EXHIBIT 10.3
CONFORMED COPY
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CREDIT AGREEMENT
among
XXXXXXX'X FOOD MARKETS, INC.
The Several Lenders
from Time to Time Parties Hereto
THE CHASE MANHATTAN BANK,
as Administrative Agent
NATIONAL WESTMINSTER BANK PLC,
as Syndication Agent
and
CITICORP U.S.A., INC.,
as Documentation Agent
Dated as of June 27, 1997
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Table of Contents
Page
SECTION 1. Definitions..................................................... 2
SECTION 2. Amount and Terms of Credit...................................... 28
2.1 Commitments.......................................................... 28
2.2 Minimum Amount of Each Borrowing; Maximum Number
of Borrowings........................................................ 29
2.3 Notice of Borrowing.................................................. 29
2.4 Disbursement of Funds................................................ 31
2.5 Repayment of Loans; Evidence of Debt................................. 31
2.6 Conversions and Continuations........................................ 32
2.7 Pro Rata Borrowings.................................................. 33
2.8 Interest............................................................. 33
2.9 Interest Periods..................................................... 34
2.10 Increased Costs, Illegality, etc..................................... 35
2.11 Compensation......................................................... 36
2.12 Change of Lending Office............................................. 37
2.13 Notice of Certain Costs.............................................. 37
SECTION 3. Letters of Credit............................................... 37
3.1 Letters of Credit.................................................... 37
3.2 Letter of Credit Requests............................................ 37
3.3 Letter of Credit Participations...................................... 38
3.4 Agreement to Repay Letter of Credit Drawings......................... 39
3.5 Increased Costs...................................................... 40
3.6 Successor Letter of Credit Issuer.................................... 41
SECTION 4. Fees; Commitments............................................... 41
4.1 Fees................................................................. 41
4.2 Voluntary Reduction of Revolving Credit Commitments.................. 42
4.3 Mandatory Termination of Commitments................................. 43
SECTION 5. Payments........................................................ 43
5.1 Voluntary Prepayments................................................ 43
5.2 Mandatory Prepayments................................................ 43
5.3 Method and Place of Payment.......................................... 46
5.4 Net Payments......................................................... 46
5.5 Computations of Interest and Fees.................................... 48
SECTION 6. Conditions Precedent to Initial Borrowing....................... 48
6.1 Credit Documents..................................................... 48
6.2 Closing Certificate.................................................. 48
6.3 Corporate Proceedings of Each Credit Party........................... 49
6.4 Corporate Documents.................................................. 49
6.5 No Material Adverse Change........................................... 49
6.6 Fees................................................................. 49
6.7 Equity Contribution and Redemption................................... 49
ii
6.8 Recapitalization..................................................... 49
6.9 Other Indebtedness................................................... 49
6.10 Closing Date Balance Sheet........................................... 49
6.11 Solvency Certificate................................................. 49
6.12 Required Approvals................................................... 49
6.13 Existing Credit Agreement............................................ 50
6.14 Senior Notes and Preferred Stock..................................... 50
6.15 Legal Opinions....................................................... 50
6.16 Subordinated Notes................................................... 50
SECTION 7. Conditions Precedent to All Credit Events....................... 50
7.1 No Default; Representations and Warranties........................... 50
7.2 Notice of Borrowing; Letter of Credit Request........................ 50
SECTION 8. Representations, Warranties and Agreements...................... 51
8.1 Corporate Status..................................................... 51
8.2 Corporate Power and Authority........................................ 51
8.3 No Violation......................................................... 51
8.4 Litigation........................................................... 51
8.5 Margin Regulations................................................... 51
8.6 Governmental Approvals............................................... 51
8.7 Investment Company Act............................................... 52
8.8 True and Complete Disclosure......................................... 52
8.9 Financial Condition; Financial Statements............................ 52
8.10 Tax Returns and Payments............................................. 52
8.11 Compliance with ERISA................................................ 52
8.12 Subsidiaries......................................................... 53
8.13 Patents, etc......................................................... 53
8.14 Environmental Laws................................................... 53
8.15 Properties........................................................... 53
SECTION 9. Affirmative Covenants........................................... 54
9.1 Information Covenants................................................ 54
9.2 Books, Records and Inspections....................................... 56
9.3 Maintenance of Insurance............................................. 56
9.4 Payment of Taxes..................................................... 56
9.5 Consolidated Corporate Franchises.................................... 56
9.6 Compliance with Statutes, Obligations, etc........................... 56
9.7 ERISA................................................................ 56
9.8 Good Repair.......................................................... 57
9.9 Transactions with Affiliates......................................... 57
9.10 End of Fiscal Years; Fiscal Quarters................................. 57
9.11 Additional Guarantors................................................ 58
9.12 Pledges of Additional Stock and Evidence of Indebtedness............. 58
9.13 Use of Proceeds...................................................... 58
9.14 Changes in Business.................................................. 58
SECTION 10. Negative Covenants............................................. 58
iii
10.1 Limitation on Indebtedness........................................... 59
10.2 Limitation on Liens.................................................. 61
10.3 Limitation on Fundamental Changes.................................... 61
10.4 Limitation on Sale of Assets......................................... 62
10.5 Limitation on Investments............................................ 63
10.6 Limitation on Dividends.............................................. 64
10.7 Limitations on Debt Payments and Amendments.......................... 65
10.8 Limitations on Sale Leasebacks....................................... 65
10.9 Consolidated Lease Expense........................................... 66
10.10 Consolidated Total Debt to Consolidated EBITDA Ratio................. 66
10.11 Consolidated EBITDA to Consolidated Interest Expense Ratio........... 66
10.12 Capital Expenditures................................................. 67
SECTION 11. Events of Default.............................................. 68
11.1 Payments............................................................. 68
