agent or the Canadian Agent, as
applicable, without the request of the Lead Borrower or the Canadian Borrower,
as applicable, may advance any interest, fee, service charge, or other payment
to which any Agent or their Affiliates or any Lender is entitled from any
Borrower pursuant hereto or any other Loan Document and may charge the same to
the Loan Account notwithstanding that an Overadvance or a Canadian Overadvance,
as applicable, may result thereby. The Administrative Agent or the Canadian
36
Borrower, as applicable, shall advise the Lead Borrower or the Canadian
Borrower, as applicable, of any such advance or charge promptly after the making
thereof. Such action on the part of the Administrative Agent or the Canadian
Agent, as applicable, shall not constitute a waiver of the Administrative
Agent's or the Canadian Agent's, as applicable, rights and each Borrower's
obligations under Section 2.20(a). Any amount which is added to the principal
balance of the Loan Account as provided in this Section 2.04(c) shall bear
interest at the interest rate then and thereafter applicable to Prime Rate
Loans.
(d) Notwithstanding anything to the contrary herein contained,
with respect to the Canadian Borrower, (i) all references to "the Lead Borrower"
and "the Administrative Agent" in Section 2.04(b) and (c), Section 2.18, Section
2.19(a) and Section 2.21(a) shall mean and refer to the Canadian Borrower and
the Canadian Agent , respectively, (ii) the address of the Canadian Agent to
which each Lender must make its share of Borrowings to the Canadian Borrower
available is 000 Xxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx, Xxxxxx, X0X 0X0, and (iii)
the Canadian Agent shall promptly notify the Administrative Agent of each
Borrowing by the Canadian Borrower, the date of such Borrowing, the Type of
Borrowing being requested and the Interest Period or Periods applicable thereto.
Section 2.05. Overadvances.
The Agents and the Lenders have no obligation to make any Loan or to
provide any Letter of Credit if an Overadvance or a Canadian Overadvance would
result. The Administrative Agent may, in its discretion, make Permitted
Overadvances to the Domestic Borrowers, and the Canadian Agent may, in its
discretion, make Permitted Canadian Overadvances to the Canadian Borrower, as
applicable, without the consent of the Lenders and each Lender shall be bound
thereby. Any Permitted Overadvances or Permitted Canadian Overadvances may
constitute Swingline Loans. The making of any Permitted Overadvance or Permitted
Canadian Overadvance is for the benefit of the Domestic Borrowers or the
Canadian Borrower, as applicable; such Permitted Overadvances or Permitted
Canadian Overadvances, as applicable, constitute Revolving Loans and
Obligations. The making of any such Permitted Overadvances, or Permitted
Canadian Overadvances, as the case may be, on any one occasion shall not
obligate the Administrative Agent, Canadian Agent, or any Lender to make or
permit any Permitted Overadvances or Permitted Canadian Overadvances on any
other occasion or to permit such Permitted Overadvances or Permitted Canadian
Overadvances, as applicable, to remain outstanding.
Section 2.06. Swingline Loans
(a) The Swingline Lender is authorized by the Domestic Lenders
and the Canadian Lenders, as applicable, and shall, subject to the provisions of
this Section, make Swingline Loans (i) to the Domestic Borrowers up to
$60,000,000 in the aggregate outstanding at any time (which requests for
Borrowings of Swingline Loans shall be in minimum integrals of $250,000) and
(ii) to the Canadian Borrower up to $20,000,000 in the aggregate outstanding at
37
any time (which requests for Borrowings of Swingline Loans shall be in minimum
integrals of $250,000 or CD$250,000, as applicable), in each case consisting
only of Prime Rate Loans, upon a notice of Borrowing received by the
Administrative Agent or the Canadian Agent, as applicable, and the Swingline
Lender (which notice may be submitted prior to 1:00 p.m., Boston time, on the
Business Day on which such Swingline Loan is requested). Swingline Loans shall
be subject to periodic settlement with the Domestic Lenders and the Canadian
Lenders, as applicable, under Section 2.08 below.
(b) Swingline Loans may be made only in the following
circumstances: (A) for administrative convenience, the Swingline Lender shall,
at the Lead Borrower's request, make Swingline Loans in reliance upon the
Borrowers' actual or deemed representations under Section 4.02, that the
applicable conditions for borrowing are satisfied or (B) for Permitted
Overadvances or Permitted Canadian Overadvances, as applicable. If the
conditions for borrowing under Section 4.02 cannot be fulfilled, the Lead
Borrower shall give immediate notice thereof to the Administrative Agent or the
Canadian Agent, as applicable, and the Swingline Lender (a "Noncompliance
Notice"), and the Administrative Agent or the Canadian Agent, as applicable,
shall promptly provide each Lender with a copy of the Noncompliance Notice. If
the conditions for borrowing under Section 4.02 cannot be fulfilled, the
Required Lenders may direct the Swingline Lender to, and the Swingline Lender
thereupon shall, cease making Swingline Loans (other than Permitted Overadvances
or Permitted Canadian Overadvances, as applicable) until such conditions can be
satisfied or are waived in accordance with Section 9.02. Unless the Required
Lenders so direct the Swingline Lender, the Swingline Lender may, but is not
obligated to, continue to make Swingline Loans beginning one Business Day after
the Non-Compliance Notice is furnished to the Lenders. Notwithstanding the
foregoing, no Swingline Loans shall be made pursuant to this subsection (b)
(other than Permitted Overadvances) if the limitations set forth in Section
2.01(a) would be exceeded.
Section 2.07. Letters of Credit.
(a) Upon the terms and subject to the conditions herein set
forth, the Lead Borrower on behalf of the Domestic Borrowers and the Canadian
Borrower for itself, may request the Issuing Bank or the Canadian Agent in the
case of the Canadian Borrower, at any time and from time to time after the date
hereof and prior to the Termination Date, to issue or to cause to be issued, and
subject to the terms and conditions contained herein, the Issuing Bank or
Canadian Agent in the case of the Canadian Borrower shall issue or cause to be
issued, for the account of the relevant Borrower one or more Letters of Credit;
provided that no Letter of Credit shall be issued if after giving effect to such
issuance (i) the aggregate Letter of Credit Outstandings shall exceed
$250,000,000, (ii) the aggregate Canadian Letter of Credit Outstandings shall
exceed $100,000,000, or (iii) the limitations set forth in Section 2.01(a) would
be exceeded; and provided, further, that no Letter of Credit shall be issued if
the Issuing Bank shall have received notice from the Administrative Agent or the
Canadian Agent, as applicable, or the Required Lenders that the conditions to
such issuance have not been met.
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(b) Each Standby Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date one year after the date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five (5) Business Days prior to then effective Maturity Date, provided
that each Standby Letter of Credit may, upon the request of the Lead Borrower,
include a provision whereby such Letter of Credit shall be renewed automatically
for additional consecutive periods of twelve (12) months or less (but not beyond
the date that is five (5) Business Days prior to the then effective Maturity
Date) unless the Issuing Bank notifies the beneficiary thereof at least thirty
(30) days prior to the then-applicable expiration date that such Letter of
Credit will not be renewed.
(c) Each Commercial Letter of Credit shall expire at or prior
to the close of business on the earlier of (i) the date 120 days after the date
of the issuance of such Commercial Letter of Credit and (ii) the date that is
five (5) Business Days prior to the then effective Maturity Date.
(d) Drafts drawn under any Letter of Credit shall be reimbursed
by the Domestic Borrowers in the case of any Letter of Credit issued for them
and by the Canadian Borrower in the case of a Canadian Letter of Credit, in the
currency in which the Letter of Credit is issued no later than the Business Day
following the date of any such payment thereof by the Issuing Bank by paying to
the Administrative Agent or the Canadian Agent, as applicable, an amount equal
to such drawing (together with interest as provided in Section 2.07(e)) not
later than 3:00 p.m., Boston time, on such date, provided that the Lead Borrower
or the Canadian Borrower as applicable may, subject to the conditions to
borrowing set forth herein, request in accordance with Section 2.04 or Section
2.06 that such payment be financed with a Revolving Loan consisting of a Prime
Rate Loan, or a Swingline Loan in an equivalent amount and, to the extent so
financed, the Borrowers' obligation to make such payment shall be discharged and
replaced by the resulting Prime Rate Loan or Swingline Loan. The Issuing Bank
shall, promptly following its receipt thereof, examine all documents purporting
to represent a demand for payment under a Letter of Credit. The Issuing Bank
shall promptly notify the Administrative Agent or the Canadian Agent, as
applicable, and the Lead Borrower or the Canadian Borrower, as applicable by
electronic transmission pursuant to the online services agreement then in effect
between the Lead Borrower or the Canadian Borrower, as applicable and the
Issuing Bank (the "Online Services Agreement") or if the Online Services
Agreement is not then in effect, by telephone (confirmed by telecopy) of such
demand for payment and whether the Issuing Bank has made or will make payment
thereunder (which payment shall not be made until two (2) Business Days after
such notice from the Issuing Bank to the Lead Borrower or the Canadian Borrower,
as applicable), provided that any failure to give or delay in giving such notice
shall not relieve the Borrowers of their obligation to reimburse the Issuing
Bank and the Lenders with respect to any such payment.
(e) If the Issuing Bank shall make any L/C Disbursement, then,
unless the applicable Borrowers shall reimburse the Issuing Bank in full on the
date such payment is made,
39
the unpaid amount thereof shall bear interest, for each day from and including
the date such payment is made to but excluding the date that such Borrowers
reimburse the Issuing Bank therefor, at the rate per annum then applicable to
Prime Rate Loans, provided that if such Borrowers fail to reimburse such Issuing
Bank when due pursuant to paragraph (d) of this Section, then Section 2.12 shall
apply. Interest accrued pursuant to this paragraph shall be for the account of
the Issuing Bank, except that interest accrued on and after the date of payment
by any Lender pursuant to paragraph (g) of this Section to reimburse the Issuing
Bank shall be for the account of such Lender to the extent of such payment.
(f) Immediately upon the issuance of any Letter of Credit by
the Issuing Bank (or the amendment of a Letter of Credit increasing the amount
thereof), and without any further action on the part of the Issuing Bank, the
Issuing Bank shall be deemed to have sold to each Domestic Lender or Canadian
Lender, as applicable, and each such Lender shall be deemed unconditionally and
irrevocably to have purchased from the Issuing Bank, without recourse or
warranty, an undivided interest and participation, to the extent of such
Lender's Domestic Commitment Percentage or Canadian Commitment Percentage, as
applicable, in such Letter of Credit, each drawing thereunder and the
obligations of the Borrowers under this Agreement and the other Loan Documents
with respect thereto. Upon any change in the Domestic Commitments or Canadian
Commitments, as applicable, pursuant to Section 2.17, it is hereby agreed that
with respect to all Letter of Credit Outstandings, there shall be an automatic
adjustment to the participations hereby created to reflect the new Domestic
Commitment Percentages or Canadian Commitment Percentages, as applicable, of the
assigning and assignee Lenders and any Additional Commitment Lender. Any action
taken or omitted by the Issuing Bank under or in connection with a Letter of
Credit, if taken or omitted in the absence of gross negligence, bad faith or
willful misconduct, shall not create for the Issuing Bank any resulting
liability to any Lender.
(g) In the event that the Issuing Bank makes any L/C
Disbursement and the Borrowers shall not have reimbursed such amount in full to
the Issuing Bank pursuant to Section 2.07(d), the Issuing Bank shall promptly
notify the Administrative Agent, or the Canadian Agent, as applicable, which
shall promptly notify each Domestic Lender or Canadian Lender, as applicable, of
such failure, and each Domestic Lender or Canadian Lender, as applicable, shall
promptly and unconditionally pay to the Administrative Agent or the Canadian
Agent, as applicable, for the account of the Issuing Bank the amount of such
Lender's Domestic Commitment Percentage or Canadian Commitment Percentage, as
applicable, of such unreimbursed payment in dollars and in same day funds. If
the Issuing Bank so notifies the Administrative Agent, or the Canadian Agent, as
applicable, and the Administrative Agent, or the Canadian Agent, as applicable,
so notifies the Lenders prior to 11:00 a.m., Boston time, on any Business Day,
each such Domestic Lender or Canadian Lender, as applicable, shall make
available to the Issuing Bank such Lender's Domestic Commitment Percentage or
Canadian Commitment Percentage, as applicable, of the amount of such payment on
such Business Day in same day funds (or if such notice is received by the
Domestic Lenders or Canadian Lenders, as applicable, after 11:00 a.m., Boston
time on the day of receipt, payment shall be made on the
40
immediately following Business Day). If and to the extent such Domestic Lender
or Canadian Lender shall not have so made its Domestic Commitment Percentage or
Canadian Commitment Percentage, as applicable, of the amount of such payment
available to the Issuing Bank, such Domestic Lender or Canadian Lender, as
applicable, agrees to pay to the Issuing Bank, forthwith on demand such amount,
together with interest thereon, for each day from such date until the date such
amount is paid to the Administrative Agent, or the Canadian Agent, as
applicable, for the account of the Issuing Bank at the Federal Funds Effective
Rate. Each Lender agrees to fund its Domestic Commitment Percentage or Canadian
Commitment Percentage, as applicable, of such unreimbursed payment
notwithstanding a failure to satisfy any applicable lending conditions or the
provisions of Section 2.01 or Section 2.07, or the occurrence of the Termination
Date. The failure of any Domestic Lender or Canadian Lender to make available to
the Issuing Bank its Domestic Commitment Percentage or Canadian Commitment
Percentage, as applicable, of any payment under any Letter of Credit shall
neither relieve any other Domestic Lender or Canadian Lender, as applicable, of
its obligation hereunder to make available to the Issuing Bank its Domestic
Commitment Percentage or Canadian Commitment Percentage, as applicable, of any
payment under any Letter of Credit on the date required, as specified above, nor
increase the obligation of such other Domestic Lender or Canadian Lender.
Whenever any Domestic Lender or Canadian Lender, as applicable, has made
payments to the Issuing Bank in respect of any reimbursement obligation for any
Letter of Credit, such Domestic Lender or Canadian Lender shall be entitled to
share ratably, based on its Domestic Commitment Percentage or Canadian
Commitment Percentage, as applicable, in all payments and collections thereafter
received on account of such reimbursement obligation.
(h) Whenever the Borrowers desire that the Issuing Bank issue a
Letter of Credit (or the amendment, renewal or extension of an outstanding
Letter of Credit), the Lead Borrower or the Canadian Borrower, as applicable,
shall submit a letter of credit application or otherwise provide notice to the
Issuing Bank by electronic transmission pursuant to the Online Services
Agreement or, if the Online Services Agreement is not then in effect, by written
(including telegraphic, telex, facsimile or cable communication) notice
specifying the date on which the proposed Letter of Credit is to be issued,
amended, renewed or extended (which shall be a Business Day), the stated amount
of the Letter of Credit so requested, the expiration date of such Letter of
Credit, the name and address of the beneficiary thereof, and the provisions
thereof. If requested by the Issuing Bank, the Borrowers shall also submit a
letter of credit application (confirming any application submitted pursuant to
the first sentence of this clause (h)) on the Issuing Bank's standard form in
connection with any request for the issuance, amendment, renewal or extension of
a Letter of Credit.
(i) The obligations of the Borrowers to reimburse the Issuing
Bank for any L/C Disbursement shall be unconditional and irrevocable and shall
be paid strictly in accordance with the terms of this Agreement under all
circumstances, including, without limitation: (i) any lack of validity or
enforceability of any Letter of Credit; (ii) the existence of any claim, setoff,
defense or other right which the Borrowers may have at any time against a
beneficiary of any Letter of Credit or against the Issuing Bank or any of the
Lenders, whether in connection with
41
this Agreement, the transactions contemplated herein or any unrelated
transaction; (iii) any draft, demand, certificate or other document presented
under any 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; (iv) payment by the Issuing Bank of any Letter of Credit against
presentation of a demand, draft or certificate or other document which does not
comply with the terms of such Letter of Credit; (v) any other circumstance or
happening whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, the Borrowers' obligations
hereunder; or (vi) the fact that any Event of Default shall have occurred and be
continuing. None of the Administrative Agent, the Lenders, the Issuing Bank or
any of their Affiliates shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank, provided that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Borrowers to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrowers to the extent permitted by Applicable Law) suffered by
the Borrowers that are caused by the Issuing Bank's failure to exercise care
when determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence, bad faith or willful misconduct on the part
of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care in each
such determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented
that appear on their face to be in compliance with the terms of a Letter of
Credit, the Issuing Bank may, in its sole discretion, either accept and make
payment upon such documents without responsibility for further investigation,
regardless of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict compliance
with the terms of such Letter of Credit.
(j) If any Event of Default shall occur and be continuing, on
the Business Day that the Borrowers receive notice from the Administrative Agent
or the Canadian Agent, as applicable, or the Required Lenders demanding the
deposit of cash collateral pursuant to this paragraph, the Borrowers shall
deposit in the applicable Cash Collateral Account an amount in cash equal to
103% of the Letter of Credit Outstandings as of such date plus any accrued and
unpaid interest thereon. Each such deposit shall be held by the Collateral Agent
as collateral for the payment and performance of the Obligations and the Other
Liabilities as long as such Event of Default is continuing; at such time as the
Event of Default is no longer continuing, and as long as no Cash Dominion Event
then exists, the Administrative Agent or the Canadian Agent, as applicable,
shall release the cash collateral (to the extent not previously utilized to
reimburse any drawing under a Letter of Credit) to the Borrowers. The Collateral
Agent or the Canadian Agent,
42
as applicable, shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such Cash Collateral Account. Other than any
interest earned on the investment of such deposits, which investments shall be
made at the option and sole discretion of the Collateral Agent at the request of
the Lead Borrower and at the Borrowers' risk and expense, such deposits shall
not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such Cash Collateral Account shall be
applied by the Collateral Agent to reimburse the Issuing Bank for payments on
account of drawings under Letters of Credit for which it has not been reimbursed
and, to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrowers for the Letter of Credit Outstandings
at such time or, if the Loans have matured or the maturity of the Loans has been
accelerated, be applied to satisfy other Obligations and the Other Liabilities.
(k) Notwithstanding anything to the contrary contained herein,
with respect to the Canadian Borrower only, if the Issuing Bank for any Canadian
Letter of Credit is not the Canadian Agent, (i) the Canadian Borrower authorizes
the Canadian Agent to arrange for the issuance of Canadian Letters of Credit
from such Issuing Bank and to pay and indemnify (the "L/C Credit Support") such
Issuing Bank all charges in connection with the issuance, negotiation,
settlement, amendment and processing of each such Canadian Letter of Credit; and
Canadian Borrower agrees to pay and indemnify the Canadian Agent for and in
respect of the L/C Credit Support and agrees that such obligation to pay and
indemnify shall be deemed Canadian Liabilities, (ii) any notices, requests or
applications under Section 2.07 shall contemporaneously be delivered to both the
Issuing Bank and the Canadian Agent, (iii) drafts drawn under any Letters of
Credit as provided in Section 2.07(d) and L/C Disbursements as provided in
Section 2.07(e) shall immediately and on the same Business Day be reimbursed by
the Canadian Agent, and all interest accruing or payable pursuant to Section
2.07(e) or Section 2.07(g) shall be for the account of the Canadian Agent and
not the Issuing Bank, and (iv) the Canadian Borrower's reimbursement obligation
under Section 2.07(d), Section 2.07(e) and/or Section 2.07(g) shall be due to
the Canadian Agent and the Lenders shall make available to the Canadian Agent
(for its own account) the amount of its payment provided for in Section 2.07(g).
Section 2.08. Settlements Amongst Lenders
(a) Each Swingline Lender may (but shall not be obligated to),
at any time, on behalf of the Domestic Borrowers or the Canadian Borrower, as
applicable (which hereby authorize the Swingline Lenders to act in their behalf
in that regard) request the Administrative Agent or the Canadian Agent, as
applicable, to cause the Domestic Lenders and the Canadian Lenders, as
applicable, to make a Revolving Loan (which shall be a Prime Rate Loan) in an
amount equal to such Lender's Domestic Commitment Percentage or Canadian
Commitment Percentage of the outstanding amount of Swingline Loans made in
accordance with Section 2.06, which request may be made regardless of whether
the conditions set forth in Article IV have been satisfied. Upon such request,
each Domestic Lender or Canadian Lender, as applicable, shall make available to
the Administrative Agent or the Canadian Agent, as applicable, the proceeds of
such Revolving Loan for the account of the applicable Swingline Lender. If the
43
Swingline Lender requires a Revolving Loan to be made by the Domestic Lenders or
the Canadian Lenders, as applicable, and the request therefor is received prior
to 12:00 Noon, Boston time, on a Business Day, such transfers shall be made in
immediately available funds no later than 3:00 p.m., Boston time, that day; and,
if the request therefor is received after 12:00 Noon, Boston time, then no later
than 3:00 p.m., Boston time, on the next Business Day. The obligation of each
such Lender to transfer such funds is irrevocable, unconditional and without
recourse to or warranty by the Administrative Agent or the Canadian Agent, as
applicable, or any Swingline Lender. If and to the extent any Domestic Lender or
Canadian Lender, as applicable, shall not have so made its transfer to the
Administrative Agent or the Canadian Agent, as applicable, such Domestic Lender
or Canadian Lender agrees to pay to the Administrative Agent or the Canadian
Agent, as applicable, forthwith on demand such amount, together with interest
thereon, for each day from such date until the date such amount is paid to the
Administrative Agent or the Canadian Agent, as applicable at the Federal Funds
Effective Rate.
(b) The amount of each Lender's Domestic Commitment Percentage
or Canadian Commitment Percentage, as applicable, of outstanding Revolving Loans
shall be computed weekly (or more frequently in the Administrative Agent's, or
the Canadian Agent's, as applicable, discretion) and shall be adjusted upward or
downward based on all Revolving Loans and repayments of Revolving Loans received
by the Administrative Agent or the Canadian Agent, as applicable, as of 3:00
p.m., Boston time, on the first Business Day following the end of the period
specified by the Administrative Agent or the Canadian Agent, as applicable (such
date, the "Settlement Date").
(c) The Administrative Agent or the Canadian Agent, as
applicable, shall deliver to each of the Domestic Lenders or Canadian Lenders,
as applicable, promptly after the Settlement Date a summary statement of the
amount of outstanding Revolving Loans for the period and the amount of
repayments received for the period. As reflected on the summary statement: (x)
the Administrative Agent or the Canadian Agent, as applicable, shall transfer to
each Domestic Lender and Canadian Lender its applicable Domestic Commitment
Percentage or Canadian Commitment Percentage, as applicable, of repayments, and
(y) each Domestic Lender and Canadian Lender shall transfer to the
Administrative Agent or the Canadian Agent, as applicable, (as provided below),
or the Administrative Agent or the Canadian Agent, as applicable, shall transfer
to each Domestic Lender or Canadian Lender, as applicable, such amounts as are
necessary to insure that, after giving effect to all such transfers, the amount
of Revolving Loans made by each Domestic Lender and Canadian Lender with respect
to Revolving Loans to the Domestic Borrowers and the Canadian Borrower,
respectively, shall be equal to such Lender's applicable Domestic Commitment
Percentage or Canadian Commitment Percentage, as applicable, of Revolving Loans
outstanding as of such Settlement Date. If the summary statement requires
transfers to be made to the Administrative Agent or the Canadian Agent, as
applicable, by the Domestic Lenders or the Canadian Lenders, as applicable, and
is received prior to 12:00 Noon, Boston time, on a Business Day, such transfers
shall be made in immediately available funds no later than 3:00 p.m., Boston
time, that day; and, if received after 12:00 Noon, Boston time, then no later
than 3:00 p.m., Boston time, on the next Business Day.
44
The obligation of each Domestic Lender and each Canadian Lender to transfer such
funds is irrevocable, unconditional and without recourse to or warranty by the
Administrative Agent or the Canadian Agent, as applicable. If and to the extent
any Domestic Lender or Canadian Lender shall not have so made its transfer to
the Administrative Agent or the Canadian Agent, as applicable, such Domestic
Lender or Canadian Lender agrees to pay to the Administrative Agent or the
Canadian Agent, as applicable, forthwith on demand such amount, together with
interest thereon, for each day from such date until the date such amount is paid
to the Administrative Agent or the Canadian Agent, as applicable, at the Federal
Funds Effective Rate.
Section 2.09. Notes; Repayment of Loans.
(a) The Loans made by each Domestic Lender and each Canadian
Lender (and to the Swingline Lender, with respect to Swingline Loans) shall be
evidenced by a Note duly executed on behalf of the Domestic Borrowers and the
Canadian Borrower, respectively, dated the Closing Date, in substantially the
form attached hereto as Exhibit X-0, X-0, X-0 or B-4, as applicable, payable to
the order of each such Domestic Lender or Canadian Lender (or each Swingline
Lender, as applicable) in an aggregate principal amount equal to such Domestic
Lender's or Canadian Lender's Domestic Commitment or Canadian Commitment, as
applicable (or, in the case of the Notes evidencing the Swingline Loans (i) to
the Domestic Borrowers, $60,000,000 and (ii) to the Canadian Borrower,
$20,000,000).