11.2 Representations, etc................................................. 68
11.3 Covenants............................................................ 68
11.4 Default Under Other Agreements....................................... 68
11.5 Bankruptcy, etc...................................................... 68
11.6 ERISA................................................................ 69
11.7 Guarantee............................................................ 69
11.8 Pledge Agreement..................................................... 69
11.9 Judgments............................................................ 69
SECTION 12. The Administrative Agent....................................... 70
12.1 Appointment.......................................................... 70
12.2 Delegation of Duties................................................. 70
12.3 Exculpatory Provisions............................................... 70
12.4 Reliance by Administrative Agent..................................... 71
12.5 Notice of Default.................................................... 71
12.6 Non-Reliance on Administrative Agent and Other Lenders............... 71
12.7 Indemnification...................................................... 72
12.8 Administrative Agent in Its Individual Capacity...................... 72
12.9 Successor Agent...................................................... 72
SECTION 13. Miscellaneous.................................................. 72
13.1 Amendments and Waivers............................................... 72
13.2 Notices.............................................................. 74
13.3 No Waiver; Cumulative Remedies....................................... 74
13.4 Survival of Representations and Warranties........................... 75
13.5 Payment of Expenses and Taxes........................................ 75
13.6 Successors and Assigns; Participations and Assignments............... 75
13.7 Replacements of Lenders under Certain Circumstances.................. 77
13.8 Adjustments; Set-off................................................. 78
13.9 Counterparts......................................................... 78
13.10 Severability......................................................... 78
13.12 GOVERNING LAW........................................................ 78
13.13 Submission to Jurisdiction; Waivers.................................. 79
iv
13.14 Acknowledgments...................................................... 79
13.15 WAIVERS OF JURY TRIAL................................................ 79
13.16 Confidentiality...................................................... 79
v
SCHEDULES
Schedule 1.1 Commitments and Addresses of Lenders
Schedule 8.12 Subsidiaries
Schedule 10.1 Other Indebtedness
EXHIBITS
Exhibit A Form of Guarantee
Exhibit B Form of Pledge Agreement
Exhibit C-1 Form of Promissory Note (Term Loans)
Exhibit C-2 Form of Promissory Note (Revolving Credit and Swingline Loans)
Exhibit D Form of Letter of Credit Request
Exhibit E-1 Form of Legal Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx
Exhibit E-2 Form of Legal Opinion of Xxxxxx & Xxxxxx
Exhibit F Form of Assignment and Acceptance
Exhibit G Form of Closing Certificate
Exhibit H Form of Confidentiality Agreement
CREDIT AGREEMENT dated as of June 27, 1997, among XXXXXXX'X FOOD
MARKETS, INC., a Texas corporation (the "Borrower"), the lending institutions
from time to time parties hereto (each a "Lender" and, collectively, the
"Lenders"), THE CHASE MANHATTAN BANK, as Administrative Agent (such term and
each other capitalized term used but not defined in this introductory statement
having the meaning provided in Section 1), NATIONAL WESTMINSTER BANK PLC, as
Syndication Agent, and CITICORP USA, INC., as Documentation Agent.
The Borrower has entered into a Subscription Agreement dated as of
April 1, 1997 (such Subscription Agreement, as the same may be amended,
supplemented or otherwise modified from time to time, being referred to herein
as the "Subscription Agreement"), with RFM, pursuant to which (a) RFM will
subscribe for and purchase newly issued Borrower Common Stock (and an option to
purchase additional shares of such Borrower Common Stock) in exchange for the
Equity Contribution, (b) the Borrower will redeem (the "Redemption") from the
existing common shareholders of the Borrower, for an aggregate cash amount equal
to not less than approximately $89,000,000 and not more than $96,000,000 (the
"Cash Consideration"), a portion of the Borrower Common Stock held by such
existing common shareholders and (c) after giving effect to the Equity
Contribution and the Redemption, (i) RFM will hold approximately 62% of the
Borrower Common Stock and (ii) the existing common shareholders of the Borrower
will hold the remaining Borrower Common Stock (the foregoing transactions and
the transactions related thereto, including the Equity Contribution and the
Redemption, are referred to herein as the "Recapitalization").
The Borrower has requested the Lenders to extend credit in the form
of (a) Term Loans, in an aggregate principal amount not in excess of
$125,000,000, and (b) Revolving Credit Loans at any time and from time to time
prior to the Revolving Credit Maturity Date, in an aggregate principal amount at
any time outstanding not in excess of $225,000,000 less the sum of (i) the
aggregate Letter of Credit Outstandings at such time and (ii) the aggregate
principal amount of all Swingline Loans then outstanding. The Borrower has
requested the Letter of Credit Issuer to issue Letters of Credit at any time and
from time to time prior to the L/C Maturity Date, in an aggregate face amount at
any time outstanding not in excess of $25,000,000. The Borrower has requested
Chase to extend credit in the form of Swingline Loans at any time and from time
to time prior to the Swingline Maturity Date, in an aggregate principal amount
at any time outstanding not in excess of $25,000,000.
The proceeds of the Term Loans will be used by the Borrower,
together with (a) the net proceeds from the issuance of the Subordinated Notes
and (b) the proceeds of the Equity Contribution, solely (i) to pay the Cash
Consideration, (ii) to fund the Putable Shares Reserve Fund, (iii) to repay all
principal, interest, fees and other amounts outstanding under the Existing
Credit Agreement, (iv) to repay all the Senior Notes and pay the Make-Whole
Premium, (v) to redeem all the outstanding Existing Preferred Stock and (vi) to
pay fees and expenses incurred in connection with the Recapitalization and
certain other liabilities, the financing therefor and the other transactions
contemplated hereby and thereby. Proceeds of Revolving Credit Loans and
Swingline Loans may be used by the Borrower to finance a portion of the
foregoing and for general corporate purposes (including Permitted Acquisitions),
and Letters of Credit will be used by the Borrower for general corporate
purposes.
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The parties hereto hereby agree as follows:
SECTION 1. Definitions. As used herein, the following terms shall
have the meanings specified in this Section 1 unless the context otherwise
requires (it being understood that defined terms in this Agreement shall include
in the singular number the plural and in the plural the singular):
"ABR" shall mean, for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the Prime
Rate in effect on such day, (b) the Base CD Rate in effect on such day
plus 1% and (c) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. Any change in the ABR due to a change in the Prime Rate,
the Three-Month Secondary CD Rate or the Federal Funds Effective Rate
shall be effective as of the opening of business on the effective day of
such change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate, respectively.
"ABR Loan" shall mean each Loan bearing interest at the rate
provided in Section 2.8(a) and, in any event, shall include all Swingline
Loans.
"ABR Revolving Credit Loan" shall mean any Revolving Credit Loan
bearing interest at a rate determined by reference to the ABR.
"Acquired EBITDA" shall mean, with respect to any Acquired Entity or
Business, any Converted Restricted Subsidiary, any Sold Entity or Business
or any Converted Unrestricted Subsidiary (any of the foregoing, a "Pro
Forma Entity") for any period, the sum of the amounts for such period of
(a) income from continuing operations before income taxes and
extraordinary items, (b) interest expense, (c) depreciation expense, (d)
amortization expense, including amortization of deferred financing fees,
(e) non-recurring charges, (f) non-cash charges, (g) losses on asset sales
and (h) restructuring charges or reserves less the sum of the amounts for
such period of (i) non-recurring gains, (j) non-cash gains and (k) gains
on asset sales, all as determined on a consolidated basis for such Pro
Forma Entity in accordance with GAAP.
"Acquired Entity or Business" shall have the meaning provided in the
definition of the term "Consolidated EBITDA".
"Acquisition Subsidiary" shall mean (a) any Subsidiary of the
Borrower that is formed or acquired after the Closing Date in connection
with Permitted Acquisitions, provided that at such time (or promptly
thereafter) the Borrower designates such Subsidiary an Acquisition
Subsidiary in a written notice to the Administrative Agent, (b) any
Restricted Subsidiary on the Closing Date subsequently re-designated as an
Acquisition Subsidiary by the Borrower in a written notice to the
Administrative Agent, provided that such re-designation shall be deemed to
be an investment on the date of such re-designation in an Acquisition
Subsidiary in an amount equal to the sum of (i) the net worth of such
re-designated Restricted Subsidiary immediately prior to such re-
designation (such net worth to be calculated without regard to any
Guarantee provided by such re-designated Restricted Subsidiary) and (ii)
the aggregate principal amount of any Indebtedness owed by such
re-designated Restricted Subsidiary to the Borrower or any other
Restricted Subsidiary immediately prior to such re-designation, all
calculated, except as set forth in the parenthetical to clause (i), on a
consolidated basis in accordance with GAAP, and (c) each Subsidiary of an
Acquisition Subsidiary; provided, however, that (i) at the time of any
written re-designation by the Borrower to the Administrative
3
Agent of any Acquisition Subsidiary as a Restricted Subsidiary, the
Acquisition Subsidiary so re-designated shall no longer constitute an
Acquisition Subsidiary, (ii) no Acquisition Subsidiary may be
re-designated as a Restricted Subsidiary if a Default or Event of Default
would result from such re-designation and (iii) no Restricted Subsidiary
may be re-designated as an Acquisition Subsidiary if a Default or Event of
Default would result from such re-designation. On or promptly after the
date of its formation, acquisition or re-designation, as applicable, each
Acquisition Subsidiary (other than an Acquisition Subsidiary that is a
Foreign Subsidiary) shall have entered into a tax sharing agreement
containing terms that, in the reasonable judgment of the Administrative
Agent, provide for an appropriate allocation of tax liabilities and
benefits.
"Adjusted Total Revolving Credit Commitment" shall mean at any time
the Total Revolving Credit Commitment less the aggregate Revolving Credit
Commitments of all Defaulting Lenders.
"Adjusted Total Term Loan Commitment" shall mean at any time the
Total Term Loan Commitment less the Term Loan Commitments of all
Defaulting Lenders.
"Administrative Agent" shall mean Chase, together with its
affiliates, as the arranger of the Commitments and as the administrative
agent for the Lenders under this Agreement and the other Credit Documents.
"Administrative Agent's Office" shall mean the office of the
Administrative Agent located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or such other office in New York City as the Administrative Agent may
hereafter designate in writing as such to the other parties hereto.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or
indirect common control with such Person. A Person shall be deemed to
control a corporation if such Person possesses, directly or indirectly,
the power (a) to vote 10% or more of the securities having ordinary voting
power for the election of directors of such corporation or (b) to direct
or cause the direction of the management and policies of such corporation,
whether through the ownership of voting securities, by contract or
otherwise.
"Aggregate Revolving Credit Outstandings" shall have the meaning
provided in Section 5.2(b).
"Agreement" shall mean this Credit Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"Applicable ABR Margin" shall mean, with respect to each ABR Loan at
any date, the applicable percentage per annum set forth below based upon
(a) whether such loan is a Revolving Credit Loan, a Swingline Loan or a
Term Loan and (b) the Status in effect on such date:
Applicable ABR
Loan Status Margin
---- ------ ------
Revolving Credit Loans and Level I Status 1.000%
Swingline Loans Level II Status 0.750%
Level III Status 0.500%
Level IV Status 0.250%
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Applicable ABR
Loan Status Margin
---- ------ --------------
Level V Status 0.000%
Level VI Status 0.000%
Level VII Status 0.000%
Level VIII Status 0.000%
Term Loans Level I Status 1.500%
Level II Status 1.250%
Level III Status 1.000%
Level IV Status 0.750%
Level V Status 0.500%
Level VI Status 0.250%
"Applicable Eurodollar Margin" shall mean, with respect to each
Eurodollar Term Loan and Eurodollar Revolving Credit Loan at any date, the
applicable percentage per annum set forth below based upon (a) whether
such loan is a Revolving Credit Loan or a Term Loan and (b) the Status in
effect on such date:
Applicable Eurodollar
Loan Status Margin
---- ------ ---------------------
Revolving Credit Loans Level I Status 2.250%
Level II Status 2.000%
Level III Status 1.750%
Level IV Status 1.500%
Level V Status 1.250%
Level VI Status 1.000%
Level VII Status 0.875%
Level VIII Status 0.750%
Term Loans Level I Status 2.750%
Level II Status 2.500%
Level III Status 2.250%
Level IV Status 2.000%
Level V Status 1.750%
Level VI Status 1.500%
"Asset Sale Prepayment Event" shall mean any sale, transfer or other
disposition of any business units, assets or other properties of the
Borrower or any of the Restricted Subsidiaries not in the ordinary course
of business. Notwithstanding the foregoing, the term "Asset Sale
Prepayment Event" shall not include any transaction permitted by Section
10.4 (other than Section 10.4(b)).
"Authorized Officer" shall mean the Chairman of the Board, the
President, the Chief Financial Officer, the Treasurer or any other senior
officer of the Borrower designated as such in writing to the
Administrative Agent by the Borrower.