(b) The outstanding principal balance of all Swingline Loans
shall be repaid on the earlier of the Termination Date or, on the date otherwise
requested by the Swingline Lender in accordance with the provisions of Section
2.08(a). The outstanding principal balance of all other Obligations shall be
payable on the Termination Date (subject to earlier repayment as provided
below). Each Note shall bear interest from the date thereof on the outstanding
principal balance thereof as set forth in this Article II. Each Domestic Lender
is hereby authorized by the Domestic Borrowers, and each Canadian Lender is
hereby authorized by the Canadian Borrower, to endorse on a schedule attached to
each Note delivered to such Domestic Lender or Canadian Lender (or on a
continuation of such schedule attached to such Note and made a part thereof), or
otherwise to record in such Domestic Lender's or Canadian Lender's internal
records, an appropriate notation evidencing the date and amount of each Loan
from such Domestic Lender or Canadian Lender, each payment and prepayment of
principal of any such Loan, each payment of interest on any such Loan and the
other information provided for on such schedule; provided, however, that the
failure of any Domestic Lender or Canadian Lender to make such a notation or any
error therein shall not affect the obligation of the Domestic Borrowers or the
Canadian Borrower, as applicable, to repay the Loans made by such Domestic
Lender or Canadian Lender in accordance with the terms of this Agreement and the
applicable Notes.
(c) Upon receipt of an affidavit of a Lender as to the loss,
theft, destruction or mutilation of such Lender's Note and upon cancellation of
such Note, the Borrowers will issue, in lieu thereof, a replacement Note in
favor of such Lender, in the same principal amount thereof and otherwise of like
tenor.
45
Section 2.10. Extension of Maturity Date.
(a) The Lead Borrower may elect to extend the Maturity Date
from the Initial Maturity Date to the Extended Maturity Date, subject to
satisfaction of the following terms and conditions as determined by the
Administrative Agent in its sole discretion, and, subject further to provisions
of paragraph (b) below, the consent of all of the Lenders:
(i) The Lead Borrower notifies the Administrative Agent
in writing no earlier than March 29, 2005 and no later than May
13, 2005 of the Lead Borrower's election to request the
extension (the "Extension Request");
(ii) On the date of each of the Extension Request and
on the Initial Maturity Date, no Default or Event of Default
then exists;
(iii) The Borrowers shall have executed and delivered
to the Administrative Agent such agreements and documents as
the Administrative Agent may reasonably require incident to the
extension; and
(iv) The Borrowers shall have reimbursed the
Administrative Agent and the Lenders for all reasonable costs
and expenses incurred by the Administrative Agent and the
Lenders in connection with such Extension Request.
(b) Within forty-five (45) Business Days following receipt by
the Administrative Agent of the Lead Borrower's Extension Request, the
Administrative Agent shall notify the Lead Borrower (the "Extension Request
Response") as to which Lenders have consented to the Extension Request. If not
all of the Lenders have consented to the Extension Request (each such Lender, a
"Non-Consenting Lender"), the Borrowers may exercise any of the following
options, by notifying the Administrative Agent within ten (10) days from the
date of the Extension Request Response:
(A) The Borrowers may extend the Maturity Date,
provided, however, the Total Commitments in effect as
of the Initial Maturity Date shall be reduced by the
amount of the Commitments of the Non-Consenting Lenders
and the Domestic Borrowers and the Canadian Borrower
shall each pay each of their Non-Consenting Lenders on
the Initial Maturity Date an amount equal to the
outstanding principal of their Loans and participations
in unreimbursed drawings under Letters of Credit and
Swingline Loans, accrued interest thereon, accrued fees
and all other amounts payable to them hereunder,
provided further, however, the Initial Maturity Date
may not be so extended if, as a result of such
reduction the Total Commitments are less than
$400,000,000; or
46
(B) The Borrowers may, at their sole expense and
effort, upon notice to such Non-Consenting Lenders and
the Administrative Agent, require any such
Non-Consenting Lender to assign and delegate, without
recourse (in accordance with and subject to the
restrictions contained in Section 9.05), all its
interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender
accepts such assignment) and which shall consent to the
Extension Request, provided that except in the case of
an assignment to another Lender, the Borrowers shall
have received the prior written consent of the
Administrative Agent, the Issuing Bank and Swingline
Lender, which consent shall not unreasonably be
withheld; or
(C) The Borrowers may withdraw such Extension
Request by written notice to the Administrative Agent,
and thereupon all Obligations shall become due and
payable in full on the Initial Maturity Date.
(c) If the conditions to the Extension Request have been
satisfied and all of the Lenders have consented to the Extension Request, the
Initial Maturity Date shall be extended until the Extended Maturity Date;
provided that the Initial Maturity Date shall not be extended pursuant to the
provisions above, unless and until the Administrative Agent shall have notified
the Lead Borrower in writing that all of the conditions set forth herein have
been satisfied and that the Extended Maturity Date is in effect.
(d) Nothing contained in this Section 2.10 shall be deemed to
modify or abrogate the Commitments and any other obligations of any
Non-Consenting Lender under this Agreement through the Initial Maturity Date.
Without limiting the foregoing, each such Lender shall remain obligated to make
Revolving Loans and to purchase participations in Swingline Loans and Letter of
Credit Outstandings through the Initial Maturity Date in accordance with the
terms of this Agreement.
Section 2.11. Interest on Loans.
(a) Subject to Section 2.12, each Prime Rate Loan shall bear
interest (computed on the basis of the actual number of days elapsed over a year
of 365 or 366 days, as applicable) at a rate per annum that shall be equal to
the then Prime Rate or Canadian Prime Rate, as applicable, plus the Applicable
Margin for Prime Rate Loans.
(b) Subject to Section 2.12, each LIBO Loan shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 360
days) at a rate per annum equal, during each Interest Period applicable thereto,
to the Adjusted LIBO Rate for such Interest Period, plus the Applicable Margin
for LIBO Loans.
(c) Subject to Section 2.12, each BA Equivalent Loan shall bear
interest (computed on the basis of the actual number of days elapsed over a year
of 365 or 366 days, as
47
applicable) at a rate per annum equal to the BA Rate, plus the Applicable Margin
for BA Equivalent Loans.
(d) Accrued interest on all Loans shall be payable in arrears
on each Interest Payment Date applicable thereto, on the Termination Date, after
the Termination Date on demand and (with respect to LIBO Loans and BA Equivalent
Loans) upon any repayment or prepayment thereof (on the amount prepaid).
For the purposes of the Interest Act (Canada) and disclosure thereunder,
whenever interest to be paid hereunder is to be calculated on the basis of a
year of 360 days or any other period of time that is less than a calendar year,
the yearly rate of interest to which the rate determined pursuant to such
calculation is equivalent is the rate so determined multiplied by the actual
number of days in the calendar year in which the same is to be ascertained and
divided by either 360 or such other period of time, as the case may be.
Calculations of interest shall be made using the nominal rate method of
calculation, and will not be calculated using the effective rate method of
calculation or any other basis that gives effect to the principle of deemed
reinvestment of interest.
Section 2.12. Default Interest.
Effective upon the occurrence of any Event of Default and at all times
thereafter while such Event of Default is continuing, at the option of the
Administrative Agent or upon the direction of the Required Lenders, interest
shall accrue on all outstanding Loans (including Swingline Loans) (after as well
as before judgment, as and to the extent permitted by law) at a rate per annum
(computed on the basis of the actual number of days elapsed over a year of 360
days) equal to the rate (including the Applicable Margin for Loans) in effect
from time to time plus 2.00% per annum, and such interest shall be payable on
demand.
Section 2.13. Certain Fees.
The Borrowers shall pay to the Administrative Agent, for the account of the
Administrative Agent, the fees set forth in the Fee Letter as and when payment
of such fees is due as therein set forth.
Section 2.14. Unused Commitment Fee.
(a) The Domestic Borrowers shall pay to the Administrative
Agent for the account of the Domestic Lenders, a commitment fee (the "Commitment
Fee") equal to [CONFIDENTIAL]*% per annum (on the basis of actual days elapsed
in a year of 365 or 366
*Confidential treatment has been requested for the redacted portions of this
agreement pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended. The confidential, redacted portions has been file separately with the
United States Securities and Exchange Commission.
48
days, as applicable) of the average daily balance of the Unused Commitment for
each day commencing on and including the Closing Date and ending on but
excluding the Termination Date. The Commitment Fee so accrued in any calendar
quarter shall be payable on the first Business Day of the immediately succeeding
calendar quarter, except that all Commitment Fees so accrued as of the
Termination Date shall be payable on the Termination Date.
(b) The Canadian Borrower shall pay to the Canadian Agent for
the account of the Lenders holding a Canadian Commitment, a commitment fee (the
"Canadian Commitment Fee") equal to [CONFIDENTIAL]*% per annum (on the basis of
actual days elapsed in a year of 365 or 366 days, as applicable) of the average
daily balance of the Unused Canadian Commitment for each day commencing on and
including the Closing Date and ending on but excluding the Termination Date. The
Canadian Commitment Fee so accrued in any calendar quarter shall be payable on
the first Business Day of the immediately succeeding calendar quarter, except
that all Canadian Commitment Fees so accrued as of the Termination Date shall be
payable on the Termination Date.
Section 2.15. Letter of Credit Fees.
(a) The Domestic Borrowers shall pay the Administrative Agent,
and the Canadian Borrower shall pay to the Canadian Agent, as applicable, for
the account of the Domestic Lenders or the Canadian Lenders, as applicable, for
each calendar quarter, on the first Business Day of the immediately succeeding
calendar quarter, a fee (each, a "Letter of Credit Fee") equal to the following
per annum percentages of the average face amount of the following categories of
Letters of Credit outstanding during the subject quarter:
(i) Standby Letters of Credit issued for the Domestic
Borrowers: At the then Applicable Margin per annum for LIBO
Loans.
(ii) Commercial Letters of Credit issued for the
Domestic Borrowers: Fifty percent (50%) of the Applicable
Margin per annum for LIBO Loans.
(iii) Standby Letters of Credit issued for the Canadian
Borrower: At the then Applicable Margin per annum for BA
Equivalent Loans.
(iv) Commercial Letters of Credit issued for the
Canadian Borrower: Fifty percent (50%) of the Applicable Margin
per annum for BA Equivalent Loans.
(v) After the occurrence and during the continuance of
an Event of Default, at the option of the Administrative Agent
or the Canadian Agent, as applicable, or upon the direction of
the Required Lenders, the Letter of Credit Fee set forth in
clauses (i) through (iv) above, shall be increased by an amount
equal to two percent (2%) per annum.
49
(b) The Domestic Borrowers or Canadian Borrower, as applicable,
shall pay to the applicable Issuing Bank, in addition to all Letter of Credit
Fees otherwise provided for hereunder, other charges in connection with the
issuance, negotiation, settlement, amendment and processing of each Letter of
Credit issued by the Issuing Bank as are customarily imposed by the Issuing Bank
except as the Issuing Bank and the Lead Borrower or Canadian Borrower, as
applicable, may from time to time otherwise agree.
(c) All Letter of Credit Fees shall be calculated on the basis
of a 365 or 366 day year, as applicable, and actual days elapsed.
Section 2.16. Nature of Fees.
All fees shall be paid on the dates due, in immediately available funds, to
the Administrative Agent, or the Canadian Agent, as applicable, for the
respective accounts of the Administrative Agent, or the Canadian Agent, as
applicable, the Issuing Bank, and the Lenders, as provided herein. All fees
shall be fully earned on the date when due and shall not be refundable under any
circumstances, absent manifest error. For greater certainty, the Canadian
Borrower shall not be liable for any fees which form part of the Obligations
unless they are Canadian Liabilities (including as provided in Section 2.14(b),
Section 2.13, or Section 9.03).
Section 2.17. Termination or Reduction of Commitments.
(a) Upon at least two (2) Business Days' prior written notice
to the Administrative Agent, the Lead Borrower may at any time in whole
permanently terminate, or from time to time in part permanently reduce, the
Domestic Commitments. Each such reduction shall be in the principal amount of
$10,000,000 or any integral multiple thereof. Each such reduction or termination
shall (i) be applied ratably to the Domestic Commitments of each Lender and (ii)
be irrevocable when given. At the effective time of each such reduction or
termination, the Domestic Borrowers shall pay to the Administrative Agent for
application as provided herein (i) all Commitment Fees accrued on the amount of
the Domestic Commitments so terminated or reduced through the date thereof, and
(ii) any amount by which the Credit Extensions outstanding on such date exceed
the amount to which the Domestic Commitments are to be reduced effective on such
date (and, if, after giving effect to the prepayment in full of all outstanding
Loans such Credit Extensions have not been so reduced, deposit cash into the
applicable Cash Collateral Account in an amount equal to 103% of the Letters of
Credit Outstanding to the extent necessary in order that the Credit Extensions
do not exceed the Domestic Commitments as so reduced), in each case pro rata
based on the amount prepaid.
(b) Upon at least two (2) Business Days' prior written notice to the
Canadian Agent, the Canadian Borrower may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the Canadian
Commitments. Each such reduction shall be in the principal amount of $10,000,000
or any integral multiple thereof. Each such reduction or termination shall (i)
be applied ratably to the Canadian Commitments of each Lender and (ii) be
50
irrevocable when given. At the effective time of each such reduction or
termination, the Canadian Borrower shall pay to the Canadian Agent for
application as provided herein (i) all Canadian Commitment Fees accrued on the
amount of the Canadian Commitments so terminated or reduced through the date
thereof, and (ii) any amount by which the Credit Extensions to the Canadian
Borrower outstanding on such date exceed the amount to which the Canadian
Commitments are to be reduced effective on such date (and, if, after giving
effect to the prepayment in full of all outstanding Loans to the Canadian
Borrower such Credit Extensions have not been so reduced, deposit cash into the
applicable Cash Collateral Account in an amount equal to 103% of the Letters of
Credit Outstanding of the Canadian Borrower to the extent necessary in order
that the Credit Extensions to the Canadian Borrower do not exceed the Canadian
Commitments as so reduced), in each case pro rata based on the amount prepaid.
Section 2.18. Alternate Rate of Interest.
If prior to the commencement of any Interest Period for a LIBO Borrowing or
BA Equivalent Loan Borrowing:
(a) the Administrative Agent determines (which determination
shall be presumptively correct absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the BA
Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders
that the Adjusted LIBO Rate or the BA Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders of making or maintaining
their Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Domestic
Borrowers or the Canadian Borrower, as applicable, and the Domestic Lenders, in
the case of a requested LIBO Borrowing and the Canadian Lenders, in the case of
a requested BA Equivalent Loan Borrowing by telephone or telecopy as promptly as
practicable thereafter (but in any event, within two (2) Business Days) and,
until the Administrative Agent notifies the Domestic Borrowers or the Canadian
Borrower, as applicable and the Domestic Lenders or the Canadian Lenders, as
applicable, that the circumstances giving rise to such notice no longer exist,
(i) any Borrowing Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a LIBO Borrowing or a BA Equivalent Loan
Borrowing, as applicable, shall be ineffective and (ii) if any Borrowing Request
requests a LIBO Borrowing or a BA Equivalent Loan Borrowing, as applicable, such
Borrowing shall be made as a Borrowing of Prime Rate Loans.
Section 2.19. Conversion and Continuation of Loans.
(a) The Lead Borrower on behalf of the Borrowers shall have the
right at any time,
51
(i) on three (3) Business Days' prior irrevocable
notice to the Administrative Agent (which notice, to be
effective, must be received by the Administrative Agent not
later than 11:00 a.m., Boston time, on the third Business Day
preceding the date of any conversion), (x) to convert any
outstanding Borrowings of Prime Rate Loans (but in no event
Swingline Loans) to Borrowings of LIBO Loans in the case of the
Domestic Borrowers and to Borrowings of BA Equivalent Loans in
the case of the Canadian Borrower, or (y) to continue an
outstanding Borrowing of LIBO Loans or BA Equivalent Loans for
an additional Interest Period,
(ii) on one Business Day's prior irrevocable notice to
the Administrative Agent (which notice, to be effective, must
be received by the Administrative Agent not later than 11:00
a.m., Boston time, on the first Business Day preceding the date
of any conversion), to convert any outstanding Borrowings by
the Domestic Borrowers of LIBO Loans to a Borrowing of dollar
denominated Prime Rate Loans, and to convert any outstanding
Borrowings of BA Equivalent Loans to a Borrowing of CD$
denominated Prime Rate Loans,
subject to the following:
(b) no Borrowing of Loans may be converted into, or continued
as, LIBO Loans or BA Equivalent Loans, at any time when an Event of Default has
occurred and is continuing;
(c) if less than a full Borrowing of Loans is converted, such
conversion shall be made pro rata among the Domestic Lenders and the Canadian
Lenders, as applicable, in accordance with the respective principal amounts of
the Loans comprising such Borrowing held by such Lenders immediately prior to
such refinancing;
(d) the aggregate principal amount of Loans being converted
into or continued as LIBO Loans shall be in an integral of $1,000,000 and at
least $5,000,000, and the aggregate principal amount of Loans being converted
into or continued as BA Equivalent Loans shall be in an integral of CD$1,000,000
and at least CD$5,000,000;
(e) each Domestic Lender shall effect each conversion by
applying the proceeds of its new LIBO Loan or dollar denominated Prime Rate
Loan, as the case may be, to its Loan being so converted and each Canadian
Lender shall effect each conversion by applying the proceeds of its new BA
Equivalent Loan or CD$ denominated Prime Rate Loan, as the case may be, to its
Loan being so converted;
(f) the Interest Period with respect to a Borrowing of LIBO
Loans or BA Equivalent Loans effected by a conversion or in respect to the
Borrowing of LIBO Loans or BA Equivalent Loans being continued as LIBO Loans or
BA Equivalent Loans, respectively, shall
52
commence on the date of conversion or the expiration of the current Interest
Period applicable to such continuing Borrowing, as the case may be;
(g) a Borrowing of LIBO Loans or BA Equivalent Loans may be
converted only on the last day of an Interest Period applicable thereto;
(h) each request for a conversion or continuation of a
Borrowing of LIBO Loans or BA Equivalent Loans which fails to state an
applicable Interest Period shall be deemed to be a request for an Interest
Period of one month; and
(i) no more than ten (10) Borrowings of LIBO Loans and ten (10)
Borrowings of BA Equivalent Loans may be outstanding at any time.
If the Lead Borrower does not give notice to convert any Borrowing of Prime Rate
Loans, or does not give notice to continue, or does not have the right to
continue, any Borrowing as LIBO Loans or BA Equivalent Loans, in each case as
provided above, such Borrowing shall automatically be converted to, or continued
as, as applicable, in the case of the Domestic Borrowers, a Borrowing of dollar
denominated Prime Rate Loans and, in the case of the Canadian Borrower, a
Borrowing of CD$ denominated Prime Rate Loans, at the expiration of the then
current Interest Period. The Administrative Agent shall, after it receives
notice from the Lead Borrower, promptly give each Lender notice of any
conversion, in whole or part, of any Loan made by such Lender.
Section 2.20. Mandatory Prepayment; Cash Collateral; Commitment
Termination.
The outstanding Obligations shall be subject to mandatory prepayment as
follows:
(a) (i) If at any time the amount of the Credit Extensions
exceeds the lower of (i) the then amount of the Total Commitments, and (ii) the
then amount of the Borrowing Base, including, without limitation, as a result of
one or more fluctuations in the exchange rate of the CD$ against the dollar, the
Borrowers will immediately upon notice from the Administrative Agent (A) prepay
the Loans in an amount necessary to eliminate such excess, and (B) if, after
giving effect to the prepayment in full of all outstanding Loans such excess has
not been eliminated, deposit cash into the applicable Cash Collateral Account in
an amount equal to 103% of the Letters of Credit Outstanding (which shall be
released to the Domestic Borrowers from such Cash Collateral Account, to the
extent not previously utilized to reimburse any drawing under a Letter of
Credit, at such time that the amount of the Credit Extensions, without giving
effect to amounts deposited in such Cash Collateral Account, do not exceed the
lower of the then amount of the Total Commitments, and the then amount of the
Borrowing Base, but only if no Cash Dominion Event then exists).
(ii) If at any time the amount of the Credit Extensions to the Canadian
Borrower exceeds the lower of (i) the Canadian Total Commitments, and (ii) the
then amount of the Borrowing Base minus Credit Extensions then outstanding in
favor of the Domestic Borrowers,
53
including, without limitation, as a result of one or more fluctuations in the
exchange rate of the CD$ against the dollar, the Borrowers will immediately upon
notice from the Administrative Agent (A) prepay the Loans in an amount necessary
to eliminate such excess, and (B) if, after giving effect to the prepayment in
full of all outstanding Loans such excess has not been eliminated, deposit cash
into the applicable Cash Collateral Account in an amount equal to 103% of the
Letters of Credit Outstanding (which shall be released to the Canadian Borrower
from such Cash Collateral Account, to the extent not previously utilized to
reimburse any drawing under a Letter of Credit, at such time that the amount of
the Credit Extensions to the Canadian Borrower, without giving effect to amounts
deposited in such Cash Collateral Account, do not exceed the lower of Canadian
Availability, and the then amount of the Borrowing Base minus Credit Extensions
then outstanding in favor of the Domestic Borrowers, but only if no Cash
Dominion Event then exists).
(iii) If at any time the amount of the Credit Extensions to the Domestic
Borrowers exceeds the lower of (i) the then amount of the Domestic Total
Commitments, and (ii) the then amount of the Borrowing Base minus Credit
Extensions then outstanding in favor of the Canadian Borrower, including,
without limitation, as a result of one or more fluctuations in the exchange rate
of the CD$ against the dollar, the Domestic Borrowers will immediately upon
notice from the Administrative Agent (A) prepay the Loans in an amount necessary
to eliminate such excess, and (B) if, after giving effect to the prepayment in
full of all outstanding Loans such excess has not been eliminated, deposit cash
into the applicable Cash Collateral Account in an amount equal to 103% of the
Letters of Credit Outstanding (which shall be released to the Domestic Borrowers
from such Cash Collateral Account, to the extent not previously utilized to
reimburse any drawing under a Letter of Credit, at such time that the amount of
the Credit Extensions to the Domestic Borrowers, without giving effect to
amounts deposited in such Cash Collateral Account, do not exceed the lower of
the then amount of the Total Commitments, and the then amount of the Borrowing
Base minus Credit Extensions then outstanding in favor of the Canadian Borrower,
but only if no Cash Dominion Event then exists).
Without in any way limiting the foregoing provisions, the Administrative
Agent shall, weekly or more frequently in the Administrative Agent's sole
discretion, make the necessary exchange rate calculations to determine whether
any such excess exists on such date.
(b) To the extent required pursuant to Section 2.23 and/or
Section 2.24, the Revolving Loans shall be repaid daily in accordance with the
provisions of said Section 2.23 and Section 2.24.
(c) Subject to the foregoing, outstanding Prime Rate Loans
shall be prepaid by the Domestic Borrowers before outstanding LIBO Loans are
prepaid and outstanding Prime Rate Loans of the Canadian Borrower shall be
prepaid before outstanding BA Equivalent Loans are prepaid. Each partial
prepayment of LIBO Loans shall be in an integral multiple of $5,000,000. Each
partial prepayment of BA Equivalent Loans shall be in an integral multiple of
CD$1,000,000. No prepayment of LIBO Loans or BA Equivalent Loans shall be
permitted
54
pursuant to this Section 2.20 other than on the last day of an Interest Period
applicable thereto, unless the applicable Borrowers simultaneously reimburse the
applicable Lenders for all Breakage Costs associated therewith. In order to
avoid such Breakage Costs, as long as no Event of Default has occurred and is
continuing, at the request of the Lead Borrower, the Administrative Agent shall
hold all amounts required to be applied to LIBO Loans or BA Equivalent Loans, as
applicable, in the applicable Cash Collateral Account and will apply such funds
to the applicable LIBO Loans or BA Equivalent Loans at the end of the then
pending Interest Period therefor (provided that the foregoing shall in no way
limit or restrict the Agents' rights upon the subsequent occurrence of an Event
of Default). No partial prepayment of a Borrowing of LIBO Loans or BA Equivalent
Loans shall result in the aggregate principal amount of the LIBO Loans remaining
outstanding pursuant to such Borrowing being less than $5,000,000 or the
aggregate principal amount of the BA Equivalent Loans remaining outstanding
pursuant to such Borrowing being less than CD$1,000,000 (unless all such
outstanding LIBO Loans or BA Equivalent Loans are being prepaid in full). Any
prepayment of the Revolving Loans shall not permanently reduce the Commitments.