"Available Amount" shall mean, on any date (the "Reference Date"),
an amount equal to (a) the sum of (i) for the purposes of Sections 10.5(l)
and 10.5(n), $100,000,000,
5
(ii) the aggregate amount of Net Cash Proceeds from Prepayment Events
refused by Term Loan Lenders and retained by the Borrower in accordance
with Section 5.2(c)(iv) on or prior to the Reference Date, (iii) an amount
equal to (x) the cumulative amount of Excess Cash Flow for all fiscal
years completed prior to the Reference Date minus (y) the portion of such
Excess Cash Flow that has been on or prior to the Reference Date (or will
be) applied to the prepayment of Loans in accordance with Section
5.2(a)(ii), (iv) the amount of any capital contributions (other than the
Equity Contribution and any equity contribution made in accordance with
Section 10.5(c)(i)) made in cash to the Borrower from and including the
Business Day immediately following the Closing Date through and including
the Reference Date, (v) an amount equal to the Net Cash Proceeds received
by the Borrower on or prior to the Reference Date from any issuance of
equity securities by the Borrower, (vi) the aggregate Distribution System
Amount for the period from and including the Closing Date through and
including the Reference Date to the extent not otherwise included in
Excess Cash Flow for such period, (vii) the aggregate amount of all cash
dividends and other cash distributions received by the Borrower or any
Guarantor from any Acquisition Subsidiaries, Minority Investments or
Unrestricted Subsidiaries on or prior to the Reference Date (other than
the portion of any such dividends and other distributions that is used by
the Borrower or any Guarantor to pay taxes), (viii) the aggregate amount
of all cash repayments of principal received by the Borrower or any
Guarantor from any Acquisition Subsidiaries, Minority Investments or
Unrestricted Subsidiaries on or prior to the Reference Date in respect of
loans made by the Borrower or any Guarantor to such Acquisition
Subsidiaries, Minority Investments or Unrestricted Subsidiaries and (ix)
the aggregate amount of all net cash proceeds received by the Borrower or
any Guarantor in connection with the sale, transfer or other disposition
of its ownership interest in any Acquisition Subsidiary, Minority
Investment or Unrestricted Subsidiary on or prior to the Reference Date
minus (b) the sum of (i) the aggregate amount of any investments
(including loans) made by the Borrower or any Restricted Subsidiary (other
than any Acquisition Subsidiary) in or to Acquisition Subsidiaries
pursuant to Section 10.5(j) on or prior to the Reference Date, (ii) the
aggregate amount of any investments (including loans) made by the Borrower
or any Restricted Subsidiary (other than any Acquisition Subsidiary)
pursuant to Section 10.5(n) on or prior to the Reference Date, (iii) the
aggregate amount of any investments made by the Borrower or any Restricted
Subsidiary to acquire the Remaining Equity pursuant to Section 10.5(l) on
or prior to the Reference Date and (iv) the aggregate price paid by the
Borrower in connection with any prepayment, repurchase or redemption of
Subordinated Notes pursuant to Section 10.7(a) on or prior to the
Reference Date.
"Available Commitment" shall mean an amount equal to the excess, if
any, of (a) the sum of (i) the amount of the Total Revolving Credit
Commitment and (ii) the amount of the Total Term Loan Commitment over (b)
the sum of (i) the aggregate principal amount of all Revolving Credit
Loans (but not Swingline Loans) then outstanding and (ii) the aggregate
Letter of Credit Outstandings at such time.
"Available Foreign Investment Amount" shall mean, on any date (the
"Investment Date"), an amount equal to (a) the sum of (i) $20,000,000,
(ii) the aggregate amount of all cash dividends and other cash
distributions received by the Borrower or any Guarantor from any
Restricted Foreign Subsidiaries on or prior to the Investment Date (other
than the portion of any such dividends and other distributions that is
used by the Borrower or any Guarantor to pay taxes), (iii) the aggregate
amount of all cash repayments of principal received by the Borrower or any
Guarantor from any Restricted Foreign Subsidiaries on or prior to the
Investment Date in respect of loans made by the Borrower or any Guarantor
to such Restricted Foreign Subsidiaries and (iv) the aggregate amount of
all net cash proceeds received by the Borrower or any Guarantor in
connection
6
with the sale, transfer or other disposition of its ownership interest in
any Restricted Foreign Subsidiary on or prior to the Investment Date minus
(b) the aggregate amount of any investments (including loans) made by the
Borrower or any Restricted Subsidiary (other than any Restricted Foreign
Subsidiary) in or to Restricted Foreign Subsidiaries pursuant to Section
10.5(j) or 10.5(k) on or prior to the Investment Date.
"Bankruptcy Code" shall have the meaning provided in Section 11.5.
"Base CD Rate" shall mean the sum of (a) the product of (i) the
Three-Month Secondary CD Rate and (ii) a fraction, the numerator of which
is one and the denominator of which is one minus the C/D Reserve
Percentage and (b) the C/D Assessment Rate.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States (or any successor).
"Borrower" shall have the meaning provided in the preamble to this
Agreement.
"Borrower Common Stock" shall mean any class of outstanding common
stock of the Borrower after the Recapitalization.
"Borrowing" shall mean and include (a) the incurrence of Swingline
Loans from Chase on a given date, (b) the incurrence of one Type of Term
Loan on the Closing Date (or resulting from conversions on a given date
after the Closing Date) having, in the case of Eurodollar Term Loans, the
same Interest Period (provided that ABR Loans incurred pursuant to Section
2.10(b) shall be considered part of any related Borrowing of Eurodollar
Term Loans) and (c) the incurrence of one Type of Revolving Credit Loan on
a given date (or resulting from conversions on a given date) having, in
the case of Eurodollar Revolving Credit Loans, the same Interest Period
(provided that ABR Loans incurred pursuant to Section 2.10(b) shall be
considered part of any related Borrowing of Eurodollar Revolving Credit
Loans).
"Business Day" shall mean (a) for all purposes other than as covered
by clause (b) below, any day excluding Saturday, Sunday and any day that
shall be in The City of New York a legal holiday or a day on which banking
institutions are authorized by law or other governmental actions to close
and (b) with respect to all notices and determinations in connection with,
and payments of principal and interest on, Eurodollar Loans, any day that
is a Business Day described in clause (a) and which is also a day for
trading by and between banks in Dollar deposits in the relevant interbank
Eurodollar market.
"Capital Expenditures" shall mean, for any period, the aggregate of
all expenditures (whether paid in cash or accrued as liabilities and
including in all events all amounts expended or capitalized under Capital
Leases, but excluding any amount representing capitalized interest) by the
Borrower and the Restricted Subsidiaries during such period that, in
conformity with GAAP, are or are required to be included as additions
during such period to property, plant or equipment reflected in the
consolidated balance sheet of the Borrower and its Subsidiaries, provided
that the term "Capital Expenditures" shall not include (a) expenditures
made in connection with the replacement, substitution or restoration of
assets (i) to the extent financed from insurance proceeds paid on account
of the loss of or damage to the assets being replaced or restored or (ii)
with awards of compensation arising from the taking by eminent domain or
condemnation of the assets being replaced, (b) the purchase price of
equipment that is purchased simultaneously with the trade-in of existing
equipment to the extent that the
7
gross amount of such purchase price is reduced by the credit granted by
the seller of such equipment for the equipment being traded in at such
time, (c) the purchase of plant, property or equipment made within one
year of the sale of any asset to the extent purchased with the proceeds of
such sale or (d) expenditures that constitute any part of Consolidated
Lease Expense.
"Capitalized Lease Obligations" shall mean, as applied to any
Person, all obligations under Capital Leases of such Person or any of its
Subsidiaries, in each case taken at the amount thereof accounted for as
liabilities in accordance with GAAP.
"Capital Lease", as applied to any Person, shall mean any lease of
any property (whether real, personal or mixed) by that Person as lessee
that, in conformity with GAAP, is, or is required to be, accounted for as
a capital lease on the balance sheet of that Person.
"Cash Consideration" shall have the meaning provided in the first
paragraph of this Agreement.
"C/D Assessment Rate" shall mean for any day as applied to any ABR
Loan, the annual assessment rate in effect on such day that is payable by
a member of the Bank Insurance Fund maintained by the Federal Deposit
Insurance Corporation or any successor thereto (the "FDIC") classified as
well-capitalized and within supervisory subgroup "B" (or a comparable
successor assessment risk classification) within the meaning of 12 C.F.R.
ss. 327.4(a) (or any successor provision) to the FDIC for the FDIC's
insuring time deposits at offices of such institution in the United
States.
"C/D Reserve Percentage" shall mean for any day as applied to any
ABR Loan, the percentage (expressed as a decimal) that is in effect on
such day, as prescribed by the Board, for determining the reserve
requirement for a Depositary Institution (as defined in Regulation D of
the Board) in respect of new non-personal time deposits in Dollars having
a maturity that is 30 days or more.
"Change of Control" shall mean and be deemed to have occurred if (a)
(i) KKR, its Affiliates and the Management Group shall at any time not
own, in the aggregate, directly or indirectly, beneficially and of record,
at least 35% of the outstanding Voting Stock of the Borrower (other than
as the result of one or more widely distributed offerings of Borrower
Common Stock, in each case whether by the Borrower or by KKR, its
Affiliates or the Management Group) and/or (ii) any person, entity or
"group" (within the meaning of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended) shall at any time have acquired direct
or indirect beneficial ownership of a percentage of the outstanding Voting
Stock of the Borrower that exceeds the percentage of such Voting Stock
then beneficially owned, in the aggregate, by KKR, its Affiliates and the
Management Group, unless, in the case of either clause (i) or (ii) above,
KKR, its Affiliates and the Management Group have, at such time, the right
or the ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of the
Borrower; (b) at any time Continuing Directors shall not constitute a
majority of the Board of Directors of the Borrower; and/or (c) a Change of
Control (as defined in the Subordinated Note Indenture) shall occur.
"Chase" shall mean The Chase Manhattan Bank, a New York banking
corporation, and any successor thereto by merger, consolidation or
otherwise.
"Closing Date" shall mean the date of the initial Borrowing
hereunder.
8
"Closing Date Store" shall mean any Store that (a) is owned, leased
or operated by the Borrower or any of the Restricted Subsidiaries and (b)
was opened for business by the Borrower or a Restricted Subsidiary on or
prior to the Closing Date.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the Code are to the Code, as in effect
at the date of this Agreement, and any subsequent provisions of the Code,
amendatory thereof, supplemental thereto or substituted therefor.
"Collateral" shall have the meaning provided in the Pledge
Agreement.
"Commitment Fee Rate" shall mean, with respect to the Available
Commitment on any day, the rate per annum set forth below opposite the
Status in effect on such day:
Commitment
Status Fee Rate
------ ----------
Level I Status 0.500%
Level II Status 0.425%
Level III Status 0.375%
Level IV Status 0.375%
Level V Status 0.250%
Level VI Status 0.250%
Level VII Status 0.250%
Level VIII Status 0.250%
"Commitments" shall mean, with respect to each Lender, such Lender's
Term Loan Commitment and Revolving Credit Commitment.
"Confidential Information" shall have the meaning provided in
Section 13.16.
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated June 1997 delivered to the
Lenders in connection with this Agreement.
"Consolidated Earnings" shall mean, for any period, "income from
continuing operations before income taxes and extraordinary items" of the
Borrower and the Restricted Subsidiaries for such period, determined in a
manner consistent with the manner in which such amount was determined in
accordance with the audited financial statements referred to in Section
9.1(a).
"Consolidated EBITDA" shall mean, for any period, the sum, without
duplication, of the amounts for such period of (a) Consolidated Earnings,
(b) Consolidated Interest Expense, (c) depreciation expense, (d)
amortization expense, including amortization of deferred financing fees,
(e) non-recurring charges, (f) non-cash charges, (g) losses on asset
sales, (h) restructuring charges or reserves (including charges incurred
in connection with the closing, exchange or replacement of Stores), (i) in
the case of any period ending during the fiscal year ending June 27, 1998,
Transaction Expenses, (j) any expenses or charges incurred in connection
with any issuance of debt or equity securities, (k) any fees and expenses
related to Permitted Acquisitions and (l) any deduction for minority
interest expense less the sum of the amounts for such period of
9
(m) non-recurring gains, (n) non-cash gains and (o) gains on asset sales,
all as determined on a consolidated basis for the Borrower and the
Restricted Subsidiaries in accordance with GAAP, provided that (i) except
as provided in clause (ii) below, there shall be excluded from
Consolidated Earnings for any period the income from continuing operations
before income taxes and extraordinary items of all Unrestricted
Subsidiaries for such period to the extent otherwise included in
Consolidated Earnings, except to the extent actually received in cash by
the Borrower or its Restricted Subsidiaries during such period through
dividends or other distributions, and (ii) for purposes of the definition
of the term "Permitted Acquisition" and Sections 10.3, 10.10 and 10.11,
(x) there shall be included in determining Consolidated EBITDA for any
period (A) the Acquired EBITDA of any Person, property, business or asset
(other than an Unrestricted Subsidiary) acquired to the extent not
subsequently sold, transferred or otherwise disposed of (but not including
the Acquired EBITDA of any related Person, property, business or assets to
the extent not so acquired) by the Borrower or any Restricted Subsidiary
during such period (each such Person, property, business or asset acquired
and not subsequently so disposed of, an "Acquired Entity or Business"),
and the Acquired EBITDA of any Unrestricted Subsidiary that is converted
into a Restricted Subsidiary during such period (each, a "Converted
Restricted Subsidiary"), in each case based on the actual Acquired EBITDA
of such Acquired Entity or Business or Converted Restricted Subsidiary for
such period (including the portion thereof occurring prior to such
acquisition or conversion) and (B) an adjustment in respect of each
Acquired Entity or Business equal to the amount of the Pro Forma
Adjustment with respect to such Acquired Entity or Business for such
period (including the portion thereof occurring prior to such acquisition
or conversion) as specified in the Pro Forma Adjustment Certificate
delivered to the Lenders and the Administrative Agent and (y) for purposes
of determining the Consolidated Total Debt to Consolidated EBITDA Ratio
only, there shall be excluded in determining Consolidated EBITDA for any
period the Acquired EBITDA of any Person, property, business or asset
(other than an Unrestricted Subsidiary) sold, transferred or otherwise
disposed of by the Borrower or any Restricted Subsidiary during such
period (each such Person, property, business or asset so sold or disposed
of, a "Sold Entity or Business"), and the Acquired EBITDA of any
Restricted Subsidiary that is converted into an Unrestricted Subsidiary
during such period (each, a "Converted Unrestricted Subsidiary"), in each
case based on the actual Acquired EBITDA of such Sold Entity or Business
or Converted Unrestricted Subsidiary for such period (including the
portion thereof occurring prior to such sale, transfer, disposition or
conversion).