(d) All amounts required to be applied to all Loans hereunder
(other than Swingline Loans) shall be applied ratably in accordance with each
Domestic Lender's Domestic Commitment Percentage or Canadian Lender's Canadian
Commitment Percentage, as applicable.
(e) Upon the Termination Date, the Commitments and the credit
facility provided hereunder shall be terminated in full and the Domestic
Borrowers shall pay, in full and in cash, all outstanding Loans and all other
outstanding Obligations owing by them and the Canadian Borrower shall pay in
full and in cash, all outstanding Loans to it and all Canadian Liabilities.
(f) All Obligations shall be payable to the Administrative
Agent or the Canadian Agent, as applicable, in the currency in which they are
denominated.
Section 2.21. Optional Prepayment of Loans; Reimbursement of Lenders.
(a) The Borrowers shall have the right at any time and from
time to time to prepay outstanding Loans in whole or in part, (x) with respect
to LIBO Loans or BA Equivalent Loans, upon at least two Business Days' prior
written, telex or facsimile notice to the Administrative Agent prior to 11:00
a.m., Boston time, and (y) with respect to Prime Rate Loans, on the same
Business Day if written, telex or facsimile notice is received by the
Administrative Agent or the Canadian Agent, as applicable, prior to 1:00 p.m.,
Boston time, subject to the following limitations:
(i) Subject to Section 2.20, all prepayments shall be
paid to the Administrative Agent or the Canadian Agent, as
applicable, for application, first, to the prepayment of
outstanding Swingline Loans, second, to the prepayment of other
outstanding Loans ratably in accordance with each Lender's
Domestic
55
Commitment Percentage or Canadian Commitment Percentage, as
applicable, and third, to the funding of a cash collateral
deposit in the applicable Cash Collateral Account in an amount
equal to 103% of all Letter of Credit Outstandings.
(ii) Subject to the foregoing, outstanding Prime Rate
Loans of the Domestic Borrowers shall be prepaid before
outstanding LIBO Loans are prepaid and outstanding Prime Rate
Loans of the Canadian Borrower shall be prepaid before
outstanding BA Equivalent Loans are prepaid. Each partial
prepayment of LIBO Loans shall be in an integral multiple of
$5,000,000. Each partial prepayment of BA Equivalent Loans
shall be in an integral multiple of CD$1,000,000. No prepayment
of LIBO Loans or BA Equivalent Loans shall be permitted
pursuant to this Section 2.21 other than on the last day of an
Interest Period applicable thereto, unless the applicable
Borrowers simultaneously reimburse the applicable Lenders for
all "Breakage Costs" (as defined below) associated therewith.
No partial prepayment of a Borrowing of LIBO Loans shall result
in the aggregate principal amount of the LIBO Loans remaining
outstanding pursuant to such Borrowing being less than
$5,000,000 (unless all such outstanding LIBO Loans are being
prepaid in full). No partial prepayment of a Borrowing of BA
Equivalent Loans shall result in the aggregate principal amount
of the BA Equivalent Loans remaining outstanding pursuant to
such Borrowing being less than CD$1,000,000 (unless all such
outstanding BA Equivalent Loans are being prepaid in full).
(iii) Each notice of prepayment shall specify the
prepayment date, the principal amount and Type of the Loans to
be prepaid and, in the case of LIBO Loans or BA Equivalent
Loans, the Borrowing or Borrowings pursuant to which such Loans
were made. Each notice of prepayment shall be irrevocable and
shall commit the Borrowers to prepay such Loan by the amount
and on the date stated therein. The Administrative Agent or the
Canadian Agent, as applicable, shall, promptly after receiving
notice from the Borrowers hereunder, notify each Lender of the
principal amount and Type of the Loans held by such Lender
which are to be prepaid, the prepayment date and the manner of
application of the prepayment.
(b) The Domestic Borrowers shall reimburse each Domestic Lender
and the Canadian Borrower shall reimburse each Canadian Lender on demand for any
loss incurred or to be incurred by the Domestic Lenders or the Canadian Lenders,
as applicable, in the reemployment of the funds released (i) resulting from any
prepayment (for any reason whatsoever, including, without limitation, conversion
to Prime Rate Loans or acceleration by virtue of, and after, the occurrence of
an Event of Default) of any LIBO Loan or BA Equivalent Loan required or
permitted under this Agreement, if such Loan is prepaid other than on the last
day of the Interest Period for such Loan or (ii) in the event that after the
Lead Borrower delivers a notice of borrowing under Section 2.04 in respect of
LIBO Loans or BA Equivalent Loans, such Loans are not borrowed on the first day
of the Interest Period specified in such notice of
56
borrowing for any reason. Such loss shall be the amount as reasonably determined
by such Lender as the excess, if any, of (A) the amount of interest which would
have accrued to such Lender on the amount so paid or not borrowed at a rate of
interest equal to the Adjusted LIBO Rate or the BA Equivalent Rate, as
applicable, for such Loan, for the period from the date of such payment or
failure to borrow to the last day (x) in the case of a payment or refinancing of
a LIBO Loan or a BA Equivalent Loan other than on the last day of the Interest
Period for such Loan, of the then current Interest Period for such Loan or (y)
in the case of such failure to borrow, of the Interest Period for such LIBO Loan
or BA Equivalent Loan which would have commenced on the date of such failure to
borrow, over (B) in the case of a LIBO Loan, the amount of interest which would
have accrued to such Lender on such amount by placing such amount on deposit for
a comparable period with leading banks in the London interbank market or, in the
case of a BA Equivalent Loan, the amount of interest which would have accrued to
such Lender on such amount by placing such amount on deposit for a comparable
period with The Toronto-Dominion Bank (collectively, "Breakage Costs"). Any
Lender demanding reimbursement for such loss shall deliver to the Borrowers from
time to time one or more certificates setting forth the amount of such loss as
determined by such Lender and setting forth in reasonable detail the manner in
which such amount was determined.
(c) In the event the Domestic Borrowers or the Canadian
Borrower, as applicable, fail to prepay any Loan on the date specified in any
prepayment notice delivered pursuant to Section 2.21(a), the Domestic Borrowers
or the Canadian Borrower, as applicable, on demand by any Lender shall pay to
the Administrative Agent or the Canadian Agent, as applicable, for the account
of such Lender any amounts required to compensate such Lender for any actual
loss incurred by such Lender as a result of such failure to prepay, including,
without limitation, any loss, cost or expenses incurred by reason of the
acquisition of deposits or other funds by such Lender to fulfill deposit
obligations incurred in anticipation of such prepayment. Any Lender demanding
such payment shall deliver to the Domestic Borrowers or the Canadian Borrower,
as applicable, from time to time one or more certificates setting forth the
amount of such loss as determined by such Lender and setting forth in reasonable
detail the manner in which such amount was determined.
(d) Whenever any partial prepayment of Loans are to be applied
to LIBO Loans or BA Equivalent Loans, such LIBO Loans or BA Equivalent Loans
shall be prepaid in the chronological order of their Interest Payment Dates.
Section 2.22. Maintenance of Loan Account; Statements of Account.
(a) The Administrative Agent or the Canadian Agent, as
applicable, shall maintain an account on its books in the name of the Borrowers
(the "Loan Account") which will reflect (i) all Loans and other advances made by
the Lenders to the Borrowers or for the Borrowers' account, (ii) all L/C
Disbursements, fees and interest that have become payable as herein set forth,
and (iii) any and all other monetary Obligations that have become payable.
57
(b) The Loan Account will be credited with all amounts received
by the Administrative Agent or the Canadian Agent, as applicable, from the
Borrowers, including all amounts received in the FRG Concentration Account from
the Blocked Account Banks, and the amounts so credited shall be applied as set
forth in Section 2.24(a) and (b). Within ten (10) Business Days after the end of
each month, the Administrative Agent or the Canadian Agent, as applicable, shall
send to the Domestic Borrowers or the Canadian Borrower, as applicable, a
statement accounting for the charges, loans, advances and other transactions
occurring among and between the Administrative Agent, or the Canadian Agent, as
applicable, the Lenders and the Borrowers during that month. The monthly
statements shall, absent manifest error, be presumptively correct.
Section 2.23. Cash Receipts.
(a) Annexed hereto as Schedule 2.23(a) is a list of all present
DDAs maintained by the Borrowers, which Schedule includes, with respect to each
depository (i) the name and address of that depository; (ii) the account
number(s) maintained with such depository; and (iii) to the extent known, a
contact person at such depository.
(b) Annexed hereto as Schedule 2.23(b) is a list describing all
arrangements to which any Borrower is a party with respect to the payment to any
Borrower of the proceeds of all credit card charges for sales by any Borrower.
(c) On or prior to the Closing Date, the Borrowers shall:
(i) deliver to the Administrative Agent or the Canadian
Agent, as applicable, notifications executed on behalf of the
Borrowers to each depository institution identified on Schedule
2.23(a) in form and substance reasonably satisfactory to the
Administrative Agent, or the Canadian Agent, as applicable, of
the Administrative Agent's or the Canadian Agent's, as
applicable, interest in such DDA (each, a "DDA Notification").
The DDA Notifications shall be held in escrow by the
Administrative Agent or the Canadian Agent, as applicable,
until the occurrence of a Cash Dominion Event, at which time
the Administrative Agent or the Canadian Agent, as applicable,
may, in its discretion, forward such DDA Notifications to the
applicable institutions,
(ii) have, in the case of the Domestic Borrowers,
entered into a Blocked Account Agreement with Wachovia with
respect to the Wachovia Concentration Account (Account
No.2055275431509) (the "Wachovia Concentration Account") in
form and substance reasonably satisfactory to the
Administrative Agent (the "Wachovia Blocked Account
Agreement"), and
(iii) deliver to the Administrative Agent an agreement
(the "Credit Card Agreements") executed on behalf of the
Borrowers with Fifth Third and
58
each of the Borrowers' other major credit card processors
(other than FNANB) in form and substance reasonably
satisfactory to the Administrative Agent.
(iv) have caused the Canadian Borrower to enter into a
Blocked Account Agreement with each of The Bank of Nova Scotia
and Royal Bank of Canada in form and substance reasonably
satisfactory to the Canadian Agent.
(d) The DDA Notifications and the Credit Card Agreements shall
require, after the occurrence and during the continuance of a Cash Dominion
Event, the sweep on each Business Day of all available cash receipts and other
proceeds from the sale or disposition of any Collateral, including, without
limitation, the proceeds of all credit card charges (all such cash receipts and
proceeds, "Cash Receipts"), (and with respect to institutions which maintain a
DDA, net of a minimum balance not to exceed $10,000) to (x) a concentration
account maintained by the Collateral Agent at Fleet (the "FRG Concentration
Account"), (y) the Wachovia Concentration Account, or (z) a Blocked Account, as
the Administrative Agent may direct, provided that amounts in DDAs established
by the Canadian Borrower and amounts due to the Canadian Borrower by credit card
processors shall be delivered only to a Blocked Account established by the
Canadian Borrower or as the Canadian Agent may otherwise direct.
(e) The Blocked Account Agreements shall require, after the
occurrence and during the continuance of a Cash Dominion Event, the sweep on
each Business Day of all Cash Receipts (net of a minimum balance not to exceed
$10,000) to the FRG Concentration Account or to such other account as the
Administrative Agent may direct, and with respect to the Canadian Borrower, to a
Blocked Account established by the Canadian Borrower or as the Canadian Agent
may otherwise direct.
(f) If at any time after the occurrence and during the
continuance of a Cash Dominion Event, any cash or cash equivalents owned by the
Borrowers and constituting proceeds of Collateral are deposited to any account
(other than a DDA for which a DDA Notification has been delivered), or held or
invested in any manner, otherwise than in a Blocked Account that is subject to a
Blocked Account Agreement as required herein, the Administrative Agent shall
require the Borrowers to close such account and have all funds therein
transferred to the FRG Concentration Account, the Wachovia Concentration
Account, or such other Blocked Account as the Administrative Agent may direct,
and with respect to the Canadian Borrower, to a Blocked Account established by
the Canadian Borrower or as the Canadian Agent may otherwise direct.
(g) The Borrowers may close DDAs or Blocked Accounts and/or
open new DDAs or Blocked Accounts, subject to the execution and delivery to the
Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA
Notifications or Blocked Account Agreements consistent with the provisions of
this Section 2.23. Unless consented to in writing by the Administrative Agent,
or the Canadian Agent, as applicable, the Borrowers may not enter into any
agreements with additional credit card processors unless contemporaneously
therewith,
59
a Credit Card Agreement, is executed and delivered to the Administrative Agent
or the Canadian Agent, as applicable.
(h) The FRG Concentration Account and the Blocked Accounts
established by the Canadian Borrower are and shall remain, under the sole
dominion and control of the Collateral Agent or the Canadian Agent, as
applicable. Each Borrower acknowledges and agrees that, subject to the
provisions of subparagraph (j) below and the next to last sentence of Section
2.24(a), (i) such Borrower has no right of withdrawal from the FRG Concentration
Account or the Blocked Accounts established by the Canadian Borrower, (ii) the
funds on deposit in the FRG Concentration Account shall continue to be
collateral security for all of the Obligations and Other Liabilities, (iii) the
funds on deposit in the Blocked Accounts established by the Canadian Borrower.
shall continue to be collateral security for all of the Canadian Liabilities and
(iv) the funds on deposit in the FRG Concentration Account and the Blocked
Accounts established by the Canadian Borrower shall be applied as provided in
Section 2.24(a).
(i) So long as no Cash Dominion Event has occurred and is
continuing, the Borrowers may direct, and shall have sole control over, the
manner of disposition of its funds in the DDA Accounts, the Blocked Accounts,
and the Wachovia Concentration Account.
(i) After the occurrence and during the continuation of
a Cash Dominion Event, whether or not any Obligations are then
outstanding, the Borrowers shall cause the ACH or wire transfer
to, upon the Administrative Agent's or the Canadian Agent's, as
applicable, instruction, the Wachovia Concentration Account or
a Blocked Account established by the Canadian Borrower in the
case of the Canadian Borrower, or another Blocked Account, no
less frequently than daily (and whether or not there is then an
outstanding balance in the Loan Account, unless the Commitments
have been terminated hereunder and the Obligations have
indefeasibly been paid in full) of the then contents of each
DDA, each such transfer to be net of any minimum balance, not
to exceed $10,000, as may be required to be maintained in the
subject DDA by the bank at which such DDA is maintained.
(ii) After the occurrence and during the continuation
of a Cash Dominion Event, whether or not any Obligations are
then outstanding, the Borrowers shall cause the ACH or wire
transfer, upon the Administrative Agent's or the Canadian
Agent's, as applicable, instruction, to the FRG Concentration
Account of the then entire ledger balance of each Blocked
Account (including the Wachovia Concentration Account), net of
such minimum balance, not to exceed $10,000, as may be required
to be maintained in the subject Blocked Account by the bank at
which such Blocked Account is maintained, provided that amounts
in Blocked Accounts established by the Canadian Borrower shall
be delivered only to a concentration account at Bank of
America, N.A. [acting through its Canada branch] or as the
Canadian Agent may otherwise direct.
60
(j) In the event that, notwithstanding the provisions of this
Section 2.23, after the occurrence and during the continuance of a Cash Dominion
Event, the Borrowers receive or otherwise have dominion and control of any such
proceeds or collections of Collateral, such proceeds and collections shall be
held in trust by the Borrowers for the Administrative Agent or the Canadian
Agent, as applicable, and shall not be commingled with any of the Borrowers'
other funds or deposited in any account of any Borrower other than as instructed
by the Administrative Agent or the Canadian Borrower, as applicable.
Section 2.24. Application of Payments.
(a) (i) As long as no Cash Dominion Event has occurred and is
continuing, all amounts received by the Agents from any source shall be applied
to the Obligations and the Other Liabilities as the Administrative Agent and the
Lead Borrower may agree, provided that amounts received in respect of the
Canadian Borrower shall be applied to the Canadian Liabilities as the Canadian
Agent and the Canadian Borrower may agree. Subject to the provisions of Section
2.23 and clause (ii) of this Section, if a Cash Dominion Event has occurred and
is continuing, as long as neither (i) an Event of Default has occurred and the
time for payment of the Obligations has been accelerated, nor (ii) a Default or
an Event of Default has occurred under Section 7.01(h), Section 7.01(i), Section
7.01(q) hereof, all amounts received in the FRG Concentration Account from any
source, including the Blocked Account Banks, shall be applied, on the day of
receipt, in the following order: first, to pay fees and expense reimbursements
and indemnification then due and payable to the Administrative Agent, FSI, the
Issuing Bank (other than any Issuing Bank issuing Canadian Letters of Credit),
and the Collateral Agent (other than fees, expense reimbursements and
indemnification payable in connection with Other Liabilities); second to pay
interest due and payable on Credit Extensions to the Domestic Borrowers, third
to repay outstanding Swingline Loans to the Domestic Borrowers; fourth, to repay
other outstanding Revolving Loans that are Prime Rate Loans of the Domestic
Borrowers and all outstanding reimbursement obligations under Letters of Credit
other than Canadian Letters of Credit; fifth, to repay outstanding Revolving
Loans that are LIBO Loans and all Breakage Costs due in respect of such
repayment pursuant to Section 2.21(b) or, at the Lead Borrower's option, to fund
a cash collateral deposit to the Circuit City Cash Collateral Account sufficient
to pay, and with direction to pay, all such outstanding LIBO Loans on the last
day of the then-pending Interest Period therefor; sixth to fund a cash
collateral deposit in the Circuit City Cash Collateral Account in an amount
equal to 103% of all Letter of Credit Outstandings other than Canadian Letter of
Credit Outstandings; seventh, to pay all other Obligations and all Other
Liabilities of the Domestic Borrowers that are then outstanding and then due and
payable; eighth, to pay fees and expense reimbursements and indemnification then
due and payable to the Canadian Agent and any Issuing Bank issuing Canadian
Letters of Credit (other than fees, expense reimbursements and indemnification
payable in connection with Other Liabilities of the Canadian Borrower); ninth,
to pay interest due and payable on Credit Extensions to the Canadian Borrower;
tenth, to repay outstanding Swingline Loans to the Canadian Borrower; eleventh,
to repay outstanding Revolving Loans that are Prime Rate Loans of the Canadian
Borrower and all outstanding reimbursement obligations under Canadian Letters of
Credit; twelfth, to repay
61
outstanding Revolving Loans that are BA Equivalent Loans and all Breakage Costs
due in respect of such repayment pursuant to Section 2.21(b) or, at the Canadian
Borrower's option, to fund a cash collateral deposit to the InterTAN Canada Cash
Collateral Account sufficient to pay, and with direction to pay, all such
outstanding BA Equivalent Loans on the last day of the then-pending Interest
Period therefore; thirteenth, to fund a cash collateral deposit in the InterTAN
Canada Cash Collateral Account in an amount equal to 103% of all Canadian Letter
of Credit Outstandings; fourteenth, to pay all other Obligations and all Other
Liabilities of the Canadian Borrower that are then outstanding and then due and
payable. If all amounts set forth in clauses first through and including
fourteenth above are paid, any excess amounts shall promptly be released to the
Borrowers. Any other amounts received by the Administrative Agent, the Issuing
Bank, the Canadian Agent, the Collateral Agent, or any Lender as contemplated by
Section 2.23 shall also be applied in the order set forth above in this Section
2.24.
(ii) Notwithstanding the foregoing, all proceeds
received from the Canadian Borrower or its assets shall be applied solely to the
Canadian Liabilities in the order set forth above.
(b) All credits against the Obligations or the Canadian
Liabilities shall be effective on the day of receipt thereof, and shall be
conditioned upon final payment to the Administrative Agent of the items giving
rise to such credits. If any item deposited to the FRG Concentration Account or
otherwise credited to any Loan Account is dishonored or returned unpaid for any
reason, whether or not such return is rightful or timely, the Administrative
Agent or the Canadian Agent, as applicable, shall have the right to reverse such
credit and charge the amount of such item to the Loan Account and the Borrowers
shall indemnify the Administrative Agent, the Collateral Agent, the Issuing Bank
and the Lenders against all claims and losses resulting from such dishonor or
return.
Section 2.25. Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any
Lender or any holding company of any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the
London interbank market any other condition affecting this
Agreement or LIBO Loans or BA Equivalent Loans made by such
Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any LIBO Loan or BA Equivalent Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to
such Lender or the Issuing Bank of participating in,
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issuing or maintaining any Letter of Credit or to reduce the amount of any sum
received or receivable by such Lender or the Issuing Bank hereunder (whether of
principal, interest or otherwise) other than Taxes, which shall be governed by
Section 2.28 hereof , then the Domestic Borrowers or the Canadian Borrower, as
applicable, will pay to such Lender or the Issuing Bank, as the case may be,
such additional amount or amounts as will compensate such Lender or the Issuing
Bank, as the case may be, for such additional costs incurred or reduction
suffered.
(b) If any Lender or the Issuing Bank determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the Issuing Bank's capital or on
the capital of such Lender's or the Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters of Credit issued by the Issuing
Bank, to a level below that which such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's holding company could have achieved but for such
Change in Law (taking into consideration such Lender's or the Issuing Bank's
policies and the policies of such Lender's or the Issuing Bank's holding company
with respect to capital adequacy), then from time to time the Domestic Borrowers
or the Canadian Borrower, as applicable, will pay to such Lender or the Issuing
Bank, as the case may be, such additional amount or amounts as will compensate
such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding
company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth
the amount or amounts necessary to compensate such Lender or the Issuing Bank or
its holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section and setting forth in reasonable detail the manner in which such
amount or amounts were determined shall be delivered to the Lead Borrower or the
Canadian Borrower, as applicable, and shall be presumptively correct absent
manifest error. The Domestic Borrowers or the Canadian Borrower, as applicable,
shall pay such Lender or the Issuing Bank, as the case may be, the amount shown
as due on any such certificate within ten (10) Business Days after receipt
thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Bank to demand compensation pursuant to this Section within three (3) months of
the increased cost or reduction in return shall constitute a waiver of such
Lender's or the Issuing Bank's right to demand such compensation.
Section 2.26. Change in Legality.
(a) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, if (x) any Change in Law shall make it unlawful for
a Lender to make or maintain a LIBO Loan or BA Equivalent Loan or to give effect
to its obligations as contemplated hereby with respect to a LIBO Loan or BA
Equivalent Loan or (y) at any time any Lender determines that the making or
continuance of any of its LIBO Loans or BA Equivalent Loan has become
impracticable as a result of a contingency occurring after the date hereof which
adversely affects
63
the London interbank market or the position of such Lender in the London
interbank market, then, by written notice to the Lead Borrower, such Lender may
(i) declare that LIBO Loans or BA Equivalent Loans will not thereafter be made
by such Lender hereunder, whereupon any request by the Borrowers for a LIBO
Borrowing or BA Equivalent Loan Borrowing shall, as to such Lender only, be
deemed a request for a Prime Rate Loan unless such declaration shall be
subsequently withdrawn; and (ii) require that all outstanding LIBO Loans or BA
Equivalent Loans made by it be converted to Prime Rate Loans, in which event all
such LIBO Loans or BA Equivalent Loans shall be automatically converted to Prime
Rate Loans as of the effective date of such notice as provided in paragraph (b)
below. In the event any Lender shall exercise its rights under clause (i) or
(ii) of this paragraph (a), all payments and prepayments of principal which
would otherwise have been applied to repay the LIBO Loans or BA Equivalent Loans
that would have been made by such Lender or the converted LIBO Loans or BA
Equivalent Loans of such Lender shall instead be applied to repay the Prime Rate
Loans made by such Lender in lieu of, or resulting from the conversion of, such
LIBO Loans or BA Equivalent Loans.
(b) For purposes of this Section 2.26, a notice to the
Borrowers by any Lender pursuant to paragraph (a) above shall be effective, if
lawful, and if any LIBO Loans or BA Equivalent Loans shall then be outstanding,
on the last day of the then-current Interest Period; and otherwise such notice
shall be effective on the date of receipt by the Borrowers.
Section 2.27. Payments; Sharing of Setoff.