"Consolidated EBITDA to Consolidated Interest Expense Ratio" shall
mean, as of any date of determination, the ratio of (a) Consolidated
EBITDA for the relevant Test Period to (b) Consolidated Interest Expense
for such Test Period.
"Consolidated Interest Expense" shall mean, for any period, cash
interest expense (including that attributable to Capital Leases in
accordance with GAAP), net of cash interest income, of the Borrower and
the Restricted Subsidiaries on a consolidated basis with respect to all
outstanding Indebtedness of the Borrower and the Restricted Subsidiaries,
including, without limitation, all commissions, discounts and other fees
and charges owed with respect to letters of credit and bankers' acceptance
financing and net costs under Hedge Agreements (other than currency swap
agreements, currency future or option contracts and other similar
agreements), but excluding, however, amortization of deferred financing
costs and any other amounts of non-cash interest, all as calculated on a
consolidated basis in accordance with GAAP, provided that (a) except as
provided in clause (b) below, there shall be excluded from Consolidated
Interest Expense for any period the cash interest expense (or income) of
all Unrestricted Subsidiaries for such
10
period to the extent otherwise included in Consolidated Interest Expense
and (b) for purposes of the definition of the term "Permitted Acquisition"
and Sections 10.3, 10.10 and 10.11, there shall be included in determining
Consolidated Interest Expense for any period the cash interest expense (or
income) of any Acquired Entity or Business acquired during such period and
of any Converted Restricted Subsidiary converted during such period, in
each case based on the cash interest expense (or income) of such Acquired
Entity or Business or Converted Restricted Subsidiary for such period
(including the portion thereof occurring prior to such acquisition or
conversion) assuming any Indebtedness incurred or repaid in connection
with any such acquisition or conversion had been incurred or prepaid on
the first day of such period; provided further, however, that Consolidated
Interest Expense for the Test Periods ending on October 19, 1997, January
10, 1998, and April 4, 1998, shall be determined by (a) in the case of the
Test Period ending on October 19, 1997, multiplying Consolidated Interest
Expense for the period commencing on June 29, 1997, and ending on October
19, 1997, by 3.25, (b) in the case of the Test Period ending on January
10, 1998, multiplying Consolidated Interest Expense for the period
commencing on June 29, 1997, and ending on January 10, 1998, by 1.86, and
(c) in the case of the Test Period ending on April 4, 1998, multiplying
Consolidated Interest Expense for the period commencing on June 29, 1997,
and ending on April 4, 1998, by 1.3.
"Consolidated Lease Expense" shall mean, for any period, all rental
expenses of the Borrower and the Restricted Subsidiaries during such
period under operating leases for real or personal property (including in
connection with Permitted Sale Leasebacks), excluding real estate taxes,
insurance costs and common area maintenance charges and net of sublease
income, other than (a) obligations under vehicle leases entered into in
the ordinary course of business, (b) all such rental expenses associated
with Stores acquired after the Closing Date to the extent that such rental
expenses relate to operating leases in effect at the time of (and
immediately prior to) such acquisition and (c) Capitalized Lease
Obligations, all as determined on a consolidated basis in accordance with
GAAP, provided that there shall be excluded from Consolidated Lease
Expense for any period the rental expenses of all Unrestricted
Subsidiaries for such period to the extent otherwise included in
Consolidated Lease Expense.
"Consolidated Net Income" shall mean, for any period, the sum of (a)
the consolidated net income (or loss) of the Borrower and the Restricted
Subsidiaries, determined on a consolidated basis in accordance with GAAP,
and (b) the Distribution System Amount for such period to the extent
otherwise deducted in arriving at such Consolidated Net Income.
"Consolidated Total Debt" shall mean, as of any date of
determination, (a) the sum of (i) all Indebtedness of the Borrower and the
Restricted Subsidiaries for borrowed money outstanding on such date and
(ii) all Capitalized Lease Obligations of the Borrower and the Restricted
Subsidiaries outstanding on such date, all calculated on a consolidated
basis in accordance with GAAP minus (b) the aggregate amount of cash
included in the cash accounts listed on the consolidated balance sheet of
the Borrower and the Restricted Subsidiaries as at such date to the extent
the use thereof for application to payment of Indebtedness is not
prohibited by law or any contract to which the Borrower or any of the
Restricted Subsidiaries is a party.
"Consolidated Total Debt to Consolidated EBITDA Ratio" shall mean,
as of any date of determination, the ratio of (a) Consolidated Total Debt
as of the last day of the relevant Test Period to (b) Consolidated EBITDA
for such Test Period.
11
"Consolidated Working Capital" shall mean, at any date, the excess
of (a) the sum of all amounts (other than cash, cash equivalents and bank
overdrafts) that would, in conformity with GAAP, be set forth opposite the
caption "total current assets" (or any like caption) on a consolidated
balance sheet of the Borrower and the Restricted Subsidiaries at such date
over (b) the sum of all amounts that would, in conformity with GAAP, be
set forth opposite the caption "total current liabilities" (or any like
caption) on a consolidated balance sheet of the Borrower and the
Restricted Subsidiaries on such date, but excluding (i) the current
portion of any Funded Debt, (ii) without duplication of clause (i) above,
all Indebtedness consisting of Loans and Letter of Credit Exposure to the
extent otherwise included therein and (iii) the current portion of
deferred income taxes.
"Continuing Director" shall mean, at any date, an individual (a) who
is a member of the Board of Directors of the Borrower on the date hereof,
(b) who, as at such date, has been a member of such Board of Directors for
at least the 12 preceding months, (c) who has been nominated to be a
member of such Board of Directors, directly or indirectly, by KKR or
Persons nominated by KKR or (d) who has been nominated to be a member of
such Board of Directors by a majority of the other Continuing Directors
then in office.
"Converted Restricted Subsidiary" shall have the meaning provided in
the definition of the term "Consolidated EBITDA".
"Converted Unrestricted Subsidiary" shall have the meaning provided
in the definition of the term "Consolidated EBITDA".
"Credit Documents" shall mean this Agreement, the Guarantee, the
Pledge Agreement and any promissory notes issued by the Borrower
hereunder.
"Credit Event" shall mean and include the making (but not the
conversion or continuation) of a Loan and the issuance of a Letter of
Credit.
"Credit Party" shall mean each of the Borrower and the Guarantors.
"Cumulative Consolidated Net Income Available to Common
Stockholders" means, as of any date of determination, Consolidated Net
Income less cash dividends paid with respect to preferred stock for the
period (taken as one accounting period) commencing on the Closing Date and
ending on the last day of the most recent fiscal quarter for which Section
9.1 Financials have been delivered to the Lenders under Section 9.1.
"Debt Incurrence Prepayment Event" shall mean any issuance or
incurrence by the Borrower or any of the Restricted Subsidiaries of any
Indebtedness (excluding any Indebtedness permitted to be issued or
incurred under Section 10.1).
"Default" shall mean any event, act or condition that with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which a
Lender Default is in effect.
12
"Distribution Capital Expenditures" shall mean Capital Expenditures
by the Borrower and the Restricted Subsidiaries in connection with the
expansion of the Borrower's self-distribution capabilities.
"Distribution System Amount" shall mean, for any period,
non-recurring expenses for such period that are not capitalized and that
are incurred in connection with the expansion of the Borrower's
self-distribution capabilities.
"Dividends" shall have the meaning provided in Section 10.6.
"Documentation Agent" shall mean Citicorp Securities, Inc., together
with its affiliates, as the documentation agent for the Lenders under this
Agreement and the other Credit Documents.
"Dollars" and "$" shall mean dollars in lawful currency of the
United States of America.
"Domestic Subsidiary" shall mean each Subsidiary of the Borrower
that is organized under the laws of the United States, any state or
territory thereof, or the District of Columbia.
"Drawing" shall have the meaning provided in Section 3.4(b).
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigations (other than
internal reports prepared by the Borrower or any of its Subsidiaries (a)
in the ordinary course of such Person's business or (b) as required in
connection with a financing transaction or an acquisition or disposition
of real estate) or proceedings relating in any way to any Environmental
Law or any permit issued, or any approval given, under any such
Environmental Law (hereinafter, "Claims"), including, without limitation,
(i) any and all Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or
damages pursuant to any applicable Environmental Law and (ii) any and all
Claims by any third party seeking damages, contribution, indemnification,
cost recovery, compensation or injunctive relief resulting from Hazardous
Materials or arising from alleged injury or threat of injury to health,
safety or the environment.
"Environmental Law" shall mean any applicable Federal, state,
foreign or local statute, law, rule, regulation, ordinance, code and rule
of common law now or hereafter in effect and in each case as amended, and
any binding judicial or administrative interpretation thereof, including
any binding judicial or administrative order, consent decree or judgment,
relating to the environment, human health or safety or Hazardous
Materials.
"Equity Contribution" shall mean the equity contribution to the
Borrower by RFM of an aggregate cash amount of not less than $225,000,000.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time. Section references to ERISA are to
ERISA as in effect at the date of this Agreement and any subsequent
provisions of ERISA amendatory thereof, supplemental thereto or
substituted therefor.
13
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) that together with the Borrower or a Subsidiary would be deemed
to be a "single employer" within the meaning of 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.
"Eurodollar Loan" shall mean any Eurodollar Term Loan or Eurodollar
Revolving Credit Loan.
"Eurodollar Rate" shall mean, in the case of any Eurodollar Term
Loan or Eurodollar Revolving Credit Loan, with respect to each day during
each Interest Period pertaining to such Eurodollar Loan, the rate of
interest determined on the basis of the rate for deposits in Dollars for a
period equal to such Interest Period commencing on the first day of such
Interest Period appearing on Page 3750 of the Telerate screen as of 11:00
A.M., London time, two Business Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on Page 3750
of the Telerate Service (or otherwise on such service), the "Eurodollar
Rate" for the purposes of this paragraph shall be determined by reference
to such other publicly available service for displaying eurodollar rates
as may be agreed upon by the Administrative Agent and the Borrower or, in
the absence of such agreement, the "Eurodollar Rate" for the purposes of
this paragraph shall instead be the rate per annum notified to the
Administrative Agent by the Reference Lender as the rate at which the
Reference Lender is offered Dollar deposits at or about 10:00 A.M., New
York time, two Business Days prior to the beginning of such Interest
Period, in the interbank eurodollar market where the eurodollar and
foreign currency and exchange operations in respect of its Eurodollar
Loans are then being conducted for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to the amount of its Eurodollar Term Loan or Eurodollar
Revolving Credit Loan, as the case may be, to be outstanding during such
Interest Period.
"Eurodollar Revolving Credit Loan" shall mean any Revolving Credit
Loan bearing interest at a rate determined by reference to the Eurodollar
Rate.
"Eurodollar Term Loan" shall mean any Term Loan bearing interest at
a rate determined by reference to the Eurodollar Rate.
"Event of Default" shall have the meaning provided in Section 11.