(a) The Borrowers shall make each payment required to be made
by it hereunder or under any other Loan Document (whether of principal,
interest, fees or reimbursement of drawings under Letters of Credit, or of
amounts payable under Section 2.21(b), Section 2.25, or Section 2.28, or
otherwise) prior to 2:00 p.m., Boston time, on the date when due, in immediately
available funds, without setoff or counterclaim. Any amounts received after such
time on any date may, in the discretion of the Administrative Agent or the
Canadian Agent, as applicable, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All such
payments shall be made to the Administrative Agent at its offices at 00 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, or to the Canadian Agent, as applicable, at its
offices at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx, Xxxxxx, X0X 0X0, except
payments to be made directly to the Issuing Bank or Swingline Lender as
expressly provided herein and except that payments pursuant to Section 2.21(b),
Section 2.25, Section 2.28, and Section 9.03 shall be made directly to the
Persons entitled thereto and payments pursuant to other Loan Documents shall be
made to the Persons specified therein. The Administrative Agent or the Canadian
Agent, as applicable, shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment under any Loan Document (other than payments
with respect to LIBO Borrowings or BA Equivalent Loan Borrowings) shall be due
on a day that is not a Business Day, the date for payment shall be extended to
the next succeeding Business Day, and, if any payment due with respect to LIBO
Borrowings or BA Equivalent Loan Borrowings shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day,
64
unless that succeeding Business Day is in the next calendar month, in which
event, the date of such payment shall be on the last Business Day of subject
calendar month, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments under
each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent or the Canadian Agent, as applicable, to
pay fully all amounts of principal, unreimbursed drawings under Letters of
Credit, interest and fees then due hereunder, such funds shall be applied (i)
first, towards payment of interest and fees then due hereunder, ratably among
the Domestic Lenders or Canadian Lenders, as applicable, entitled thereto in
accordance with the amounts of interest and fees then due to such Lenders, and
(ii) second, towards payment of principal and unreimbursed drawings under
Letters of Credit then due hereunder, ratably among the Domestic Lenders or
Canadian Lenders, as applicable, entitled thereto in accordance with the amounts
of principal and unreimbursed drawings under Letters of Credit then due to such
parties.
(c) If any Domestic Lender or Canadian Lender, as applicable, shall, by
exercising any right of setoff or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its Loans or participations in
drawings under Letters of Credit or Swingline Loans resulting in such Domestic
Lender's or Canadian Lender's receiving payment of a greater proportion of the
aggregate amount of its Loans and participations in drawings under Letters of
Credit and Swingline Loans and accrued interest thereon than the proportion
received by any other Domestic Lender or Canadian Lender, then the Domestic
Lender or Canadian Lender receiving such greater proportion shall purchase (for
cash at face value) participations in the Loans and participations in drawings
under Letters of Credit and Swingline Loans of other Domestic Lenders or
Canadian Lenders, as applicable, to the extent necessary so that the benefit of
all such payments shall be shared by the Domestic Lenders and the Canadian
Lenders, as applicable, ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Loans and participations
in drawings under Letters of Credit and Swingline Loans, provided that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrowers pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Domestic Lender or Canadian
Lender as consideration for the assignment of or sale of a participation in any
of its Loans or participations in drawings under Letters of Credit to any
assignee or participant, other than to the Borrowers or any Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrowers
consent to the foregoing and agree, to the extent they may effectively do so
under Applicable Law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrowers rights of setoff and
counterclaim with respect to such participation as fully as if such Domestic
Lender or Canadian Lender were a direct creditor of the Borrowers in the amount
of such participation. Notwithstanding the foregoing, any amounts of the
Canadian Borrower so offset shall be applied
65
solely to the Canadian Liabilities and any adjustments with respect thereto
shall be made solely amongst Lenders having a Canadian Commitment.
(d) Unless the Administrative Agent or the Canadian Agent, as
applicable, shall have received notice from the Borrowers prior to the date on
which any payment is due to the Administrative Agent or the Canadian Agent, as
applicable, for the account of the Domestic Lenders, the Canadian Lenders or the
Issuing Bank hereunder that the Borrowers will not make such payment, the
Administrative Agent or the Canadian Agent, as applicable, may assume that the
Borrowers have made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Domestic Lenders or the
Canadian Lenders, as applicable, or the Issuing Bank, as the case may be, the
amount due. In such event, if the Borrowers have not in fact made such payment,
then each of the Domestic Lenders or Canadian Lenders, as applicable, or the
Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent or the Canadian Agent, as applicable, forthwith on demand
the amount so distributed to such Domestic Lender, Canadian Lender or Issuing
Bank with interest thereon, for each day from and including the date such amount
is distributed to it to but excluding the date of payment to the Administrative
Agent, or the Canadian Agent, as applicable, at the Federal Funds Effective
Rate.
(e) If any Domestic Lender or Canadian Lender shall fail to
make any payment required to be made by it pursuant to this Agreement, then the
Administrative Agent or the Canadian Agent, as applicable, may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent or the Canadian Agent, as
applicable, for the account of such Domestic Lender or Canadian Lender to
satisfy such Lender's obligations under this Agreement until all such
unsatisfied obligations are fully paid.
Section 2.28. Taxes.
(a) Any and all payments by or on account of any obligation of
the Borrowers hereunder or under any other Loan Document shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes,
provided that if the Borrowers shall be required to deduct any Indemnified Taxes
or Other Taxes from such payments or any Lender shall be required to pay any
Indemnified Taxes or Other Taxes in respect of any such payments, then (i) the
sum payable by the Borrower shall be increased as necessary so that after making
all required deductions or payments by any Lender (including deductions or
payments by any Lender applicable to additional sums payable under this Section)
the Agents, any Lender or the Issuing Bank (as the case may be) receives and
maintains after any such payment by the Lender an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrowers shall
make such deductions, and (iii) the Borrowers shall pay the full amount deducted
to the relevant Governmental Authority in accordance with Applicable Law.
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(b) In addition, the Borrowers shall pay any Other Taxes to the
relevant Governmental Authority in accordance with Applicable Law.
(c) The Borrowers shall indemnify the Agents, each Lender and
the Issuing Bank and the Canadian Borrower shall indemnify the Canadian Agent,
each Canadian Lender and the Issuing Bank of any Letter of Credit on its behalf,
within ten (10) Business Days after written demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes paid by such Agent, such Lender or the
Issuing Bank, as the case may be, on or with respect to any payment by or on
account of any obligation of the Borrowers hereunder or under any other Loan
Document (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, to the extent
that such penalties, interest and expenses shall not result from any action or
inaction on the part of the Agent, the Lender or the Issuing Bank, as the case
may be, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrowers by a Lender or the Issuing Bank, or by any Agent on its own behalf or
on behalf of a Lender or the Issuing Bank setting forth in reasonable detail the
manner in which such amount was determined, shall be presumptively correct
absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrowers to a Governmental Authority, the Borrowers
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent or the Canadian Agent, as applicable.
(e) Any Foreign Lender other than a Canadian Lender that is
entitled to an exemption from or reduction in withholding tax shall deliver to
the Domestic Borrowers and the Administrative Agent two copies of either United
States Internal Revenue Service Form 1001 or Form 4224, or, in the case of a
Foreign Lender's claiming exemption from or reduction in U.S. Federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a Form W-8, or any subsequent versions thereof
or successors thereto (and, if such Foreign Lender delivers a Form W-8BEN, a
certificate representing that such Foreign Lender is not a bank for purposes of
Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning
of Section 871(h)(3)(B) of the Code) of the Domestic Borrowers and is not a
controlled foreign corporation related to the Domestic Borrowers (within the
meaning of Section 864(d)(4) of the Code)), properly completed and duly executed
by such Foreign Lender claiming complete exemption from or reduced rate of,
United States federal withholding tax on payments by the Domestic Borrowers
under this Agreement and the other Loan Documents. Such forms shall be delivered
by each Foreign Lender other than a Canadian Lender on or before the date it
becomes a party to this Agreement (or, in the case of a transferee that is a
participation holder, on or before the date such participation holder becomes a
transferee hereunder) and on or before the
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date, if any, such Foreign Lender changes its applicable lending office by
designating a different lending office (a "New Lending Office"). In addition,
each Foreign Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Foreign Lender other than a
Canadian Lender. Notwithstanding any other provision of this Section 2.28(e), a
Foreign Lender shall not be required to deliver any form pursuant to this
Section 2.28(e) that such Foreign Lender is not legally able to deliver.
(f) The Borrowers shall not be required to indemnify any
Foreign Lender or to pay any additional amounts to any Foreign Lender in respect
of U.S. Federal withholding tax pursuant to paragraph (a) or (c) above to the
extent that the obligation to pay such additional amounts would not have arisen
but for a failure by such Foreign Lender to comply with the provisions of
paragraph (e) above. Should a Lender become subject to Taxes because of its
failure to deliver a form required hereunder, the Borrowers shall, at such
Lender's expense, take such steps as such Lender shall reasonably request to
assist such Lender to recover such Taxes.
(g) If the Lead Borrower determines in good faith that a
reasonable basis exists for contesting a Tax, the relevant Lender or the
Administrative Agent, as applicable, shall cooperate with the Lead Borrower in
challenging such Tax at the Lead Borrower's expense, if requested by the Lead
Borrower. If any Lender or the Administrative Agent, as applicable, obtains a
credit against or receives a refund or reduction (whether by way of direct
payment or by offset) of any Tax for which payment has been made pursuant to
this Section, which credit, refund or reduction in the good faith judgment of
such Lender or the Administrative Agent, as the case may be, (and without any
obligation to disclose its tax records) is allocable to such payment made under
this Section, the amount of such credit, refund or reduction (together with any
interest received thereon) promptly shall be paid to the Lead Borrower or
Canadian Borrower, as applicable, to the extent that payment has been made by
the Lead Borrower in full pursuant to this Section.
Each Lender which has a Canadian Commitment hereby certifies that it is a
resident of Canada for purposes of the Income Tax Act (Canada) or that payments
of interest to it by the Canadian Borrower are otherwise exempt from withholding
taxes. Each Person that becomes a Lender to the Canadian Borrower hereafter
shall promptly deliver to the Canadian Borrower and the Canadian Agent a
certificate as to whether such Person is a resident of Canada for purposes of
the Income Tax Act (Canada) or that payments of interest to it by the Canadian
Borrower are otherwise exempt from withholding taxes. If any such Lender is not
a resident of Canada for purposes of the Income Tax Act (Canada) or otherwise
not exempt from the payment of withholding taxes or interest payments to it,
such Person shall not be entitled to payments hereunder with respect to taxes
imposed under Part XIII of the Income Tax Act (Canada).
Section 2.29. Security Interests in Collateral.
To secure their Obligations under this Agreement and the other Loan
Documents and the Other Liabilities, the Domestic Borrowers shall grant to the
Collateral Agent and the Canadian
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Borrower shall grant to the Canadian Agent, for its benefit and the ratable
benefit of the other Secured Parties, a first-priority security interest in, and
hypothec of, all of the Collateral pursuant hereto and to the Security
Documents, subject to Permitted Encumbrances having priority over the Lien of
the Agents, provided that the Collateral granted by the Canadian Borrower shall
secure only the Canadian Liabilities.
Section 2.30. Mitigation Obligations; Replacement of Lenders
(a) If any Lender requests compensation under Section 2.25, or
if the Borrowers are required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.28,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the reasonable judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.25 or Section 2.28, as
the case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrowers (in the case of the Canadian Borrower, only in respect of
any Canadian Lender) hereby agree to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment;
provided, however, that the Borrowers shall not be liable for such costs and
expenses of a Lender requesting compensation if (i) such Lender becomes a party
to this Agreement on a date after the Closing Date and (ii) the relevant Change
in Law occurs on a date prior to the date such Lender becomes a party hereto.
(b) If any Lender requests compensation under Section 2.25, or
if the Borrowers are required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.28,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrowers may, at their sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.05), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment), provided that (i) except in the
case of an assignment to another Lender, the Borrowers shall have received the
prior written consent of the Administrative Agent, the Issuing Bank and
Swingline Lender and the Canadian Agent only in the case of a Canadian Lender,
which consent shall not unreasonably be withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans
and participations in unreimbursed drawings under Letters of Credit and
Swingline Loans, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrowers (in the case of all
other amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.25 or payments required to be made
pursuant to Section 2.28, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any such
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assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrowers to require such
assignment and delegation cease to apply.
Article III
Representations and Warranties
Each Borrower (except that the Canadian Borrower represents and warrants
only in respect of itself and its Subsidiaries and only to the Canadian Agent
and the Canadian Lenders), for itself and on behalf of such Borrower's
Subsidiaries represents and warrants to the Agents and the Lenders that:
Section 3.01. Organization; Powers.
Each Borrower is, and each of its Subsidiaries is, duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, and each such Person has all requisite power and authority to carry on
its business as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.
Section 3.02. Authorization; Enforceability.
The transactions contemplated hereby and by the other Loan Documents to be
entered into by each Borrower are within such Borrower's corporate powers and
have been duly authorized by all necessary corporate, and, if required,
stockholder action. This Agreement has been duly executed and delivered by each
Borrower that is a party hereto and constitutes, and each other Loan Document to
which any Borrower is a party, when executed and delivered by such Borrower will
constitute, a legal, valid and binding obligation of such Borrower (as the case
may be), enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
Section 3.03. Governmental Approvals; No Conflicts.
The transactions to be entered into contemplated by the Loan Documents (a)
do not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except (i) for such as have been
obtained or made and are in full force and effect, (ii) for those for which the
failure to obtain could not be reasonably be expected to have a Material Adverse
Effect, and (iii) for filings, registrations and recordings necessary to perfect
and render opposable Liens created under the Loan Documents, (b) will not
violate any Applicable Law or regulation or the charter, by-laws or other
organizational documents of any Borrower or any order of any Governmental
Authority, except for such violation which could not
70
reasonably be expected to have a Material Adverse Effect, (c) will not violate
or result in a default under any indenture, agreement or other instrument
binding upon any Borrower or any of its Subsidiaries or their respective assets,
except for such violation or default which could not reasonably be expected to
have a Material Adverse Effect, or give rise to a right thereunder to require
any payment of a material amount to be made by any Borrower or any of its
Subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any asset of any Borrower or any of its Subsidiaries, except Liens created
under the Loan Documents or otherwise permitted hereby or thereby.
Section 3.04. Financial Condition.
The Lead Borrower has heretofore furnished to the Lenders the consolidated
balance sheet, and statements of income, stockholders' equity, and cash flows
for the Lead Borrower and its Subsidiaries as of and for the fiscal year ending
February 28, 2004. Such financial statements present fairly, in all material
respects, the financial position, results of operations and cash flows of the
Lead Borrower and its Subsidiaries, as of such dates and for such periods in
accordance with GAAP.
Section 3.05. Properties.
(a) Each Borrower, and each of its Restricted Subsidiaries, has
good title to, or valid leasehold interests in, all its real (immoveable) and
personal (moveable) property material to its business, except for defects which
could not reasonably be expected to have a Material Adverse Effect.
(b) Each Borrower, and each of its Restricted Subsidiaries
owns, or is licensed to use, all trademarks, trade names, copyrights, patents
and other intellectual property material to its business, and the use thereof by
such Person does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
(c) Schedule 3.05(c)(i) sets forth the address of all Real
Estate that is owned by each Borrower and each of their respective Subsidiaries
as of the Closing Date, together with a list of the holders of any mortgage or
other Lien thereon. Schedule 3.05(c)(ii) sets forth the address of all Real
Estate that is leased by each Borrower and each of their respective Subsidiaries
as of the Closing Date, together with a list of the landlords and holders of any
mortgage or other Lien thereon.
Section 3.06. Litigation and Environmental Matters.
(a) There are no actions, suits or proceedings by or before any arbitrator
or Governmental Authority pending against or, to the knowledge of any Borrower
or any of its Subsidiaries, threatened against or affecting any such Person or
involving any of the Loan
71
Documents, which could reasonably be expected, individually or in the aggregate,
to result in a Material Adverse Effect (other than those set forth on Schedule
3.06).
(b) Except for the matters set forth on Schedule 3.06, and
except as could not reasonably be expected to have a Material Adverse Effect, no
Borrower and no Subsidiary of any Borrower (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c) Since the date of this Agreement, there has been no change
in the status of the matters set forth on Schedule 3.06 that, individually or in
the aggregate, has resulted in, or could reasonably be expected to result in, a
Material Adverse Effect.
Section 3.07. Compliance with Laws and Agreements.
Each Borrower, and each of its Subsidiaries, is in compliance with all
laws, regulations and orders of any Governmental Authority applicable to it or
its property and all indentures, material agreements and other instruments
binding upon it or its property, except where the failure to do so, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect. No Default has occurred and is continuing.
Section 3.08. Investment and Holding Company Status.
No Borrower nor any Subsidiary of any Borrower is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
Section 3.09. Taxes.
Each Borrower, and each of its Subsidiaries, has timely filed or caused to
be filed all tax returns and reports required to have been filed and has paid or
caused to be paid all taxes required to have been paid by it, except (a) taxes
that are being contested in good faith by appropriate proceedings, for which
such Person has set aside on its books adequate reserves, and as to which no
Lien has arisen, or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
Section 3.10. ERISA.
Except as set forth on Schedule 3.10, as of the Closing Date, none of the
Borrowers is party to a Plan. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to
72
occur, could reasonably be expected to result in a Material Adverse Effect. The
present value of all accumulated benefit obligations under each Plan (based on
the assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed the fair market value of the assets of such
Plan, and the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market
value of the assets of all such underfunded Plans.
Section 3.11. Disclosure.
None of the reports, financial statements, certificates or other
information furnished by or on behalf of any Borrower or any of its Subsidiaries
to the Administrative Agent or any Lender in connection with the negotiation of
this Agreement or any other Loan Document or delivered hereunder or thereunder
(as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, provided that with respect to projected or pro forma
financial information, the Borrowers represent only that such information was
prepared in good faith.
Section 3.12. Subsidiaries.
Schedule 3.12 sets forth the name of, and the ownership interest of each
Borrower in each of its Subsidiaries as of the Closing Date. There is no other
capital stock or ownership interest of any class outstanding as of the Closing
Date. Except as set forth on Schedule 3.12, as of the Closing Date, the
Borrowers are not and each of their respective Subsidiaries is not party to any
joint venture, general or limited partnership, or limited liability company,
agreements or any other business ventures or entities.
Section 3.13. Insurance.
Schedule 3.13 sets forth a description of all insurance maintained by or on
behalf of the Borrowers and their respective Subsidiaries as of the Closing
Date. As of the Closing Date, each of such policies is in full force and effect.
As of the Closing Date, all premiums in respect of such insurance that are due
and payable have been paid.
Section 3.14. Labor Matters.
There are no strikes, lockouts or slowdowns against any Borrower or any of
its Subsidiaries pending or, to the knowledge of the Borrowers, threatened to
the extent that any such action could reasonably be expected to have a Material
Adverse Effect. The hours worked by and payments made to employees of the
Borrowers and their respective Subsidiaries have not been in violation of the
Fair Labor Standards Act or any other applicable federal, state, local or
foreign law dealing with such matters to the extent that any such violation
could reasonably be
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expected to have a Material Adverse Effect. All payments due from any Borrower
or any of its Subsidiaries, or for which any claim may be made against any such
Person, on account of wages and employee health and welfare insurance and other
benefits, have been paid or accrued as a liability on the books of such member,
except for such payments or claims as could not reasonably be expected to have a
Material Adverse Effect. The consummation of the transactions contemplated by
the Loan Documents will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement
to which any Borrower or any of its Subsidiaries is bound.
Section 3.15. Security Documents.
The Security Documents create in favor of the Collateral Agent or the
Canadian Agent, as applicable, for the ratable benefit of the Secured Parties, a
legal, valid and enforceable security interest in the Collateral, and the
Security Documents constitute, or will upon the filing of financing statements
or other requisite registrations and the obtaining of "control", in each case
with respect to the relevant Collateral as required under the applicable Uniform
Commercial Code or similar legislation of any jurisdiction including, without
limitation, the PPSA and the Civil Code of Quebec, the creation of a fully
perfected and opposable first priority Lien on, and security interest in, and
hypothecation of, all right, title and interest of the Borrowers thereunder in
such Collateral, in each case prior and superior in right to any other Person,
except as permitted hereunder or under any other Loan Document.
Section 3.16. Federal Reserve Regulations.
(a) Neither the Borrowers nor any of their respective
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of buying or carrying Margin
Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit
will be used, whether directly or indirectly, and whether immediately,
incidentally or ultimately, (i) to buy or carry Margin Stock or to extend credit
to others for the purpose of buying or carrying Margin Stock or to refund
indebtedness originally incurred for such purpose or (ii) for any purpose that
entails a violation of, or that is inconsistent with, the provisions of the
Regulations of the Board, including Regulation U or X.
Section 3.17. Solvency.
Each of the Borrowers is Solvent. No transfer of property is being made by
any Borrower and no obligation is being incurred by any Borrower in connection
with the transactions contemplated by this Agreement or the other Loan Documents
with the intent to hinder, delay, or defraud either present or future creditors
of any Borrower.
Section 3.18. Inventory.
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All Inventory of the Lead Borrower and its Subsidiaries (other than an
amount not to exceed one percent (1%) of the total Inventory at any time) shall
be owned only by a Borrower or a Subsidiary which has complied with the
provisions of Section 5.12 hereof.
Article IV
Conditions
Section 4.01. Closing Date.
This Agreement shall not become effective until the date on which each of
the following conditions precedent have been satisfied or waived by the
Administrative Agent:
(a) The Agents (or their counsel) shall have received from each
party hereto either (i) a counterpart of this Agreement and all other Loan
Documents (including, without limitation, the Notes and the Security Documents)
signed on behalf of such party or (ii) written evidence satisfactory to the
Agents (which may include telecopy transmission of a signed signature page of
this Agreement) that such party has signed a counterpart of this Agreement and
all other Loan Documents.
(b) The Agents shall have received a favorable written opinion
(addressed to each Agent and the Lenders on the Closing Date and dated the
Closing Date) of McGuireWoods LLP, counsel for the Domestic Borrowers
substantially in the form of Exhibit C-1, and Davies Xxxx Xxxxxxxx & Xxxxxxxx,
counsel for the Canadian Borrower, substantially in the form of C-2, covering
such matters relating to the Borrowers, the Loan Documents or the transactions
contemplated thereby as the Required Lenders shall reasonably request. The
Borrowers hereby request such counsel to deliver such opinions.
(c) The Agents shall have received such documents and
certificates as the Agents or their counsel may reasonably request relating to
the organization, existence and good standing of each Borrower, the
authorization of the transactions contemplated by the Loan Documents and any
other legal matters relating to the Borrowers, the Loan Documents or the
transactions contemplated thereby, all in form and substance reasonably
satisfactory to the Agents and their counsel.
(d) The Agents shall have received a certificate, reasonably
satisfactory in form and substance to the Agents, (i) with respect to the
solvency of (A) the Lead Borrower and its Subsidiaries on a consolidated basis,
and (B) each Borrower, individually, as of the Closing Date, and (ii) certifying
that, as of the Closing Date, the representations and warranties made by the
Borrowers in the Loan Documents are true and complete in all material respects
and that no event has occurred (or failed to occur) which is or which, solely
with the giving of notice or passage of time(or both) would be a Default or an
Event of Default.
(e) All necessary consents and approvals to the transactions
contemplated hereby shall have been obtained and shall be reasonably
satisfactory to the Agents.
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(f) The Agents shall be reasonably satisfied that any financial
statements delivered to them fairly present the business and financial condition
of the Lead Borrower and its Subsidiaries, and that there has been no material
adverse change in the assets, business, financial condition, income, or
prospects of the Lead Borrower and its Subsidiaries since the date of the most
recent financial information delivered to the Agents.
(g) There shall not have occurred any default, nor shall any
event exist which is, or solely with the passage of time, the giving of notice
or both, would be a default under any Material Indebtedness of any Borrower.
(h) The Collateral Agent and the Canadian Agent shall have
received results of searches or other evidence reasonably satisfactory to the
Collateral Agent or the Canadian Agent, as applicable (in each case dated as of
a date reasonably satisfactory to the Collateral Agent or the Canadian Agent, as
applicable) indicating the absence of Liens on the Borrowers' Inventory and
proceeds thereof, including without limitation, receivables from credit card
processors, except for Liens for which termination statements and releases
reasonably satisfactory to the Collateral Agent or the Canadian Agent, as
applicable, are being tendered concurrently with such extension of credit.
(i) The Collateral Agent and the Canadian Agent shall have
received all documents and instruments, including Uniform Commercial Code and
PPSA financing statements and certified statements issued by the Quebec Register
of Personal and Movable Real Rights, required by law or reasonably requested by
the Collateral Agent and the Canadian Agent to be filed, registered, published
or recorded to create or perfect the first priority Liens intended to be created
under the Loan Documents and all such documents and instruments shall have been
so filed, registered, published or recorded to the satisfaction of the
Collateral Agent and the Canadian Agent.
(j) The Collateral Agent and the Canadian Agent, as applicable,
shall have received the DDA Notifications, the Blocked Account Agreements and
Credit Card Agreements required to be delivered hereunder on or before the
Closing Date.
(k) All fees due at or immediately after the Closing Date and
all reasonable costs and expenses incurred by the Agents in connection with the
establishment of the credit facility contemplated hereby (including the
reasonable fees and expenses of counsel to the Agents) shall have been paid in
full.
(l) The Domestic Borrowers shall have paid to the Agents for
the pro rata accounts of the Lenders a fee in the sum equal to 0.05% of each
Lender's aggregate Commitment. Such fee shall be fully earned upon the execution
hereof and shall not be subject to refund or rebate under any circumstances.
(m) The Borrowers shall have reimbursed the Agents for all
expenses incurred by the Agents in connection therewith, including, without
limitation, reasonable attorneys' fees.
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(n) The consummation of the transactions contemplated hereby
shall not (a) violate any Applicable Law, or (b) conflict with, or result in a
default or event of default under, any material agreement of any Borrower.
(o) No material changes in governmental regulations or policies
affecting the Borrowers, the Agents, the Arranger or any Lender involved in this
transaction shall have occurred prior to the Closing Date which could,
individually or in the aggregate, materially adversely effect the transaction
contemplated by this Agreement.
(p) There shall be no Default or Event of Default on the
Closing Date.
(q) The Collateral Agent and, in respect of the Canadian
Borrower and its Subsidiaries, the Canadian Agent, shall have received, and be
satisfied with, evidence of the Borrowers' insurance, together with such
endorsements as are required by the Loan Documents.
(r) The Canadian Agent shall have received a payoff letter or
evidence otherwise reasonably satisfactory in form and substance to the Agents
from the Canadian Borrower's existing lenders confirming the termination of such
credit facility upon receipt of payment of the amounts due, if any, thereunder.
All obligations to such existing lenders, if any, shall be repaid with the
proceeds of the initial Loans hereunder, and all Liens with respect to the
foregoing financing arrangements on any of the Canadian Borrower's and its
Subsidiaries' assets, if any, shall have been terminated (or provision therefor
satisfactory to the Canadian Agent, made).
(s) There shall have been delivered to the Administrative Agent
and/or the Canadian Agent such additional instruments and documents as the
Agents or counsel to the Agents reasonably may require or request.
The Administrative Agent shall notify the Borrowers and the Lenders of the
Closing Date, and such notice shall be conclusive and binding.
Section 4.02. Conditions Precedent to Each Loan and Each Letter of Credit.
The obligation of the Lenders to make each Revolving Loan and of the
Issuing Bank to issue each Letter of Credit, is subject to the following
conditions precedent:
(a) Notice. The Administrative Agent shall have received a
notice with respect to such Borrowing or issuance, as the case may be, as
required by Article II.
(b) Representations and Warranties. All representations and
warranties contained in this Agreement and any Borrowing Base Certificate shall
be true and correct in all material respects on and as of the date of each
Borrowing or the issuance of each Letter of Credit hereunder with the same
effect as if made on and as of such date, other than representations and
warranties that relate solely to an earlier date.
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(c) No Default. On the date of each Borrowing hereunder and the
issuance of each Letter of Credit, no Default or Event of Default shall have
occurred and be continuing.
(d) Borrowing Base Certificate. The Administrative Agent shall
have received the most recently required Borrowing Base Certificate, with each
such Borrowing Base Certificate including schedules as required by this
Agreement.
The request by the respective Borrowers for, and the acceptance by the
respective Borrowers of, each extension of credit hereunder shall be deemed to
be a representation and warranty by the respective Borrowers that the conditions
specified in this Section 4.02(b) and (c) have been satisfied at that time and
that after giving effect to such extension of credit the respective Borrowers
shall continue to be in compliance with the Borrowing Base. The conditions set
forth in this Section 4.02 are for the sole benefit of the Administrative Agent
and each Lender and may be waived by the Administrative Agent in whole or in
part without prejudice to the Administrative Agent or any Lender.
Article V
Affirmative Covenants
Until the Commitments have expired or been terminated and the principal of
and interest on each Loan and all fees payable hereunder shall have been paid in
full and all Letters of Credit shall have expired or terminated and all L/C
Disbursements shall have been reimbursed, each Borrower (provided that the
Canadian Borrower covenants and agrees only for itself and its Subsidiaries and
shall not be liable for any failure by any Domestic Borrower's failure to comply
with any covenant on its part) covenants and agrees with the Agents and the
Lenders that:
Section 5.01. Financial Statements and Other Information
(a) The Borrowers will furnish to the Agents and the Lenders:
(i) within ninety (90) days after the end of each
fiscal year of the Lead Borrower, its consolidated balance
sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such year,
setting forth in each case in comparative form the figures for
the previous fiscal year, all audited and reported on by
independent public accountants of recognized national standing
(without a "going concern" or like qualification or exception
and without a qualification or exception as to the scope of
such audit) to the effect that such consolidated financial
statements present fairly in all material respects the
financial condition and results of operations of the Lead
Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP; and
(ii) within forty-five (45) days after the end of each
fiscal quarter of the Lead Borrower, its consolidated balance
sheet and related statements of operations, stockholders'
equity and cash flows, as of the end of and for such
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fiscal quarter and the elapsed portion of the fiscal year, with
comparative results to the same fiscal periods of the prior
fiscal year, in each case as certified by one of its Financial
Officers as presenting in all material respects the financial
condition and results of operations of the Lead Borrower and
its Subsidiaries on a consolidated basis in accordance with
GAAP, subject to normal year end audit adjustments and the
absence of footnotes, and
(iii) concurrently with any delivery of financial
statements under clause (i) or (ii) above, a certificate of a
Financial Officer of the Lead Borrower in the form of Schedule
5.01(a)(iii) (i) certifying, to the best knowledge of such
Financial Officer, as to whether a Default has occurred and, if
a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii)
setting forth reasonably detailed calculations with respect to
the Consolidated EBITDA for such period, and (iii) stating
whether any change in GAAP or in the application thereof has
occurred since the date of the Lead Borrower's audited
financial statements referred to in Section 3.04 and, if any
such change has occurred, specifying the effect of such change
on the financial statements accompanying such certificate; and
(iv) within forty-five (45) days subsequent to the
commencement of each fiscal year of the Lead Borrower, a
detailed consolidated budget by quarter for such fiscal year
(including a projected consolidated balance sheet and related
statements of projected operations and cash flow as of the end
of and for such fiscal year) and, promptly when available, any
significant revisions of such budget; and
(v) promptly after the same become publicly available,
copies of all reports on Forms 10-K and 10-Q and proxy
statements filed by the Lead Borrower with the Securities and
Exchange Commission, or any Governmental Authority succeeding
to any or all of the functions of said Commission, or with any
national securities exchange, as the case may be.
(b) The Borrowers will furnish to the Agents
(i) within ten (10) Business Days after the end of each
month, a certificate in the form of Exhibit D (a "Borrowing
Base Certificate") showing the Borrowing Base as of the close
of business on the last day of the immediately preceding month,
each such Certificate to be certified as complete and correct
on behalf of the Borrowers by a Financial Officer of the Lead
Borrower, provided that in addition to the foregoing, within
five (5) Business Days after the end of December of each year,
the Lead Borrower shall furnish a preliminary Borrowing Base
Certificate as of the close of business on the last day of
December, provided, further however, if and so long as an Event
of Default exists, at the option of the
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Administrative Agent, such Borrowing Base Certificate (showing
the Borrowing Base as of the close of business on the last day
of the immediately preceding week) shall be furnished weekly on
Wednesday of each week; and
(ii) the financial and collateral reports described on
Schedule 5.01(b)(ii), at the times set forth in such Schedule;
and
(iii) after the occurrence and during the continuance
of an Event of Default, promptly upon receipt thereof, copies
of all reports submitted to the Lead Borrower by independent
certified public accountants in connection with each annual,
interim or special audit of the books of the Lead Borrower and
its Subsidiaries made by such accountants, including any
management letter submitted by such accountants to management
in connection with their annual audit, but excluding any
accountant "agreed upon procedures" report.
(iv) promptly following any request therefor, such
other information regarding the operations, business affairs
and financial condition of any Borrower, or compliance with the
terms of any Loan Document, as the Agents or any Lender may
reasonably request.
Section 5.02. Notices of Material Events.
The Borrowers will furnish to the Administrative Agent prompt written
notice of the following:
(a) within three Business Days after a Financial Officer
obtains knowledge thereof, the occurrence of any Default or Event of Default;
(b) within three Business Days after a Financial Officer
obtains knowledge thereof, the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority against or
affecting any Borrower or any Subsidiary or any Affiliate thereof that, if
adversely determined, could reasonably be expected to result in a Material
Adverse Effect;
(c) within three Business Days after a Financial Officer
obtains knowledge thereof, the occurrence of any ERISA Event that, alone or
together with any other ERISA Events that have occurred, could reasonably be
expected to result in a Material Adverse Effect;
(d) within three Business Days after a Financial Officer
obtains knowledge thereof, any other development that results in, or could
reasonably be expected to result in, a Material Adverse Effect;
(e) any change in any the Lead Borrower's executive officers;
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(f) within three Business Days after a Financial Officer
obtains knowledge thereof, the filing of any Lien for unpaid taxes against any
Borrower in an amount in excess of $2,000,000;
(g) the discharge by any Borrower of their present independent
accountants or any withdrawal or resignation by such independent accountants;
and
(h) within three Business Days after a Financial Officer
obtains knowledge thereof, the occurrence of any early amortization event or
event of default by the Lead Borrower or any of its Subsidiaries under any
Permitted Securitization Transaction.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Lead Borrower setting
forth the details of the event or development requiring such notice and, if
applicable, any action taken or proposed to be taken with respect thereto.
Section 5.03. Information Regarding Collateral.
(a) The Lead Borrower will furnish to the Agents prompt written
notice of any change of the following (except that with respect to the events
described in clauses (i), (iii) and (iv), the Lead Borrower shall provide the
Agents with at least ten (10) days prior written notice of the date that any
such event shall occur): (i) in any Borrower's corporate name or in any trade
name used to identify it in the conduct of its business or in the ownership of
its properties, (ii) in the location of any Borrower's chief executive office or
its principal place of business, (iii) in any Borrower's identity or corporate
structure, (iv) in the Canadian Borrower's or any of its Subsidiaries'
jurisdictions of operation including an change in any office or store in which
it maintains books or records relating to Collateral owned by it or any office,
store or facility at which Collateral owned by it is located (including the
establishment of any such new office or facility) or location from which
Accounts are invoiced or paid, provided that such information shall be required
to be furnished only quarterly with the delivery of the financial statements
required pursuant to Section 5.01 hereof except for notices of jurisdictions,
provinces and locations in which the Canadian Borrower was not previously
operating if the Agents' Lien would not be perfected therein without additional
filings or registrations, or (v) in any Borrower's jurisdiction of
incorporation, Federal Taxpayer Identification Number or organizational
identification number assigned to it by its jurisdiction of organization.
Notwithstanding the foregoing, if any Borrower's Federal Taxpayer Identification
Number or organizational identification number assigned to it by its
jurisdiction of organization is changed by the applicable Governmental
Authority, Lead Borrower will furnish to the Agents prompt written notice of any
such change not later than ten (10) days from the date such Borrower has been
notified by such Governmental Authority of such change. The Lead Borrower also
agrees promptly to notify the Agents if any material portion of the Collateral
is damaged or destroyed. In addition, the Lead Borrower will furnish to the
Agents written notice at the end of each fiscal quarter of any change in any
office or store in which it maintains books or records relating to
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Collateral owned by it or any office, store or facility at which Collateral
owned by it is located (including the establishment of any such new office or
facility).
(b) Each year, at the time of delivery of annual financial statements with
respect to the preceding fiscal year pursuant to Section 5.01(a)(i), the Lead
Borrower shall deliver to the Agents a certificate of a Financial Officer of the
Lead Borrower setting forth the information required pursuant to Section 2 of
the Perfection Certificate or confirming that there has been no change in such
information since the date of the Perfection Certificate delivered on the
Closing Date or the date of the most recent Perfection Certificate delivered
pursuant to this Section.
(c) Should any of the information on any of the Schedules hereto become
misleading in any material respect as a result of changes after the Closing
Date, the Lead Borrower shall advise the Administrative Agent in writing of such
revisions or updates as may be necessary or appropriate to update or correct the
same; provided however that no update to any such Schedule shall result in the
modification or expansion of any permissible transactions set forth in Article 6
hereof from those in existence immediately prior to the delivery of such updated
schedules.
Section 5.04. Existence; Conduct of Business.
Each Borrower will, and will cause each of its Restricted Subsidiaries to,
do or cause to be done all things necessary to comply with its respective
charter, certificate and articles of incorporation, articles of organization,
and/or other organizational documents, as applicable; and by-laws and/or other
instruments which deal with corporate governance, and to preserve, renew and
keep in full force and effect its legal existence and the rights, licenses,
permits, privileges, franchises, patents, copyrights, trademarks and trade names
material to the conduct of its business, provided that the foregoing shall not
prohibit any transaction permitted under Section 6.03 or Section 6.05 or
prohibit any such Person from discontinuing any business or forfeiting any
right, license, permit, privilege, franchise, patent, copyright, trademark or
trade name it reasonably deems appropriate in the ordinary course of business.
Section 5.05. Payment of Obligations.
Each Borrower will, and will cause each of its Restricted Subsidiaries to,
pay its Indebtedness and other obligations, including tax liabilities, before
the same shall become delinquent or in default, except where (a) (i) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, (ii) such Borrower or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP, (iii) such
contest effectively suspends collection of the contested obligation, and (iv) no
Lien secures such obligation or (b) the failure to make payment could not
reasonably be expected to result in a Material Adverse Effect. Nothing contained
herein shall be deemed to limit the rights of the Administrative Agent under
Section 2.03(b).
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Section 5.06. Maintenance of Properties.
Each Borrower will, and will cause each of its Restricted Subsidiaries to,
keep and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted and with the
exception of asset dispositions permitted hereunder.
Section 5.07. Insurance.
(a) Each Borrower will, and will cause each of its Restricted
Subsidiaries to, (i) maintain insurance with financially sound and reputable
insurers having a rating of at least A- or better by A.M. Best Rating Guide (or,
to the extent consistent with prudent business practice, a program of
self-insurance) on such of its property and in at least such amounts and against
at least such risks as is customary with companies in the same or similar
businesses operating in the same or similar locations, including commercial
general liability insurance against claims for personal injury or death
occurring upon, in or about or in connection with the use of any properties
owned, occupied or controlled by it (including the insurance required pursuant
to the Security Documents); (ii) maintain such other insurance as may be
required by law, except where the failure to do so would not have a Material
Adverse Effect; and (iii) furnish to the Administrative Agent, upon written
request, information as to the insurance carried. The Administrative Agent
acknowledges that the current insurers of the Borrowers are reasonably
acceptable to the Administrative Agent.
(b) Commercial property insurance policies maintained with
respect to any Collateral shall be endorsed or otherwise amended to include (i)
a lenders' loss payable clause, in form and substance reasonably satisfactory to
the Collateral Agent, which endorsements or amendments shall provide that the
insurer shall pay all proceeds otherwise payable to the Borrowers under the
policies with respect to the Collateral directly to the Collateral Agent or the
Canadian Agent, as the case may be, and (ii) a provision to the effect that none
of the Borrowers, the Administrative Agent, the Collateral Agent, the Canadian
Agent or any other party shall be a coinsurer (it being understood that the
inclusion of a deductible shall not be deemed to cause the Borrowers to be a
co-insurer). Commercial general liability policies shall be endorsed to name the
Collateral Agent or the Canadian Agent, as the case may be, as an additional
insured. Each such policy referred to in this paragraph also shall provide that
it shall not be canceled, modified or not renewed (i) by reason of nonpayment of
premium except upon not less than 10 days' prior written notice thereof by the
insurer to the Collateral Agent or the Canadian Agent, as the case may be
(giving the Collateral Agent or the Canadian Agent, as the case may be, the
right to cure defaults in the payment of premiums) or (ii) for any other reason
except upon not less than 30 days' prior written notice thereof by the insurer
to the Collateral Agent or the Canadian Agent, as the case may be. The Domestic
Borrowers shall deliver to the Collateral Agent and the Canadian Borrower shall
deliver to the Canadian Agent, prior to the cancellation, modification or
nonrenewal of any such policy of insurance, evidence of a replacement policy or
renewal of a policy previously delivered to the Collateral Agent or the Canadian
Agent, as the case may be,
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together with evidence satisfactory to the Collateral Agent or the Canadian
Agent, as the case may be, of payment of the premium therefor.
Section 5.08. Casualty and Condemnation.
Each Borrower will furnish to the Agents and the Lenders prompt written
notice of any property or other insured damage to any material portion of the
Collateral or the commencement of any action or proceeding for the taking of any
material portion of the Collateral under power of eminent domain or by
condemnation or similar proceeding.
Section 5.09. Books and Records; Inspection and Audit Rights; Appraisals;
Accountants; Physical Inventories.
(a) Each Borrower will, and will cause each of its Restricted
Subsidiaries (other than FNANB) to, keep proper books of record and account in
which full, true and correct entries are made of all dealings and transactions
in relation to its business and activities. Each Borrower will permit any
representatives designated by any Agent, upon reasonable prior notice (unless an
Event of Default then exists and is continuing), to visit and inspect its
properties and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested, provided that the business of the Borrowers shall not be
unreasonably disrupted.
(b) Each Borrower will, and will cause each of its Restricted
Subsidiaries (other than FNANB) to, from time to time upon the reasonable
request of the Collateral Agent or the Canadian Agent, as the case may be, or
the Required Lenders through the Administrative Agent or the Canadian Agent, as
applicable, permit any Agent or professionals (including investment bankers,
consultants, accountants, lawyers and appraisers) retained by the Agents to
conduct appraisals, commercial finance examinations and other evaluations,
including, without limitation, of (i) the Borrowers' practices in the
computation of the Borrowing Base and (ii) the assets included in the Borrowing
Base and related financial information such as, but not limited to, sales, gross
margins, payables, accruals and reserves, and pay the reasonable fees and
expenses of the Agents or such professionals with respect to such evaluations
and appraisals. Notwithstanding the foregoing, the Agents and the Borrowers
acknowledge and agree that so long as no Default or Event of Default has
occurred and is continuing (during the continuation of which the Borrowers shall
pay the costs of all appraisals and commercial finance examinations undertaken
by the Agents), the Borrowers shall only be obligated to reimburse the Agents
for one (1) inventory appraisal and one (1) commercial finance examination
during each fiscal year of the Borrowers, provided that nothing contained in
this sentence shall limit the right of the Agents to undertake additional
appraisals and commercial finance examinations at their expense if no Default or
Event of Default then exists, and provided further that the Canadian Agent shall
not undertake any appraisals or commercial finance examinations with respect to
any Collateral owned by the Canadian Borrower unless an Event of Default has
occurred and is continuing. Any appraisal of the Collateral shall be conducted
using a methodology consistent with the
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methodology used in the immediately preceding appraisal unless otherwise agreed
by the Administrative Agent and the Lead Borrower.
(c) The Borrowers shall, at all times, retain independent
certified public accountants who are nationally recognized or are otherwise
reasonably satisfactory to the Administrative Agent and shall instruct such
accountants to cooperate with, and be available to, the Administrative Agent or
its representatives to discuss the Borrowers' financial performance, financial
condition, operating results, controls, and such other matters, within the scope
of the retention of such accountants, as may be raised by the Administrative
Agent.
(d) The Borrowers, at their own expense, shall cause not less
than one (1) physical inventory to be undertaken in each twelve (12) month
period during which this Agreement is in effect conducted by such inventory
takers as are reasonably satisfactory to the Collateral Agent or the Canadian
Agent, as the case may be, and the Lead Borrower and following such methodology
as is consistent with the methodology used in the immediately preceding
inventory or as otherwise may be reasonably satisfactory to the Collateral Agent
or the Canadian Agent, as the case may be, and the Lead Borrower. The Collateral
Agent or the Canadian Agent, as the case may be, at the expense of the
Borrowers, may participate in and/or observe each scheduled physical count of
Inventory which is undertaken on behalf of any Borrower. The Lead Borrower,
within seventy-five (75) days following the completion of such inventory, shall
provide the Collateral Agent or the Canadian Agent, as the case may be, with a
reconciliation of the results of each such inventory (as well as of any other
physical inventory undertaken by any Borrower) and shall post such results to
the Borrowers' stock ledger and, as applicable to the Borrowers' other financial
books and records.
Section 5.10. Compliance with Laws.
Each Borrower will, and will cause each of its Subsidiaries to, comply with
all laws, rules, regulations and orders of any Governmental Authority applicable
to it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
Section 5.11. Use of Proceeds and Letters of Credit.
The proceeds of Loans made hereunder and Letters of Credit issued hereunder
will be used only (a) to refinance Indebtedness due to the existing lenders, (b)
to finance the acquisition of working capital assets of the Borrowers, including
the purchase of inventory and equipment, in each case in the ordinary course of
business, (c) to finance Capital Expenditures of the Borrowers, and (d) for
general corporate purposes, including in connection with transactions not
otherwise prohibited by this Agreement. No part of the proceeds of any Loan will
be used, whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Board, including Regulations U and X.
Section 5.12. Future Subsidiaries.
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Upon the formation or acquisition, after the Closing Date, of any
Restricted Subsidiary of any Borrower (which Restricted Subsidiary owns or has
an interest in any Inventory or proceeds thereof) or upon the transfer after the
Closing Date by any Borrower of any interest in any Inventory or the proceeds
thereof to a Subsidiary of a Borrower (other than FNANB) or if a Subsidiary
acquires any Inventory after the Closing Date, such Subsidiary shall, at the
request of the Administrative Agent, execute and deliver a joinder to this
Agreement and the other Loan Documents as an additional "borrower" or a Guaranty
of the Obligations and the Other Liabilities and a security agreement granting a
Lien in such of its assets of the same nature and type as constitute Collateral,
all such documents to be in form and substance satisfactory to the Agents.
Nothing contained in this Section shall permit any Borrower to form or acquire
any Subsidiary which is otherwise prohibited by this Agreement.
Section 5.13. Further Assurances.
Each Borrower and its Subsidiaries will execute any and all further
documents, financing statements, agreements and instruments, and take all such
further actions (including the filing and recording of financing statements and
other documents), that may be required under any Applicable Law, or which any
Agent or the Required Lenders may reasonably request, to effectuate the
transactions contemplated by the Loan Documents or to grant, preserve, protect
or perfect the Liens created or intended to be created by the Security Documents
or the validity or priority of any such Lien, all at the expense of the
Borrowers. The Borrowers also agree to provide to the Agents, from time to time
upon request, evidence reasonably satisfactory to the Agents as to the
perfection and priority of the Liens created or intended to be created by the
Security Documents.
Article VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees payable hereunder have been paid in full and
all Letters of Credit have expired or terminated and all L/C Disbursements shall
have been reimbursed, each Borrower (provided that the Canadian Borrower
covenants and agrees only for itself and its Subsidiaries and shall not be
liable for any failure by any Domestic Borrower's failure to comply with any
covenant on its part) covenants and agrees with the Agents and the Lenders that:
Section 6.01. Indebtedness and Other Obligations.
The Borrowers will not, and will not permit any of their respective
Restricted Subsidiaries (other than FNANB) to, create, incur, assume or permit
to exist any Indebtedness, except:
(a) Indebtedness created under the Loan Documents;
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(b) Indebtedness set forth in Schedule 6.01 and extensions,
renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof or result in an earlier maturity date or
decreased weighted average life thereof;
(c) Indebtedness of any Borrower to any other Borrower
otherwise permitted hereunder;
(d) Indebtedness of any Borrower or Restricted Subsidiary to
finance the acquisition of any fixed or capital assets, including Capital Lease
Obligations, Synthetic Leases, any such Indebtedness assumed in connection with
the acquisition of any such assets or assumed in connection with any other
acquisition permitted under Section 6.04 or secured by a Lien on any such assets
prior to the acquisition thereof, and extensions, renewals and replacements of
any such Indebtedness that do not increase the outstanding principal amount
thereof or result in an earlier maturity date or decreased weighted average life
thereof, provided that the aggregate principal amount of Indebtedness permitted
by this clause (iv) shall not exceed $150,000,000 at any time outstanding;
(e) Indebtedness under Hedging Agreements with any Lender or an
Affiliate of a Lender;
(f) Indebtedness arising from any sale and leaseback of Real
Estate;
(g) Indebtedness in connection with Permitted Securitization
Transactions; and
(h) other unsecured Indebtedness in an aggregate principal
amount not exceeding $300,000,000 at any time outstanding, provided that if any
such Indebtedness exceeds $25,000,000 in the aggregate at any time outstanding,
the terms of such Indebtedness in excess of such amount shall be reasonably
acceptable to the Administrative Agent.
Section 6.02. Liens.
The Borrowers will not create, incur, or assume any Lien on any property or
asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Liens created under the Loan Documents;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of any Borrower set forth
in Schedule 6.02, provided that (i) such Lien shall not apply to any other
property or asset of any Borrower and (ii) such Lien shall secure only those
obligations that it secures as of the Closing Date, and
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extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(d) Liens on fixed or capital assets acquired by any Borrower, provided
that (i) such Liens secure Indebtedness permitted by Section 6.01(d), (ii) such
Liens and the Indebtedness secured thereby are incurred prior to or within 90
days after such acquisition or the completion of such construction or
improvement, (iii) the Indebtedness secured thereby does not exceed 100% of the
cost of acquiring such fixed or capital assets and (iv) such Liens shall not
apply to any other property or assets of the Borrowers;
(e) Liens on Real Estate to secure Indebtedness permitted pursuant to
Section 6.01(d) hereof; and
(f) Other Liens on assets (other than Inventory, Accounts and the proceeds
thereof) or tax Liens securing obligations not exceeding $5,000,000 at any time
outstanding.
After any Borrower obtains knowledge of an Lien which has been involuntarily
attached to its assets or properties, the Borrowers shall use their best efforts
to, and shall promptly seek, to cause the release or termination thereof.
Section 6.03. Fundamental Changes.
(a) The Borrowers and their respective Restricted Subsidiaries
will not merge into or consolidate or amalgamate with any other Person, or
permit any other Person to merge into or consolidate with it, or liquidate or
dissolve, except that, if at the time thereof and immediately after giving
effect thereto, no Default shall have occurred and be continuing, (i) any
Subsidiary may merge into a Borrower in a transaction in which a Borrower is the
surviving corporation, (ii) the Lead Borrower may merge with any other Person as
long as the Lead Borrower is the surviving corporation, (iii) any Subsidiary
that is not a Borrower may merge into any other Subsidiary that is not a
Borrower, provided that any such merger involving a Person that is not a wholly
owned Subsidiary immediately prior to such merger shall not be permitted unless
also permitted by Section 6.04, (iv) FNANB may be liquidated and dissolved, and
(v) the Borrowers and their Restricted Subsidiaries may consummate through
mergers or consolidations any acquisition permitted under Section 6.04(e) or (f)
or any disposition of assets permitted under Section 6.05.
(b) The Borrowers and their respective Restricted Subsidiaries
will not engage to any material extent in any business other than businesses of
the type conducted by the Borrowers and their Restricted Subsidiaries on the
date of execution of this Agreement and businesses reasonably related, ancillary
or complementary thereto. Without limiting the foregoing, none of InterTan,
Inc., Ventoux International, Inc. and Tourmarlet, Corp. shall own any assets of
the type which would otherwise constitute Collateral, unless compliance is first
made with the provisions of Section 5.12 hereof.
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Section 6.04. Investments, Loans, Advances, Guarantees and Acquisitions.
The Borrowers and their respective Restricted Subsidiaries will not
purchase, hold or acquire (including pursuant to any merger with any Person that
was not a wholly owned Subsidiary prior to such merger) any capital stock,
evidences of indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, guarantee any obligations of, or make or permit to exist
any investment or any other interest in, any other Person, or purchase or
otherwise acquire (in one transaction or a series of transactions) any assets of
any other Person constituting a business unit (each of the foregoing, an
"Investment"), except for:
(a) Permitted Investments;
(b) Investments existing on the Closing Date, and set forth on
Schedule 6.04, to the extent such investments would not be permitted under any
other clause of this Section;
(c) Loans, advances or capital contributions by any Borrower to
any other Borrower;
(d) Loans, advances or capital contributions under the
Securitization Revolver or otherwise made in connection with a Permitted
Securitization Transaction or in accordance with any existing obligations or
agreements as of the Closing Date;
(e) Permitted Acquisitions and the LEI Acquisition;
(f) Investments consisting of the purchase or other acquisition
(in one transaction or a series of transactions) of any assets or capital stock
of any other Person constituting a business unit, the aggregate consideration
for which purchase or acquisition does not exceed $5,000,000 for any single
acquisition or $25,000,000 in the aggregate for all such acquisitions after the
Closing Date, provided that no Default or Event of Default then exists or would
arise therefrom;
(g) Investments in joint ventures in an amount not to exceed
$25,000,000 at any time outstanding;
(h) Investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(i) Purchases, redemptions or acquisitions of capital stock
involving a Restricted Payment permitted pursuant to Section 6.06;
(j) loans or advances to employees for the purpose of travel,
entertainment or relocation in the ordinary course of business; and
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(k) Other Investments (excluding Investments consisting of the
purchase or other acquisition (in one transaction or a series of transactions)
any assets or capital stock of any other Person constituting a business unit)
not to exceed $50,000,000 in the aggregate during any fiscal year.
Section 6.05. Asset Sales.
(a) The Borrowers and their respective Restricted Subsidiaries
(other than FNANB) will not sell, transfer, lease or otherwise dispose of any
asset, including any capital stock (other than capital stock of the Lead
Borrower), nor will the Borrowers (other than the Lead Borrower) issue any
additional shares of its capital stock or other ownership interest in such
Borrower, except:
(i) (A) sales of Inventory and other assets in the
ordinary course of business; and
(ii) sales, transfers and dispositions among the
Borrowers and their respective Subsidiaries (excluding,
however, any sales, transfers and dispositions of Inventory or
proceeds thereof, from any Borrower except to another
Borrower), provided that any such sales, transfers or
dispositions involving a Subsidiary that is not a Borrower
shall be made in compliance with Section 6.07; and
(iii) sales and disposition of Subsidiaries of the Lead
Borrower which are not Subsidiary Borrowers, provided that no
Default or Event of Default then exists or would arise
therefrom; and
(iv) sales and transfers made pursuant in connection
with Permitted Securitization Transactions; and
(v) other sales, transfers, or dispositions of assets
not in the ordinary course of business in connection with any
store closings provided that (x) no Default or Event of Default
then exists or would arise therefrom, and (y) no such sale,
transfer or disposition shall be made if, after giving effect
thereto, the aggregate number of remaining stores (including
new or relocated stores) of the Borrowers operating in the
ordinary course of business would be less than seventy-five
percent (75%) of the number of stores of the Borrowers in
existence as of the Closing Date, and (z) if Capped
Availability immediately prior, or after giving effect, to such
sale would be less than $100,000,000, the purchase price for
any Inventory and Accounts so sold, transferred or disposed of
shall be at least equal to the amounts available to be advanced
thereon under the Borrowing Base; and
(vi) other sales, transfers, or dispositions of assets
not constituting Collateral, provided that (x) no Default or
Event of Default then exists or would
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arise therefrom, and (y) such sales, transfers or dispositions
shall not exceed $50,000,000 in the aggregate in any fiscal
year of the Borrowers.
provided that all sales, transfers, leases and other dispositions permitted
hereby (other than sales, transfers and other disposition permitted under clause
(ii)) shall be made at arm's length and for fair value and with respect to
Inventory and Accounts, solely for cash consideration (which term shall include
credit card sales).
Section 6.06. Restricted Payments; Certain Payments of Indebtedness.
(a) The Borrowers will not, and will not permit any Restricted
Subsidiaries to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, except as long as no Default or Event of
Default exists or would arise therefrom (i) the Borrowers may declare and pay
dividends with respect to their capital stock payable solely in additional
shares of their common stock, (ii) the Restricted Subsidiaries of the Borrowers
may declare and pay cash dividends with respect to their capital stock, (iii)
the Borrowers may make Restricted Payments in an amount not to exceed
$75,000,000 in any fiscal year, and (iv) the Borrowers may make other Restricted
Payments as long as, after giving effect thereto, Capped Availability is at
least $100,000,000.
(b) The Borrowers will not at any time, and will not permit any
of their Restricted Subsidiaries to make or agree to pay or make, directly or
indirectly, any payment or other distribution (whether in cash securities or
other property) of or in respect of principal of or interest on any
Indebtedness, or any payment or other distribution (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancellation or termination
of any Indebtedness, except:
(i) payment of regularly scheduled interest and
principal payments as and when due in respect of any
Indebtedness permitted under Section 6.01; and
(ii) refinancings of Indebtedness described in clause
(i), above, to the extent permitted by Section 6.01; and
(iii) other payments in respect of Indebtedness not to
exceed $15,000,000 in the aggregate in any fiscal year of the
Borrowers, provided that no Default or Event of Default then
exists or would arise therefrom.
Section 6.07. Transactions with Affiliates.
The Borrowers will not at any time sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates (other than FNANB or any Special Purpose Entity), except (a)
transactions in the ordinary course of business that are at prices and on terms
and conditions not less favorable to the Borrowers than could be obtained on an
arm's-
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length basis from unrelated third parties, (b) transactions between or among the
Borrowers not involving any other Affiliate, which would not otherwise violate
the provisions of the Loan Documents, and (c) transactions otherwise permitted
hereunder.
Section 6.08. Amendment of Material Documents.
The Borrowers will not, and will not permit any Subsidiary to, amend,
modify or waive any of its rights under its certificate of incorporation,
by-laws or other organizational documents, in each case to the extent that such
amendment, modification or waiver would be materially adverse to the interests
of the Lenders.
Section 6.09. Fiscal Year.
The Borrowers shall not change their fiscal year without the prior written
consent of the Administrative Agent, which consent shall not be unreasonably
withheld.
Article VII
Events of Default
Section 7.01. Events of Default.
If any of the following events ("Events of Default") shall occur:
(a) the Borrowers shall fail to pay any principal of any Loan
or any reimbursement obligation in respect of any L/C Disbursement when and as
the same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) the Borrowers shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement or any other Loan Document, within
five (5) Business Days when the same shall become due and payable;
(c) any representation or warranty made or deemed made by or on
behalf of any Borrower in or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in
connection with any Loan Document or any amendment or modification thereof or
waiver thereunder, shall prove to have been incorrect in any material respect
when made or deemed made;
(d) the Borrowers shall fail to observe or perform any
covenant, condition or agreement contained:
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(i) in Section 2.23(f), Section 2.23(i), Section
2.23(j), Section 5.02(a), Section 5.07, Section 5.09, or
Section 5.11 or in Article VI; and
(ii) in Section 5.01(b)(i), and such failure shall
continue unremedied for a period of 5 days after notice thereof
from the Administrative Agent to the Lead Borrower;
(e) any Borrower shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b), (c), or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Lead Borrower (which notice will be given at the
request of any Lender);
(f) any Borrower shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material
Indebtedness when and as the same shall become due and payable (after giving
effect to the expiration of any grace or cure period set forth therein) and the
holder of such Material Indebtedness shall have accelerated the time for, or
demanded, payment thereof;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any such Material Indebtedness or any trustee or agent on
its or their behalf to cause any such Material Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof, prior to
its scheduled maturity (other than on account of the sale of assets otherwise
permitted under this Agreement which secure such Material Indebtedness);
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of any Borrower or its debts, or of a substantial part
of its assets, under the Bankruptcy Code or any other insolvency, receivership,
liquidation, winding up or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, interim receiver,
receiver-manager, monitor, liquidator, conservator or similar official for any
Borrower or for a substantial part of its assets, and, in any such case, such
proceeding or petition shall continue undismissed for 60 days or an order or
decree approving or ordering any of the foregoing shall be entered and continues
unstayed and in effect for 30 days;
(i) any Borrower shall (i) voluntarily commence any proceeding
or file any petition seeking liquidation, reorganization or other relief under
the Bankruptcy Code or any other insolvency, receivership, liquidation, winding
up or similar law now or hereafter in effect, (ii) consent to the institution
of, or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, interim
receiver, receiver-manager,
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monitor, liquidator, conservator or similar official for any Borrower or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) any Borrower shall become unable, admit in writing its
inability or fail generally to pay its debts as they become due;
(k) one or more uninsured judgments for the payment of money in
an aggregate amount in excess of $50,000,000 shall be rendered against any
Borrower or any combination thereof and the same shall remain undischarged for a
period of 60 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to attach or
levy upon any material assets of any Borrower to enforce any such judgment;
(l) (i) any challenge in any legal proceeding by or on behalf
of any Borrower to the validity of any Loan Document or the applicability or
enforceability of any Loan Document strictly in accordance with the subject Loan
Document's terms or which seeks to void, avoid, limit, or otherwise adversely
affect any security interest created by or in any Loan Document or any payment
made pursuant thereto.
(ii) any challenge in any legal proceeding by or on behalf
of any other Person to the validity of any Loan Document or the applicability or
enforceability of any Loan Document strictly in accordance with the subject Loan
Document's terms or which seeks to void, avoid, limit, or otherwise adversely
affect any security interest created by or in any Loan Document or any payment
made pursuant thereto, in each case, as to which an order or judgment has been
entered adverse to the Agents and the Lenders.
(iii) any Lien purported to be created under any Security
Document shall cease to be, or shall be asserted by any Borrower not to be, a
valid, perfected and opposable Lien on any Collateral, with the priority
required by the applicable Security Document, except as a result of the sale or
other disposition of the applicable Collateral in a transaction permitted under
the Loan Documents;
(m) a Change in Control shall occur;
(n) an ERISA Event shall have occurred that when taken together
with all other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrowers in an aggregate amount exceeding
$50,000,000;
(o) the occurrence of any uninsured loss to any material
portion of the Collateral;
(p) the indictment of, or institution of any legal process or
proceeding against, any Borrower, under any federal, state, provincial,
municipal, and other civil or criminal statute,
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rule, regulation, order, or other requirement having the force of law where the
relief, penalties, or remedies sought or available include the forfeiture of any
material property of any Borrower and/or the imposition of any stay or other
order, the effect of which could reasonably be to restrain in any material way
the conduct by the Borrowers, taken as a whole, of their business in the
ordinary course, and in each case where such indictment or institution of legal
process could reasonably be expected to have a Material Adverse Effect;
(q) except as otherwise permitted hereunder, the determination
by any Borrower, whether by vote of such Borrower's board of directors or
otherwise to: suspend the operation of such Borrower's business in the ordinary
course, liquidate all or a substantial portion of such Borrower's assets or
store locations, or employ an agent or other third party to conduct any
so-called store closing, store liquidation or "Going-Out-Of-Business" sales
relating to all or a substantial portion of such Borrower's assets or store
locations;
then, and in every such event (other than an event with respect to any Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Lead Borrower, take
either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable
in whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrowers accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrowers; and (iii) require the Borrowers to furnish cash collateral in an
amount equal to 103% of the Letter of Credit Outstandings, and in case of any
event with respect to any Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrowers accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrowers.
Without limiting the foregoing, in every such event (other than an event
with respect to any Borrower described in clause (h) or (i) of this Article),
and at any time thereafter during the continuance of such event, the Canadian
Agent may, and at the request of the Required Lenders shall, by notice to the
Canadian Borrower, take either or both of the following actions, at the same or
different times: (i) terminate the Canadian Commitments, and thereupon the
Canadian Commitments shall terminate immediately, and (ii) declare the Canadian
Liabilities then outstanding to be due and payable in whole (or in part, in
which case any principal not so declared to be due and payable may thereafter be
declared to be due and payable), and thereupon the principal of the Canadian
Liabilities so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Canadian Borrower accrued
hereunder,
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shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrowers;
and (iii) require the Canadian Borrower to furnish cash collateral in an amount
equal to 103% of the Letter of Credit Outstandings of the Canadian Borrower, and
in case of any event with respect to any Borrower described in clause (h) or (i)
of this Article, the Canadian Commitments shall automatically terminate and the
principal of the Canadian Liabilities then outstanding, together with accrued
interest thereon and all fees and other obligations of the Canadian Borrower
accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrowers.
Section 7.02. When Continuing.
For all purposes under this Agreement, each Default and Event of Default
that has occurred shall be deemed to be continuing at all times thereafter
unless it either (a) is cured or corrected, or (b) is waived in writing by the
Lenders in accordance with Section 9.02.
Section 7.03. Remedies on Default
In case any one or more of the Events of Default shall have occurred and be
continuing, and whether or not the maturity of the Loans shall have been
accelerated pursuant hereto, the Administrative Agent may proceed to protect and
enforce its rights and remedies under this Agreement, the Notes or any of the
other Loan Documents by suit in equity, action at law or other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained in this Agreement and the other Loan Documents or any instrument
pursuant to which the Obligations are evidenced, and, if such amount shall have
become due, by declaration or otherwise, proceed to enforce the payment thereof
or any other legal or equitable right of the Agents or the Lenders. No remedy
herein is intended to be exclusive of any other remedy and each and every remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or any
other provision of law and the Canadian Agent may proceed to protect and enforce
its rights and remedies under this Agreement, the Notes from the Canadian
Borrower or any of the other Loan Documents by suit in equity, action at law or
other appropriate proceeding, whether for the specific performance of any
covenant or agreement contained in this Agreement and the other Loan Documents
or any instrument pursuant to which the Canadian Liabilities are evidenced, and,
if such amount shall have become due, by declaration or otherwise, proceed to
enforce the payment thereof or any other legal or equitable right of the
Canadian Agent or the Lenders to whom any Canadian Liabilities are owing.
Section 7.04. Application of Proceeds
After the earlier of (a) the occurrence of an Event of Default and
acceleration of the Obligations, or (b) the occurrence of an Event of Default
under Section 7.01(h), Section 7.01(i) or Section 7.01(q) hereof, all proceeds
realized from any Borrower or on account of any
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Collateral shall be applied in the manner set forth in Section 6.03 of the
Security Agreement. All amounts required to be applied to Loans hereunder (other
than Swingline Loans) shall be applied ratably in accordance with each Lender's
Domestic Commitment Percentage or Canadian Commitment Percentage, as applicable.
Article VIII
The Agents
Section 8.01. Administration by Administrative Agent.
(a) Each Lender, the Collateral Agent and the Issuing Bank
hereby irrevocably designate FRG as Administrative Agent under this Agreement
and the other Loan Documents. The general administration of the Loan Documents
shall be by the Administrative Agent. The Lenders, the Collateral Agent and the
Issuing Bank each hereby irrevocably authorizes the Administrative Agent (i) to
enter into the Loan Documents to which it is a party and (ii) at its discretion,
to take or refrain from taking such actions as agent on its behalf and to
exercise or refrain from exercising such powers under the Loan Documents and the
Notes as are delegated by the terms hereof or thereof, as appropriate, together
with all powers reasonably incidental thereto. The Administrative Agent shall
have no duties or responsibilities except as set forth in this Agreement and the
remaining Loan Documents, nor shall it have any fiduciary relationship with any
Lender, and no implied covenants, responsibilities, duties, obligations, or
liabilities shall be read into the Loan Documents or otherwise exist against the
Administrative Agent.
(b) Each Lender, the Issuing Bank and each Secured Party that
is owed any Canadian Liabilities hereby irrevocably designate Bank of America,
N.A. [acting through its Canada branch] as the Canadian Agent under this
Agreement and the other Loan Documents. The general administration of the Loan
Documents with respect to the Canadian Borrower shall be by the Canadian Agent.
The Lenders, the Issuing Bank and each Secured Party that is owed any Canadian
Liabilities each hereby irrevocably authorizes the Canadian Agent (i) to enter
into the Loan Documents to which it is a party and (ii) at its discretion, to
take or refrain from taking such actions as agent on its behalf and to exercise
or refrain from exercising such powers under the Loan Documents and the Notes as
are delegated by the terms hereof or thereof, as appropriate, together with all
powers reasonably incidental thereto. The Canadian Agent shall have no duties or
responsibilities except as set forth in this Agreement and the remaining Loan
Documents, nor shall it have any fiduciary relationship with any such Secured
Party, and no implied covenants, responsibilities, duties, obligations, or
liabilities shall be read into the Loan Documents or otherwise exist against the
Canadian Agent.
Section 8.02. The Collateral Agent.
(a) Each Lender, the Administrative Agent and the Issuing Bank
hereby irrevocably (i) designate FRG as Collateral Agent under this Agreement
and the other Loan
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Documents, (ii) authorize the Collateral Agent to enter into the Collateral
Documents and the other Loan Documents to which it is a party and to perform its
duties and obligations thereunder, together with all powers reasonably
incidental thereto, and (iii) agree and consent to all of the provisions of the
Security Documents. All Collateral shall be held or administered by the
Collateral Agent (or its duly-appointed agent) for its benefit and for the
ratable benefit of the other Secured Parties. Any proceeds received by the
Collateral Agent from the foreclosure, sale, lease or other disposition of any
of the Collateral and any other proceeds received pursuant to the terms of the
Security Documents or the other Loan Documents shall be paid over to the
Administrative Agent for application as provided in Section 2.20, Section 2.24
or Section 7.04, as applicable. The Collateral Agent shall have no duties or
responsibilities except as set forth in this Agreement and the remaining Loan
Documents, nor shall it have any fiduciary relationship with any Lender, and no
implied covenants, responsibilities, duties, obligations, or liabilities shall
be read into the Loan Documents or otherwise exist against the Collateral Agent.
(b) Each Lender, the Issuing Bank and each Secured Party that
is owed any Canadian Liabilities hereby irrevocably designate Bank of America,
N.A. [acting through its Canada branch] as the Canadian Agent under this
Agreement and the other Loan Documents with respect to the Collateral
hypothecated and granted as security by the Canadian Borrower. The Lenders, the
Issuing Bank and each Secured Party that is owed any Canadian Liabilities each
hereby irrevocably authorizes the Canadian Agent (i) to enter into the Security
Documents to which it is a party and to perform its duties and obligations
thereunder, together with all powers reasonably incidental thereto, and (ii)
agree and consent to all of the provisions of the Security Documents. All
Collateral from the Canadian Borrower shall be held or administered by the
Canadian Agent (or its duly-appointed agent) for its benefit and for the ratable
benefit of the other Secured Parties who are owed any Canadian Liabilities. Any
proceeds received by the Canadian Agent from the foreclosure, sale, lease or
other disposition of any of the Collateral from the Canadian Borrower and any
other proceeds received pursuant to the terms of the Security Documents or the
other Loan Documents from the Canadian Borrower shall be applied as provided in
Section 2.20, Section 2.24 or Section 7.04, as applicable. The Canadian Agent
shall have no duties or responsibilities except as set forth in this Agreement
and the remaining Loan Documents, nor shall it have any fiduciary relationship
with any Lender, and no implied covenants, responsibilities, duties,
obligations, or liabilities shall be read into the Loan Documents or otherwise
exist against the Canadian Agent.
(c) Without limiting the generality of the foregoing, for the
purposes of creating a solidarite active in accordance with article 1541 of the
Civil Code of Quebec between each Secured Party that is owed any Canadian
Liabilities, taken individually, on the one hand, and the Canadian Agent, on the
other hand, each of the Canadian Borrower and each such Secured Party
acknowledge and agree with the Canadian Agent that such Secured Party and the
Agent are hereby conferred the legal status of solidary creditors of the
Canadian Borrower in respect of all Obligations and Canadian Liabilities,
present and future, owed by the Canadian Borrower to each such Secured Party and
the Canadian Agent (collectively, for the purposes of this paragraph, the
"solidary claim"). Accordingly, but subject (for the avoidance of doubt) to
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article 1542 of the Civil Code of Quebec, the Canadian Borrower is irrevocably
bound towards the Canadian Agent and each such Secured Party in respect of the
entire solidary claim of the Canadian Agent and such Secured Party. As a result
of the foregoing, the Canadian Borrower confirms and agrees that subject to
subparagraph (b) above, the rights of the Canadian Agent and each of its Secured
Parties who are owed Canadian Liabilities from time to time a party to this
Agreement by way of assignment or otherwise are solidary and as regards the
Obligations and the Canadian Liabilities owing from time to time to each such
Secured Party, each of the Canadian Agent and such Secured Party is entitled,
when permitted pursuant to Section 7.02 to: (i) demand payment of all
outstanding amounts from time to time in respect of the Canadian Liabilities;
(ii) exact the whole performance of such Canadian Liabilities from the Canadian
Borrower; (iii) benefit from the Canadian Agent's Liens and the Collateral in
respect of such Canadian Liabilities; (iv) give a full acquittance of such
Canadian Liabilities (each Secured Party that is owed Canadian Liabilities
hereby agreeing to be bound by any such acquittance); and (v) exercise all
rights and recourses under the Loan Documents with respect to those Canadian
Liabilities. The Canadian Liabilities of the Canadian Borrower will be secured
by the Canadian Agent's Liens and the Collateral and the Canadian Agent and the
Secured Parties who are owed Canadian Liabilities will have a solidary interest
therein.
Section 8.03. Sharing of Excess Payments.
Each of the Lenders, the Agents and the Issuing Bank agrees that if it
shall, through the exercise of a right of banker's lien, setoff or counterclaim
against the Borrowers, including, but not limited to, a secured claim under
Section 506 of the Bankruptcy Code or other security or interest arising from,
or in lieu of, such secured claim and received by such Lender, any Agent or the
Issuing Bank under any applicable bankruptcy, insolvency or other similar law,
or otherwise, obtain payment in respect of the Obligations owed it (an "excess
payment") as a result of which such Lender, such Agent or the Issuing Bank has
received payment of any Loans or other Obligations outstanding to it in excess
of the amount that it would have received if all payments at any time applied to
the Loans and other Obligations had been applied in the order of priority set
forth in Section 7.04, then such Lender, Agent or the Issuing Bank shall
promptly purchase at par (and shall be deemed to have thereupon purchased) from
the other Lenders, such Agent and the Issuing Bank, as applicable, a
participation in the Loans and Obligations outstanding to such other Persons, in
an amount determined by the Administrative Agent in good faith as the amount
necessary to ensure that the economic benefit of such excess payment is
reallocated in such manner as to cause such excess payment and all other
payments at any time applied to the Loans and other Obligations to be
effectively applied in the order of priority set forth in Section 7.04 pro rata
in proportion to its Commitment Percentages, Domestic Commitment Percentages, or
Canadian Commitment Percentages, as applicable; provided, that if any such
excess payment is thereafter recovered or otherwise set aside such purchase of
participations shall be correspondingly rescinded (without interest). The
Borrowers expressly consent to the foregoing arrangements and agree that any
Lender, any Agent or the Issuing Bank holding (or deemed to be holding) a
participation in any Loan or other Obligation may exercise any and all rights of
banker's lien, setoff or counterclaim with respect to any and all moneys owing
by such Borrower
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to such Lender, such Agent or the Issuing Bank as fully as if such Lender, Agent
or the Issuing Bank held a Note and was the original obligee thereon, in the
amount of such participation.
Section 8.04. Agreement of Required Lenders.
(a) Upon any occasion requiring or permitting an approval,
consent, waiver, election or other action on the part of only the Required
Lenders, action shall be taken by the Agents for and on behalf or for the
benefit of all Lenders upon the direction of the Required Lenders, and any such
action shall be binding on all Lenders, and (ii) upon any occasion requiring or
permitting an approval, consent, waiver, election or other action on the part of
the Required Supermajority Lenders, action shall be taken by the Agents for and
on behalf or for the benefit of all Lenders upon the direction of the Required
Supermajority Lenders and any such action shall be binding on all Lenders. No
amendment, modification, consent, or waiver shall be effective except in
accordance with the provisions of Section 9.02.
(b) Upon the occurrence of an Event of Default, the Agents
shall (subject to the provisions of Section 9.02) take such action with respect
thereto as may be reasonably directed by the Required Lenders; provided that
unless and until the Agents shall have received such directions, the Agents may
(but shall not be obligated to) take such action as they shall deem advisable in
the best interests of the Lenders. In no event shall the Agents be required to
comply with any such directions to the extent that the Agents believe that the
Agents' compliance with such directions would be unlawful.
Section 8.05. Liability of Agents.
(a) Each of the Agents, when acting on behalf of the Lenders
and the Issuing Bank, may execute any of its respective duties under this
Agreement by or through any of its respective officers, agents and employees,
and none of the Agents nor their respective directors, officers, agents or
employees shall be liable to the Lenders or the Issuing Bank or any of them for
any action taken or omitted to be taken in good faith, or be responsible to the
Lenders or the Issuing Bank or to any of them for the consequences of any
oversight or error of judgment, or for any loss, except to the extent of any
liability imposed by law by reason of such Agent's own gross negligence or
willful misconduct. The Agents and their respective directors, officers, agents
and employees shall in no event be liable to the Lenders or the Issuing Bank or
to any of them for any action taken or omitted to be taken by them pursuant to
instructions received by them from the Required Lenders, or Required
Supermajority Lenders, as applicable, or in reliance upon the advice of counsel
selected by it. Without limiting the foregoing, none of the Agents, nor any of
their respective directors, officers, employees, or agents (A) shall be
responsible to any Lender or the Issuing Bank for the due execution, validity,
genuineness, effectiveness, sufficiency, opposability or enforceability of, or
for any recital, statement, warranty or representation in, this Agreement, any
Loan Document or any related agreement, document or order, or (B) shall be
required to ascertain or to make any inquiry concerning the performance or
observance by any Borrower of any of the terms, conditions, covenants, or
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agreements of this Agreement or any of the Loan Documents, or (C) shall be
responsible to any Lender or the Issuing Bank for the state or condition of any
properties of the Borrowers or any other obligor hereunder constituting
Collateral for the Obligations of the Borrowers hereunder or with respect to the
Other Liabilities, or any information contained in the books or records of the
Borrowers; or (D) shall be responsible to any Lender or the Issuing Bank for the
validity, enforceability, collectibility, effectiveness or genuineness of this
Agreement or any other Loan Document or any other certificate, document or
instrument furnished in connection therewith; or (E) shall be responsible to any
Lender or the Issuing Bank for the validity, priority, opposability or
perfection of any Lien securing or purporting to secure the Obligations or the
Other Liabilities or the value or sufficiency of any of the Collateral.
(b) The Agents may execute any of their duties under this
Agreement or any other Loan Document by or through any of their Affiliates,
branches or their agents or attorneys-in-fact, and shall be entitled to the
advice of counsel concerning all matters pertaining to its rights and duties
hereunder or under the Loan Documents. The Agents shall not be responsible for
the negligence or misconduct of any agents or attorneys-in-fact selected by them
with reasonable care.
(c) None of the Agents nor any of their respective directors,
officers, employees, or agents shall have any responsibility to the Borrowers on
account of the failure or delay in performance or breach by any Lender (other
than by the Agent in its capacity as a Lender) or the Issuing Bank of any of
their respective obligations under this Agreement or the Notes or any of the
Loan Documents or in connection herewith or therewith.
(d) The Agents shall be entitled to rely, and shall be fully
protected in relying, upon any notice, consent, certificate, affidavit, or other
document or writing believed by it to be genuine and correct and to have been
signed, sent or made by the proper person or persons, and upon the advice and
statements of legal counsel (including, without, limitation, counsel to the
Borrowers), independent accountants and other experts selected by the Agents.
The Agents shall be fully justified in failing or refusing to take any action
under this Agreement or any other Loan Document unless they shall first receive
such advice or concurrence of the Required Lenders as they deem appropriate or
they shall first be indemnified to their satisfaction by the Lenders against any
and all liability and expense which may be incurred by them by reason of the
taking or failing to take any such action.
Section 8.06. Notice of Default.
The Agents shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless the Agents have actual
knowledge of the same or have received notice from a Lender or the Borrowers
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the Agents
obtain such actual knowledge or receives such a notice, the Agents shall give
prompt notice thereof to each of the Lenders. The Agents shall take such action
with respect to such
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Default or Event of Default as shall be reasonably directed by the Required
Lenders. Unless and until the Agents shall have received such direction, the
Agents may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to any such Default or Event of Default as they
shall deem advisable in the best interest of the Lenders.
Section 8.07. Lenders' Credit Decisions.
Each Lender acknowledges that it has, independently and without reliance
upon the Agents or any other Lender, and based on the financial statements
prepared by the Borrowers and such other documents and information as it has
deemed appropriate, made its own credit analysis and investigation into the
business, assets, operations, property, and financial and other condition of the
Borrowers and has made its own decision to enter into this Agreement and the
other Loan Documents. Each Lender also acknowledges that it will, independently
and without reliance upon the Agents or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in determining whether or not conditions precedent
to closing any Loan hereunder have been satisfied and in taking or not taking
any action under this Agreement and the other Loan Documents.
Section 8.08. Reimbursement and Indemnification.
Each Lender agrees (i) to reimburse (x) each Agent for such Lender's
Commitment Percentage of any expenses and fees incurred by such Agent for the
benefit of the Lenders or the Issuing Bank under this Agreement, the Notes and
any of the Loan Documents, including, without limitation, counsel fees and
compensation of agents and employees paid for services rendered on behalf of the
Lenders or the Issuing Bank, and any other expense incurred in connection with
the operations or enforcement thereof not reimbursed by the Borrowers and (y)
each Agent for such Lender's Commitment Percentage of any expenses of such Agent
incurred for the benefit of the Lenders or the Issuing Bank that the Borrowers
have agreed to reimburse pursuant to Section 9.03 and has failed to so reimburse
and (ii) to indemnify and hold harmless the Agents and any of their directors,
officers, employees, or agents, on demand, in the amount of such Lender's
Commitment Percentage, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses, or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against it or any of them in any way relating to or arising out
of this Agreement, the Notes or any of the Loan Documents or any action taken or
omitted by it or any of them under this Agreement, the Notes or any of the Loan
Documents to the extent not reimbursed by the Borrowers (except such as shall
result from their respective gross negligence or willful misconduct). The
provisions of this Section 8.08 shall survive the repayment of the Obligations
and the Other Liabilities and the termination of the Commitments.
Section 8.09. Rights of Agents.
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It is understood and agreed that FRG and Bank of America, N.A. [acting
through its Canada branch] shall have the same rights and powers hereunder
(including the right to give such instructions) as the other Lenders and may
exercise such rights and powers, as well as its rights and powers under other
agreements and instruments to which it is or may be party, and engage in other
transactions with the Borrowers, as though it were not the Administrative Agent,
the Collateral Agent, or the Canadian Agent, respectively, of the Lenders under
this Agreement. Without limiting the foregoing, the Agents and their Affiliates
may accept deposits from, lend money to, and generally engage in any kind of
commercial or investment banking, trust, advisory or other business with the
Borrowers and their Subsidiaries and Affiliates as if it were not the Agent
hereunder.
Section 8.10. Notice of Transfer.
The Agents may deem and treat a Lender party to this Agreement as the owner
of such Lender's portion of the Loans for all purposes, unless and until, and
except to the extent, an Assignment and Acceptance shall have become effective
as set forth in Section 9.05(b).
Section 8.11. Successor Agent
Any Agent may resign at any time by giving fifteen (15) Business Days'
written notice thereof to the Lenders, the Issuing Bank, the other Agents and
the Lead Borrower. Upon any such resignation of any Agent, the Required Lenders
shall have the right to appoint a successor Agent, which so long as there is no
Default or Event of Default shall be reasonably satisfactory to the Lead
Borrower (whose consent shall not be unreasonably withheld or delayed). If no
successor Agent shall have been so appointed by the Required Lenders and shall
have accepted such appointment, within 30 days after the retiring Agent's giving
of notice of resignation, the retiring Agent may, on behalf of the Lenders, the
other Agents and the Issuing Bank, appoint a successor Agent which shall be (i)
with respect to the Administrative Agent or the Collateral Agent, a commercial
bank (or Affiliate thereof) organized under the laws of the United States of
America or of any State thereof and having a combined capital and surplus of a
least $100,000,000, (ii) with respect to the Canadian Agent, a commercial bank
or institutional lender (or branch or Affiliate thereof) resident in Canada (for
purposes of the Income Tax Act (Canada) or otherwise not subject to withholding
taxes on any interest paid by a resident of Canada) and having a combined
capital and surplus of at least $100,000,000 or (iii) in either case, a Person
capable of complying with all of the duties of such Agent (and the Issuing
Bank), hereunder (in the opinion of the retiring Agent and as certified to the
Lenders in writing by such successor Agent) which, in the case of (i), (ii) or
(iii) above, so long as there is no Default or Event of Default shall be
reasonably satisfactory to the Lead Borrower (whose consent shall not be
unreasonably withheld or delayed). Upon the acceptance of any appointment as
Agent by a successor Agent, such successor Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Agent and the retiring Agent shall be discharged from its duties and obligations
under this Agreement. After any retiring Agent's resignation hereunder as such
Agent, the provisions of this Article VIII shall inure to its benefit
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as to any actions taken or omitted to be taken by it while it was such Agent
under this Agreement.
Section 8.12. Reports and Financial Statements.
Promptly after receipt thereof from the Borrowers, the Administrative Agent
shall remit to each Lender and the Collateral Agent copies of all financial
statements required to be delivered by the Borrowers hereunder and all
commercial finance examinations and appraisals of the Collateral received by the
Administrative Agent.
Section 8.13. Delinquent Lender.
If for any reason any Lender shall fail or refuse to abide by its
obligations under this Agreement, including without limitation its obligation to
make available to Administrative Agent or the Canadian Agent its pro rata share
of any Revolving Loans, expenses or setoff or purchase its pro rata share of a
participation interest in the Swingline Loans (a "Delinquent Lender") and such
failure is not cured within ten (10) days of receipt from the Administrative
Agent or the Canadian Agent of written notice thereof, then, in addition to the
rights and remedies that may be available to Agents, other Lenders, the
Borrowers or any other party at law or in equity, and not at limitation thereof,
(i) such Delinquent Lender's right to participate in the administration of, or
decision-making rights related to, the Loans, this Agreement or the other Loan
Documents shall be suspended during the pendency of such failure or refusal, and
(ii) a Delinquent Lender shall be deemed to have assigned any and all payments
due to it from the Borrowers, whether on account of outstanding Loans, interest,
fees or otherwise, to the remaining non-delinquent Lenders for application to,
and reduction of, their proportionate shares of all outstanding Loans until, as
a result of application of such assigned payments the Lenders' respective pro
rata shares of all outstanding Loans shall have returned to those in effect
immediately prior to such delinquency and without giving effect to the
nonpayment causing such delinquency. The Delinquent Lender's decision-making and
participation rights and rights to payments as set forth in clauses (i) and (ii)
hereinabove shall be restored only upon the payment by the Delinquent Lender of
its pro rata share of any Loans, any participation obligation, or expenses as to
which it is delinquent, together with interest thereon at the rate set forth in
Section 2.12 hereof from the date when originally due until the date upon which
any such amounts are actually paid.
The non-delinquent Lenders shall also have the right, but not the
obligation, in their respective, sole and absolute discretion, to acquire for no
cash consideration, (pro rata, based on the respective Commitments of those
Lenders electing to exercise such right) the Delinquent Lender's Commitment to
fund future Loans (the "Delinquent Lender's Future Commitment"). Upon any such
purchase of the pro rata share of any Delinquent Lender's Future Commitment, the
Delinquent Lender's share in future Loans and its rights under the Loan
Documents with respect thereto shall terminate on the date of purchase, and the
Delinquent Lender shall promptly execute all documents reasonably requested to
surrender and transfer such interest, including, if so requested, an Assignment
and Acceptance. Each Delinquent Lender shall indemnify the
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Agents and each non-delinquent Lender from and against any and all loss, damage
or expenses, including but not limited to reasonable attorneys' fees and funds
advanced by any Agent or by any non-delinquent Lender, on account of a
Delinquent Lender's failure to timely fund its pro rata share of a Loan or to
otherwise perform its obligations under the Loan Documents.
Section 8.14. Syndication Agents, Documentation Agents, and Arranger.
Notwithstanding the provisions of this Agreement or any of the other Loan
Documents, the Syndication Agents, the Documentation Agents, and, except as
provided in the commitment letter for this transaction, the Arranger shall have
no powers, rights, duties, responsibilities or liabilities with respect to this
Agreement and the other Loan Documents.
Article IX
Miscellaneous
Section 9.01. Notices.
Except in the case of notices and other communications expressly permitted
to be given by telephone, all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to any Borrower, to it at Circuit City Stores, Inc.,
0000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxx, Senior
Vice President, Treasurer, and Controller, (Telecopy No. (000) 000-0000), with a
copy to McGuireWoods LLP, One Xxxxx Center, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxxxx, Esquire (Telecopy No. (804)
775-1061);
(b) if to the Administrative Agent or the Collateral Agent, or
the Swingline Lender of Swingline Loans to the Domestic Borrowers, to Fleet
Retail Finance Inc., 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention:
Xxxxxxxx Xxxxxx (Telecopy No. (000) 000-0000), with a copy to Xxxxxx &
Xxxxxxxxxx LLP, Xxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention:
Xxxxx X. Xxxxxx, Esquire (Telecopy No. (000) 000-0000);
(c) if to any other Lender, to it at its address (or telecopy
number) set forth on the signature pages hereto or on any Assignment and
Acceptance for such Lender;
(d) if to the Canadian Agent, or the Swingline Lender of
Swingline Loans to the Canadian Borrower, to the attention of the Administrative
Agent.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
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Section 9.02. Waivers; Amendments.
(a) No failure or delay by the Agents, the Issuing Bank or any
Lender in exercising any right or power hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Agents, the Issuing Bank and the Lenders hereunder and under the other Loan
Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of any Loan Document or
consent to any departure by any Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Agents, any
Lender or the Issuing Bank may have had notice or knowledge of such Default at
the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Borrowers and the Required Lenders or, in the case of any
other Loan Document, pursuant to an agreement or agreements in writing entered
into by the Agents and the Borrowers that are parties thereto, in each case with
the consent of the Required Lenders, provided that no such agreement shall (i)
increase the Total Commitments without the written consent of each Lender or
increase the Commitment, Domestic Commitment or Canadian Commitment of any
Lender without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or L/C Disbursement or reduce the rate of interest thereon,
or reduce any fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the scheduled date of payment of the principal
amount of any Loan or L/C Disbursement, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of the Commitments or the Maturity
Date (except as provided in Section 2.10 hereof), without the written consent of
each Lender affected thereby, (iv) change Section 2.20, Section 2.23, or Section
2.24 or Section 6.03 of the Security Agreement, without the written consent of
each Lender, (v) change any of the provisions of this Section 9.02 or the
definition of the term "Required Lenders" or "Required Supermajority Lenders" or
any other provision of any Loan Document specifying the number or percentage of
Lenders required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender, (vi) release any Borrower from its obligations under any Loan
Document, or limit its liability in respect of such Loan Document, without the
written consent of each Lender, (vii) except for sales described in Section
6.05, release any material portion of the Collateral from the Liens of the
Security Documents, without the written consent of each Lender, provided however
that the release of a material portion of the Collateral granted by the Canadian
Borrower shall require the consent of
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all of the Lenders having Canadian Commitments (viii) change the definition of
the term "Borrowing Base" or any component definition thereof if as a result
thereof the amounts available to be borrowed by the Borrowers would be
increased, without the written consent of each Lender, provided that the
foregoing shall not limit the discretion of the Administrative Agent to change,
establish or eliminate any Reserves, (ix) modify the definition of Permitted
Overadvance so as to increase the amount thereof or, except as provided in such
definition, the time period for a Permitted Overadvance, without the written
consent of each Lender, (x) subordinate the Obligations hereunder, the Other
Liabilities, or the Liens granted hereunder or under the other Loan Documents,
to any other Indebtedness or Lien, as the case may be without the prior written
consent of each Lender, (xi) change the definition of the term "Canadian
Availability" or any component definition thereof if as a result thereof the
amounts available to be borrowed by the Canadian Borrower would be increased,
without the consent of each Lender, and provided further that no such agreement
shall amend, modify or otherwise affect the rights or duties of the Agents or
the Issuing Bank without the prior written consent of the Agents or the Issuing
Bank, as the case may be.
(c) Notwithstanding anything to the contrary contained herein,
no modification, amendment or waiver which changes the definition of "Cash
Dominion Event" or increases the maximum amount of the Swingline Loans to the
Domestic Borrowers to an amount in excess of $60,000,000 or increases the
maximum amount of the Swingline Loans to the Canadian Borrower to an amount in
excess of $20,000,000 (or, in each case, such greater amount to which such limit
has been previously increased in accordance with the provisions of this Section
9.02(c)) shall be made without the written consent of the Required Supermajority
Lenders.
(d) Notwithstanding anything to the contrary contained in this
Section 9.02, in the event that the Borrowers request that this Agreement or any
other Loan Document be modified, amended or waived in a manner which would
require the consent of the Lenders pursuant to Section 9.02(b) or Section
9.02(c) and such amendment is approved by the Required Lenders, but not by the
requisite percentage of the Lenders, the Borrowers, and the Required Lenders
shall be permitted, within ninety (90) days thereafter, to amend this Agreement
without the consent of the Lender or Lenders which did not agree to the
modification or amendment requested by the Borrowers (such Lender or Lenders,
collectively the "Minority Lenders") to provide for (w) the termination of the
Commitment, Domestic Commitment and Canadian Commitment of each of the Minority
Lenders, (x) the addition to this Agreement of one or more other financial
institutions, or an increase in the Commitment, Domestic Commitment and Canadian
Commitment of one or more of the Required Lenders, so that the aggregate
Commitments, Domestic Commitments and Canadian Commitments, after giving effect
to such amendment shall be in the same amount as the aggregate Commitments,
Domestic Commitments and Canadian Commitments immediately before giving effect
to such amendment, (y) if any Loans are outstanding at the time of such
amendment, the making of such additional Loans by such new or increasing Lender
or Lenders, as the case may be, as may be necessary to repay in full the
outstanding Loans (including principal, interest, and fees) of the Minority
Lenders
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immediately before giving effect to such amendment and (z) such other
modifications to this Agreement or the Loan Documents as may be appropriate and
incidental to the foregoing.
(e) No notice to or demand on any Borrower shall entitle any
Borrower to any other or further notice or demand in the same, similar or other
circumstances. Each holder of a Note shall be bound by any amendment,
modification, waiver or consent authorized as provided herein, whether or not a
Note shall have been marked to indicate such amendment, modification, waiver or
consent and any consent by a Lender, or any holder of a Note, shall bind any
Person subsequently acquiring a Note, whether or not a Note is so marked. No
amendment to this Agreement shall be effective against the Borrowers unless
signed by the Borrowers.
Section 9.03. Expenses; Indemnity; Damage Waiver.
(a) The Borrowers shall jointly and severally pay (i) all
reasonable out-of-pocket expenses incurred by the Agents and their Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Agents, outside consultants for the Agents, appraisers, and for commercial
finance examinations, in connection with the arrangement of the credit
facilities provided for herein, the preparation and administration of the Loan
Documents or any amendments, modifications or waivers of the provisions thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing
Bank in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder, and (iii) subject to the
limitations set forth in Section 5.09(b), all reasonable out-of-pocket expenses
incurred by the Agents, the Issuing Bank or any Lender, including the reasonable
fees, charges and disbursements of any counsel and any outside consultants for
the Agents, the Issuing Bank or any Lender, for appraisers, commercial finance
examinations, and environmental site assessments, in connection with the
enforcement or protection of its rights in connection with the Loan Documents,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit; provided that the Lenders who are not the Agents or
the Issuing Bank shall be entitled to reimbursement for no more than one counsel
representing all such Lenders.
(b) The Borrowers shall, jointly and severally, indemnify the
Agents, the Issuing Bank and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an "Indemnitee") against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the reasonable and documented fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of any Loan Document or any other
agreement or instrument contemplated hereby, the performance by the parties to
the Loan Documents of their respective obligations thereunder or the
consummation of the transactions contemplated by the Loan Documents or any other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use
of the
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proceeds therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any property currently or formerly owned or operated by any Borrower
or any of the Subsidiaries, or any Environmental Liability related in any way to
any Borrower or any of the Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto, provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses resulted from the gross negligence, bad faith,
or breach of the contractual obligations of such Indemnitee or any Affiliate of
such Indemnitee (or of any officer, director, employee, advisor or agent of such
Indemnitee or any such Indemnitee's Affiliates), or with respect to a claim by
one Indemnified Person against another Indemnified Person.
(c) To the extent that any Borrower fails to pay any amount
required to be paid by it to the Agents or the Issuing Bank under paragraph (a)
or (b) of this Section, each Lender severally agrees to pay to the Agents or the
Issuing Bank, as the case may be, such Lender's Commitment Percentage of such
unpaid amount, provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Agents or the Issuing Bank.
(d) To the extent permitted by Applicable Law, no Borrower
shall assert, and each hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the transactions contemplated by the Loan Documents, any Loan or Letter
of Credit or the use of the proceeds thereof.
(e) Notwithstanding anything to the contrary in paragraphs (a)
or (b) of this Section, the Canadian Borrower's obligation to pay and indemnify
shall be limited to matters, fees, expenses charges and disbursement, or losses,
claims, damages and liabilities which the Administrative Agent or the Canadian
Agent determines in their reasonable judgment to be properly attributable or
allocable to the Canadian Borrower.
(f) All amounts due under this Section shall be payable
promptly after written demand therefor.
Section 9.04. Designation of Lead Borrower as Borrowers' Agent.
(a) Each Domestic Borrower hereby irrevocably designates and
appoints the Lead Borrower as that Domestic Borrower's agent to obtain Loans and
Letters of Credit hereunder, the proceeds of which shall be available to each
Domestic Borrower for those uses as
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those set forth herein. As the disclosed principal for its agent, each Domestic
Borrower shall be obligated to the Agents and each Lender on account of Loans so
made and Letters of Credit so issued hereunder as if made directly by the
Lenders to that Domestic Borrower, notwithstanding the manner by which such
Loans and Letters of Credit are recorded on the books and records of the Lead
Borrower and of any Domestic Borrower.
(b) Each Borrower recognizes that credit available to it
hereunder is in excess of and on better terms than it otherwise could obtain on
and for its own account and that one of the reasons therefor is its joining in
the credit facility contemplated herein with all other Borrowers. Consequently,
each Borrower hereby assumes, guarantees, and agrees to discharge all
Obligations and Other Liabilities and the Canadian Liabilities of all other
Borrowers as if the Borrower so assuming and guarantying were each other
Borrower, provided that the Canadian Borrower shall be liable only for the
Canadian Liabilities.
(c) The Lead Borrower shall act as a conduit for each Domestic
Borrower (including itself, as a "Domestic Borrower") on whose behalf the Lead
Borrower has requested a Loan.
(i) The Lead Borrower shall cause the transfer of the
proceeds of each Loan to the (those) Domestic Borrower(s) on
whose behalf such Loan was obtained. Neither the Agents nor any
Lender shall have any obligation to see to the application of
such proceeds.
(ii) If, for any reason, and at any time during the
term of this Agreement,
(A) any Domestic Borrower, including the Lead
Borrower, as agent for the Domestic Borrowers, shall be
unable to, or prohibited from carrying out the terms
and conditions of this Agreement (as determined by the
Administrative Agent in its reasonable judgment); or
(B) the Administrative Agent, in its reasonable
judgment, deems it inexpedient to continue making Loans
and cause Letters of Credit to be issued to or for the
account of any particular Domestic Borrower, or to
channel such Loans and Letters of Credit through the
Lead Borrower,
then the Lenders may make Loans directly to, and cause the
issuance of Letters of Credit directly for the account of such
of the Domestic Borrowers as the Administrative Agent
determines to be expedient, which Loans may be made without
regard to the procedures otherwise included in this Section
9.04.
(d) In the event that the Administrative Agent determines under
Section Section 9.04(c)(ii) to forgo the procedures included herein pursuant to
which Loans and Letters of Credit are to be channeled through the Lead Borrower,
then the Administrative Agent may
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designate one or more of the Domestic Borrowers to fulfill the financial and
other reporting requirements otherwise imposed herein upon the Lead Borrower.
(e) Each of the Borrowers shall remain jointly and severally
liable to the Agents and the Lenders for the payment and performance of all
Obligations and all Other Liabilities (which payment and performance shall
continue to be secured by all Collateral granted by each of the Borrowers)
notwithstanding any determination by the Administrative Agent under Section
9.04(c)(ii) to cease making Loans or causing Letters of Credit to be issued to
or for the benefit of any Borrower, provided that the Canadian Borrower shall be
liable only for the Canadian Liabilities and the Collateral granted by the
Canadian Borrower shall secure only the Canadian Liabilities.
(f) The authority of the Lead Borrower to request Loans on
behalf of, and to bind, the Domestic Borrowers, shall continue unless and until
the Administrative Agent acts as provided in subparagraph (c), above, or the
Administrative Agent actually receives
(i) written notice of: (i) the termination of such
authority, and (ii) the subsequent appointment of a successor
Lead Borrower, which notice is signed by the respective
Presidents of each Domestic Borrower (other than the President
of the Lead Borrower being replaced) then eligible for
borrowing under this Agreement; and
(ii) written notice from such successive Lead Borrower
(i) accepting such appointment; (ii) acknowledging that such
removal and appointment has been effected by the respective
Presidents of such Domestic Borrowers eligible for borrowing
under this Agreement; and (iii) acknowledging that from and
after the date of such appointment, the newly appointed Lead
Borrower shall be bound by the terms hereof, and that as used
herein, the term "Lead Borrower" shall mean and include the
newly appointed Lead Borrower.
Section 9.05. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate or branch of the Issuing Bank
that issues any Letter of Credit), except that no Borrower may assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Lender (and any such attempted assignment or transfer
without such consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
(including any Affiliate or branch of the Issuing Bank that issues any Letter of
Credit) and, to the extent expressly contemplated hereby, the Related Parties of
each of the Agents, the Issuing Bank and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
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(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment, Domestic Commitment or Canadian Commitment and the
Loans at the time owing to it), provided that (i) except in the case of an
assignment to a Lender or an Affiliate or branch of a Lender, each of the Lead
Borrower (but only if no Event of Default then exists), the Agents and the
Issuing Bank must give their prior written consent to such assignment (which
consent shall not be unreasonably withheld or delayed), (ii) except in the case
of an assignment to a Lender or an Affiliate or branch of a Lender or an
assignment of the entire remaining amount of the assigning Lender's Commitment
or Loans, the amount of the Commitment or Loans of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $10,000,000 unless the Administrative Agent otherwise consents,
(iii) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender's rights and obligations, (iv) the parties to
each assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, and, after completion of the syndication of the
Loans, together with a processing and recordation fee of $3,500. Subject to
acceptance and recording thereof pursuant to paragraph (d) of this Section, from
and after the effective date specified in each Assignment and Acceptance the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Section 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrowers, shall maintain at one of its offices in Boston,
Massachusetts a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitment, Domestic Commitment and Canadian Commitment of, and principal amount
of the Loans and L/C Disbursements owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
presumptively correct absent manifest error and the Borrowers, the
Administrative Agent, the Canadian Agent, the Issuing Bank and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the
Lead Borrower, the Issuing Bank and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.
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(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the processing and
recordation fee referred to in paragraph (b) of this Section and any written
consent to such assignment required by paragraph (b) of this Section, the
Administrative Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(e) Any Lender may, without the consent of the Borrowers, the
Agents, and the Issuing Bank, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its Commitment,
Domestic Commitment and Canadian Commitment, and the Loans owing to it),
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrowers, the
Agents, the Issuing Bank and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation in the Commitments, Domestic Commitments and
Canadian Commitments, the Loans and the Letters of Credit Outstandings shall
provide that such Lender shall retain the sole right to enforce the Loan
Documents and to approve any amendment, modification or waiver of any provision
of the Loan Documents, provided that such agreement or instrument may provide
that such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
9.02(b) that affects such Participant. Subject to paragraph (f) of this Section,
the Borrowers agree that each Participant shall be entitled to the benefits of
Section 2.25, Section 2.27 and Section 2.28 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.09 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.27(c) as though it were a
Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.25 or Section 2.28 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Lead Borrower's prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 2.28 unless (i) the Lead Borrower is notified of the participation sold
to such Participant and such Participant agrees, for the benefit of the
Borrowers, to comply with Section 2.28(e) as though it were a Lender and (ii)
such Participant is eligible for exemption from the withholding tax referred to
therein, following compliance with Section 2.28(e).
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall
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not apply to any such pledge or assignment of a security interest, provided that
no such pledge or assignment of a security interest shall release a Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
Section 9.06. Survival.
All covenants, agreements, representations and warranties made by the
Borrowers in the Loan Documents and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement or any other Loan
Document shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of the Loan Documents and
the making of any Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Agents, the Issuing Bank or any Lender may have had notice or knowledge
of any Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid or any Letter of Credit
is outstanding and so long as the Commitments have not expired or terminated,
except as otherwise provided in the Security Agreement. The provisions of
Section 2.25, Section 2.28 and Section 9.03and Article VIII shall survive and
remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Letters of Credit and the Commitments or the termination of
this Agreement or any provision hereof.
Section 9.07. Counterparts; Integration; Effectiveness.
This Agreement may be executed in counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract. This
Agreement, the other Loan Documents and any separate letter agreements with
respect to fees payable to the Agents constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Agents and the Lenders and
when the Administrative Agent shall have received counterparts hereof that, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
Section 9.08. Severability.
Any provision of this Agreement held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity, illegality
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or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
Section 9.09. Right of Setoff.
If an Event of Default shall have occurred and be continuing, each Lender
and each of its Affiliates and branches are hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other obligations at any time owing by such Lender or
Affiliate to or for the credit or the account of the Borrowers against any of
and all the obligations of the Borrowers now or hereafter existing under this
Agreement held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement and although such obligations may be
unmatured. The rights of each Lender under this Section are in addition to other
rights and remedies (including other rights of setoff) that such Lender may
have. Notwithstanding the foregoing, any amounts of the Canadian Borrower so
offset shall be applied solely to the Canadian Liabilities.
Section 9.10. Governing Law; Jurisdiction; Consent to Service of Process.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE COMMONWEALTH OF MASSACHUSETTS.
(b) Each Borrower agrees that any suit for the enforcement of
this Agreement or any other Loan Document may be brought in the courts of the
Commonwealth of Massachusetts or any federal court sitting therein and consent
to the non-exclusive jurisdiction of such courts. Each Borrower hereby waives
any objection which it may now or hereafter have to the venue of any such suit
or any such court or that such suit is brought in an inconvenient forum.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement or any other Loan Document will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
Section 9.11. WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
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REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 9.12. Headings.
Article and Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and shall not
affect the construction of, or be taken into consideration in interpreting, this
Agreement.
Section 9.13. Interest Rate Limitation.
Notwithstanding anything herein to the contrary, if at any time the
interest rate applicable to any Loan, together with all fees, charges and other
amounts that are treated as interest on such Loan under Applicable Law
(collectively the "Charges"), shall exceed the maximum lawful rate (the "Maximum
Rate") that may be contracted for, charged, taken, received or reserved by the
Lender holding such Loan in accordance with Applicable Law, the rate of interest
payable in respect of such Loan hereunder, together with all Charges payable in
respect thereof, shall be limited to the Maximum Rate and, to the extent lawful,
the interest and Charges that would have been payable in respect of such Loan
but were not payable as a result of the operation of this Section shall be
cumulated and the interest and Charges payable to such Lender in respect of
other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been received
by such Lender.
Section 9.14. Additional Waivers.
(a) The Obligations and Canadian Liabilities are the joint and
several obligations of each Borrower provided that the Canadian Borrower shall
be liable only for the Canadian Liabilities. To the fullest extent permitted by
Applicable Law, the obligations of each Borrower hereunder shall not be affected
by (i) the failure of any Agent or any other Secured Party to assert any claim
or demand or to enforce or exercise any right or remedy against any other
Borrower under the provisions of this Agreement, any other Loan Document or
otherwise, (ii) any rescission, waiver, amendment or modification of, or any
release from any of the terms or provisions of, this Agreement, any other Loan
Document, or any other agreement, or (iii) the failure to perfect any security
interest in, or the release of, any of the security held by or on behalf of the
Collateral Agent, the Canadian Agent or any other Secured Party.
(b) The obligations of each Borrower to pay the Obligations or
the Canadian Liabilities, as applicable, in full hereunder shall not be subject
to any reduction, limitation, impairment or termination for any reason (other
than the indefeasible payment in full in cash of
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the Obligations or the Canadian Liabilities, as applicable), including any claim
of waiver, release, surrender, alteration or compromise of any of the
Obligations or the Canadian Liabilities, as applicable, and shall not be subject
to any defense or set-off, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality or unenforceability of the Obligations or
the Canadian Liabilities, as applicable, or otherwise. Without limiting the
generality of the foregoing, the obligations of each Borrower hereunder shall
not be discharged or impaired or otherwise affected by the failure of any Agent
or any other Secured Party to assert any claim or demand or to enforce any
remedy under this Agreement, any other Loan Document or any other agreement, by
any waiver or modification of any provision of any thereof, by any default,
failure or delay, wilful or otherwise, in the performance of the Obligations, or
by any other act or omission that may or might in any manner or to any extent
vary the risk of any Borrower or that would otherwise operate as a discharge of
any Borrower as a matter of law or equity (other than the indefeasible payment
in full in cash of all the Obligations).
(c) To the fullest extent permitted by Applicable Law, each
Borrower waives any defense based on or arising out of any defense of any other
Borrower or the unenforceability of the Obligations or the Canadian Liabilities
or any part thereof from any cause, or the cessation from any cause of the
liability of any other Borrower, other than the indefeasible payment in full in
cash of all the Obligations and the Canadian Liabilities. The Collateral Agent
and the other Secured Parties may, at their election, foreclose on any security
held by one or more of them by one or more judicial or nonjudicial sales, accept
an assignment of any such security in lieu of foreclosure, compromise or adjust
any part of the Obligations and the Canadian Liabilities, make any other
accommodation with any other Borrower, or exercise any other right or remedy
available to them against any other Borrower, without affecting or impairing in
any way the liability of any Borrower hereunder except to the extent that all
the Obligations and the Canadian Liabilities have been indefeasibly paid in full
in cash. Pursuant to Applicable Law, each Borrower waives any defense arising
out of any such election even though such election operates, pursuant to
Applicable Law, to impair or to extinguish any right of reimbursement or
subrogation or other right or remedy of such Borrower against any other
Borrower, as the case may be, or any security.
(d) Upon payment by any Borrower of any Obligations or the
Canadian Liabilities, all rights of such Borrower against any other Borrower
arising as a result thereof by way of right of subrogation, contribution,
reimbursement, indemnity or otherwise shall in all respects be subordinate and
junior in right of payment to the prior indefeasible payment in full in cash of
all the Obligations and the Canadian Liabilities. In addition, any indebtedness
of any Borrower now or hereafter held by any other Borrower is hereby
subordinated in right of payment to the prior payment in full of the Obligations
and the Canadian Liabilities. None of the Borrowers will demand, xxx for, or
otherwise attempt to collect any such indebtedness. If any amount shall
erroneously be paid to any Borrower on account of (a) such subrogation,
contribution, reimbursement, indemnity or similar right or (b) any such
indebtedness of any Borrower, such amount shall be held in trust for the benefit
of the Secured Parties and shall forthwith be paid to the Collateral Agent or
the Canadian Agent, as applicable, to be credited
117
against the payment of the Obligations and the Canadian Liabilities, whether
matured or unmatured, in accordance with the terms of the Loan Documents.
(e) Without limiting the generality of the foregoing, or of any
other waiver or other provision set forth in this Agreement, each Borrower
hereby absolutely, knowingly, unconditionally, and expressly waives any and all
claim, defense or benefit arising directly or indirectly under any one or more
of Sections 2787 to 2855 inclusive of the California Civil Code or any similar
law of California.
Section 9.15. Confidentiality
Each of the Lenders agrees that it will use its best efforts not to
disclose without the prior consent of the Lead Borrower (other than to its
employees, auditors, counsel or other professional advisors, to Affiliates,
branches or to another Lender if the Lender or such Lender's holding or parent
company in its sole discretion determines that any such party should have access
to such information, provided that such party is bound by the confidentiality
provisions of this Section 9.15) any information with respect to Lead Borrower
or any of its Subsidiaries which is furnished pursuant to this Agreement and
which is designated by Lead Borrower to the Lenders in writing as confidential
provided that any Lender may disclose any such information (a) as has become
generally available to the public, (b) as may be required in any report,
statement or testimony submitted to any municipal, state, provincial or federal
regulatory body having or claiming to have jurisdiction over such Lender or to
the Federal Reserve Board or the Federal Deposit Insurance Corporation or
similar organizations (whether in the United States or elsewhere) or their
successors, (c) as may be required in response to any summons or subpoena or in
connection with any litigation, (d) in order to comply with any law, order,
regulation or ruling applicable to such Lender, (e) in connection with the
enforcement of remedies under this Agreement and the other Loan Documents, and
(f) to any prospective transferee in connection with any contemplated transfer
of any of the Loans or Notes or any interest therein by such Lender provided
that such prospective transferee agrees to be bound by the provisions of this
Section. The Borrowers hereby agree that the failure of a Lender to comply with
the provisions of this Section 9.15 shall not relieve the Borrowers of any of
their obligations to such Lender under this Agreement and the other Loan
Documents. Notwithstanding the foregoing, the information subject to this
Section 9.15 shall not include, and the Agents, the Issuing Bank and each Lender
may disclose without limitation of any kind, any information with respect to the
"tax treatment" and "tax structure" of the transactions contemplated hereby and
all materials of any kind (including opinions or other tax analyses) that are
provided to the Agents, the Issuing Bank or any Lender relating to such tax
treatment and tax structure; provided that with respect to any document or
similar item that in either case contains information concerning the tax
treatment or tax structure of the transactions as well as other information,
this sentence shall only apply to such portions of the document or similar item
that relate to the tax treatment or tax structure of the Loans, Letters of
Credit and transactions contemplated hereby.
Section 9.16. Limitation Of Canadian Borrower Liability.
118
Notwithstanding anything to the contrary herein contained, the liability of
the Canadian Borrower hereunder and under any other Loan Documents shall be
limited to the Canadian Liabilities and the Canadian Borrower shall have no
liability whatsoever under the Loan Documents with respect to any other
Obligations of the Domestic Borrowers.
Section 9.17. Judgment Currency.
(a) If for the purpose of obtaining or enforcing judgment
against the Canadian Borrower in any court in any jurisdiction, it becomes
necessary to convert into any other currency (such other currency being
hereinafter in this Section 9.17 referred to as the "Judgment Currency") an
amount due in Canadian dollars or United States dollars under this Agreement,
the conversion will be made at the rate of exchange prevailing on the Business
Day immediately preceding:
(i) the date of actual payment of the amount due, in
the case of any proceeding in the courts of the Province of
Ontario or in the courts of any other jurisdiction that will
give effect to such conversion being made on such date; or
(ii) the date on which the judgment is given, in the
case of any proceeding in the courts of any other jurisdiction
(the date as of which such conversion is made pursuant to this
Section 9.17 being hereinafter in this Section 9.17 referred to
as the "Judgment Conversion Date").
(b) If, in the case of any proceeding in the court of any
jurisdiction referred to in Section 9.17(a)(ii), there is a change in the rate
of exchange prevailing between the Judgment Conversion Date and the date of
actual payment of the amount due, the Canadian Borrower will pay such additional
amount (if any, but in any event not a lesser amount) as may be necessary to
ensure that the amount paid in the Judgment Currency, when converted at the rate
of exchange prevailing on the date of payment, will produce the amount of
Canadian dollars or United States dollars, as the case may be, which could have
been purchased with the amount of Judgment Currency stipulated in the judgment
or judicial order at the rate of exchange prevailing on the Judgment Conversion
Date.
(c) Any amount due from the Canadian Borrower under the
provisions of Section 9.17 will be due as a separate debt and will not be
affected by judgment being obtained for any other amounts due under or in
respect of this Agreement.
(d) The term "rate of exchange" in this Section 9.17 means:
(i) for a conversion of CD$ to the Judgment Currency,
the reciprocal of the official noon rate of exchange
published by the Bank of Canada for the date in
question for the conversion of the Judgment Currency to
Canadian dollars;
119
(ii) for a conversion of United States Dollars to the
Judgment Currency when the Judgment Currency is
Canadian dollars, the official noon rate of exchange
published by the Bank of Canada for the date in
question for the conversion of United States dollars to
Canadian dollars;
(iii) for a conversion of US dollars to the Judgment
Currency when the Judgment Currency is not Canadian
dollars, the effective rate obtained when a given
amount of United States dollars is converted to
Canadian dollars at the rate determined pursuant to
Section 9.17 and the result thereof is then converted
to the Judgment Currency pursuant to Section 9.17; or
(iv) if a required rate is not so published by the Bank
of Canada for any such date, the spot rate quoted by
the Canadian Agent at Toronto, Canada at approximately
noon (Toronto time) on that date in accordance with its
normal practice for the applicable currency conversion
in the wholesale market.
Section 9.18. Existing Credit Agreement Amended and Restated.
This Agreement shall amend and restate the Existing Credit Agreement in its
entirety. On the Closing Date, the rights and obligations of the parties under
the Existing Credit Agreement shall be subsumed within and be governed by this
Agreement; provided, however, that each of the "Loans" (as such term is defined
in the Existing Credit Agreement) outstanding under the Existing Credit
Agreement on the Closing Date shall, for purposes of this Agreement, be included
as Loans hereunder and each of the "Letters of Credit" (as defined in the
Existing Credit Agreement) outstanding under the Existing Credit Agreement on
the Closing Date shall be Letters of Credit hereunder.
Section 9.19. Language.
The parties herein have expressly requested that this Agreement and all
related documents be drawn up in the English language. A la demande expresse des
parties aux presentes, cette convention et tout document y afferent ont ete
rediges en langue anglaise.
[balance of page left intentionally blank; signature pages follow]
120
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as a sealed instrument as
of the day and year first above written.
CIRCUIT CITY STORES, INC.
as Lead Borrower and Borrower
By: /s/ X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President,
Treasurer and Controller
CIRCUIT CITY STORES WEST COAST, INC.
as Borrower
By: /s/ X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and Treasurer
ORBYX ELECTRONICS,LLC
as Borrower
By its sole member
Circuit City Stores West Coast,Inc.
By: /s/ X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and Treasurer
INTERTAN CANADA LTD., as Canadian
Borrower
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: VP & CFO
1
FLEET RETAIL GROUP, INC.,
as Administrative Agent, as Collateral
Agent, as Swingline Lender to the
Domestic Borrowers, and as Domestic Lender
By: /s/ Xxxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Managing Director
Address:
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
FLEET NATIONAL BANK,
as Issuing Bank
By: /s/ Xxxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Managing Director
Address:
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
2
BANK OF AMERICA, N.A., [acting
through its Canada branch], as Canadian
Lender, as Swingline Lender to the
Canadian Borrower, and as Canadian
Administrative Agent and Canadian Collateral Agent
By: /s/ Xxxxxx Xxx
--------------------------
Name: Xxxxxx Xxx
Title: Vice President
Address: 000 Xxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Xxxxxx
Attn: Xxxxxx Xxx
Telephone: (000)-000-0000
Telecopy: (000)-000-0000
3
GENERAL ELECTRIC CAPITAL
CORPORATION,
as Documentation Agent and as
Domestic Lender
By: Xxxx Xxxxxxx
-------------------------
Name: /s/ Xxxx Xxxxxxx
--------------------------
Title: Duly Authorized Signer
--------------------------
Address:
201 Xxxxxx 7
----------------------------------
Xxxxxxx, XX 00000
Attn: Circuit City Account Manager
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
GE CANADA FINANCE
HOLDING COMPANY, as Canadian Lender
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------
Title: President
-------------------------
Address:
GE Canada Finance Holding Company
Attn:
-----------------------------
Telephone:
-----------------------
Telecopy:
------------------------
4
BANK ONE, NA,
as Documentation Agent and as
Domestic Lender
By: /s/Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Associate Director
Address:
000 Xxxxx XxXxxxx Xx.
Mail Code IL1-1458
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
5
CONGRESS FINANCIAL
CORPORATION (CENTRAL), as Syndication Agent
and as Domestic Lender
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
--------------------------
Title: Senior Vice President
-----------------------------------
Address:
000 X. Xxxxxx Xxxxx, Xxxxx
Xxxxxxx, XX 00000
Attn: /s/ Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
CONGRESS FINANCIAL
CORPORATION (CANADA), as Canadian Lender
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
-----------------------------------
Address:
000 X. Xxxxxx Xxxxx, Xxxxx
-----------------------------------
Xxxxxxx, XX 00000
--------------------------------------------
Attn: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Telephone: (000) 000-0000
------------------
Telecopy: (000) 000-0000
------------------
6
XXXXX FARGO FOOTHILL, LLC,
as Co-Agent and Domestic Lender
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
--------------------------------
Title: Assistant Vice President
--------------------------
Address:
0000 Xxxxxxxx Xxx
-----------------------------------
Suite 3000 West
-----------------------------------
Attn: Xxxx Xxxxx
--------------------------------
Telephone: 000-000-0000
------------------------
Telecopy: 000-000-0000
------------------------
7
THE CIT GROUP/BUSINESS
CREDIT, INC., as Co-Agent and
Domestic Lender
By: /s/ Xxxxxx Xxxxxx
--------------------------
Name: Xxxxxx Xxxxxx
--------------------------
Title: Vice President
--------------------------
Address:
0000 Xxxxxx xx Xxx Xxxxxxxx, 00xx Xx.
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
8
NATIONAL CITY BUSINESS
CREDIT, INC., as Co-Agent and Domestic
Lender
By: /s/ Xxxxxxx X. Xxxxx, Xx.
--------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
----------------------------------
Title: Senior Associate
--------------------------
Address: 0000 X. 0xx Xxxxxx, 4th Floor
Locator 01-3049
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Xx.
Telephone: 000-000-0000
Telecopy: 000-000-0000
9
JPMORGAN CHASE BANK, as
Co-Agent and Domestic Lender
By: /s/ Xxxxx X. Xxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Address:
Xxx Xxxxx Xxxxxx
Xxxxxxxxx, X.X. 00000
Attn: Circuit City Client Mgr.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
10
FIFTH THIRD BANK, as Domestic Lender
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
--------------------------
Title: Vice President
--------------------------------
Address:
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
11
SIEMENS FINANCIAL
SERVICES, INC., as Domestic Lender
By: /s/ Xxxxx Xxxxxx
--------------------------
Name: Xxxxx Xxxxxx
--------------------------------
Title: Vice President - Credit
--------------------------
Address:
000 Xxxx Xxx. - Xxxxx
-----------------------------------
Xxxxxx, XX 00000
-----------------------------------
Attn: Xxxxxxx Xxxxx
--------------------------------
Telephone: (000) 000-0000
------------------
Telecopy: (000) 000-0000
------------------
12