"Excess Cash Flow" shall mean, for any period, an amount equal to
the excess of (a) the sum, without duplication, of (i) Consolidated Net
Income for such period, (ii) an amount equal to the amount of all non-cash
charges to the extent deducted in arriving at such Consolidated Net
Income, (iii) decreases in Consolidated Working Capital for such period
and (iv) an amount equal to the aggregate net non-cash loss on the sale,
lease, transfer or other disposition of assets by the Borrower and the
Restricted Subsidiaries during such period (other than sales in the
ordinary course of business) to the extent deducted in arriving at such
Consolidated Net Income over (b) the sum, without duplication, of (i) an
amount equal to the amount of all non-cash credits included in arriving at
such Consolidated Net Income, (ii) the aggregate amount actually paid by
the Borrower and the Restricted Subsidiaries in cash during such period on
account of Capital Expenditures (excluding the principal amount of
Indebtedness incurred in connection with such Capital Expenditures,
whether incurred in such period or in a subsequent period), (iii) the
aggregate amount of all prepayments of Revolving Credit Loans and
Swingline Loans made during such period to the extent accompanying
14
reductions of the Total Revolving Credit Commitments, (iv) the aggregate
amount of all principal payments of Indebtedness of the Borrower or the
Restricted Subsidiaries (including, without limitation, any Term Loans and
the principal component of payments in respect of Capitalized Lease
Obligations but excluding Revolving Credit Loans and Swingline Loans) made
during such period (other than in respect of any revolving credit facility
to the extent there is not an equivalent permanent reduction in
commitments thereunder), (v) an amount equal to the aggregate net non-cash
gain on the sale, lease, transfer or other disposition of assets by the
Borrower and the Restricted Subsidiaries during such period (other than
sales in the ordinary course of business) to the extent included in
arriving at such Consolidated Net Income, (vi) increases in Consolidated
Working Capital for such period, (vii) payments by the Borrower and the
Restricted Subsidiaries during such period in respect of long-term
liabilities of the Borrower and the Restricted Subsidiaries other than
Indebtedness, (viii) the amount of investments made during such period
pursuant to Section 10.5 to the extent that such investments were financed
with internally generated cash flow of the Borrower and the Restricted
Subsidiaries, (ix) the amount of dividends paid during such period
pursuant to clause (c) or (d) of the proviso to Section 10.6, (x) the
aggregate amount of expenditures actually made by the Borrower and the
Restricted Subsidiaries in cash during such period (including, without
limitation, expenditures for the payment of financing fees) to the extent
that such expenditures are not expensed during such period and (xi) the
aggregate amount of any premium, make-whole or penalty payments actually
paid in cash by the Borrower and the Restricted Subsidiaries during such
period that are required to be made in connection with any prepayment of
Indebtedness and that are accounted for as extraordinary items.
"Existing Credit Agreement" shall mean the Credit Agreement dated as
of November 1, 1993, as amended (as the same may be amended, supplemented
or otherwise modified from time to time), among the Borrower, certain of
the Subsidiaries, the banks party thereto and Texas Commerce Bank National
Association, as agent,.
"Existing Preferred Stock" shall mean (a) the 8,250 shares of Class
A preferred stock, par value $10.00 per share, of the Borrower and (b) the
5,000,000 shares of serial preferred stock, par value $10.00 per share, of
the Borrower, of which serial preferred stock 292,043 shares have been
designated as 8% convertible preferred stock.
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the per annum rates on overnight federal funds 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 of the quotations for the day of such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it.
"Fees" shall mean all amounts payable pursuant to, or referred to
in, Section 4.1.
"Final Date" shall mean the date on which the Revolving Credit
Commitments shall have terminated, no Revolving Credit Loans shall be
outstanding and the Letter of Credit Outstandings shall have been reduced
to zero.
"Foreign Subsidiary" shall mean each Subsidiary of the Borrower that
is not a Domestic Subsidiary.
"Fronting Fee" shall have the meaning provided in Section 4.1(c).
15
"Funded Debt" shall mean all Indebtedness of the Borrower and the
Restricted Subsidiaries for borrowed money that matures more than one year
from the date of its creation or matures within one year from such date
that is renewable or extendable, at the option of the Borrower or one of
the Restricted Subsidiaries, to a date more than one year from such date
or arises under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year
from such date, including, without limitation, all amounts of Funded Debt
required to be paid or prepaid within one year from the date of its
creation and, in the case of the Borrower, Indebtedness in respect of the
Loans.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time; provided,
however, that if there occurs after the date hereof any change in GAAP
that affects in any respect the calculation of any covenant contained in
Section 10, the Lenders and the Borrower shall negotiate in good faith
amendments to the provisions of this Agreement that relate to the
calculation of such covenant with the intent of having the respective
positions of the Lenders and the Borrower after such change in GAAP
conform as nearly as possible to their respective positions as of the date
of this Agreement and, until any such amendments have been agreed upon,
the covenants in Section 10 shall be calculated as if no such change in
GAAP has occurred.
"Governmental Authority" shall mean any nation or government, any
state or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government.
"Guarantee" shall mean and include the Guarantee, made by each
Guarantor in favor of the Administrative Agent for the benefit of the
Lenders, substantially in the form of Exhibit A, as the same may be
amended, supplemented or otherwise modified from time to time.
"Guarantee Obligations" shall mean, as to any Person, any obligation
of such Person guaranteeing or intended to guarantee any Indebtedness of
any other Person (the "primary obligor") in any manner, whether directly
or indirectly, including, without limitation, any obligation of such
Person, whether or not contingent, (a) to purchase any such Indebtedness
or any property constituting direct or indirect security therefor, (b) to
advance or supply funds (i) for the purchase or payment of any such
Indebtedness or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (c) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such Indebtedness
of the ability of the primary obligor to make payment of such Indebtedness
or (d) otherwise to assure or hold harmless the owner of such Indebtedness
against loss in respect thereof; provided, however, that the term
"Guarantee Obligations" shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of
any Guarantee Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the Indebtedness in respect of which such
Guarantee Obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as determined by such Person in
good faith.
"Guarantor" shall mean each Domestic Subsidiary of the Borrower that
is a Restricted Subsidiary and is or becomes a party to the Guarantee.
16
"Hazardous Materials" shall mean (a) any petroleum or petroleum
products, radioactive materials, friable asbestos, urea formaldehyde foam
insulation, transformers or other equipment that contain dielectric fluid
containing regulated levels of polychlorinated biphenyls, and radon gas;
(b) any chemicals, materials or substances defined as or included in the
definition of "hazardous substances", "hazardous waste", "hazardous
materials", "extremely hazardous waste", "restricted hazardous waste",
"toxic substances", "toxic pollutants", "contaminants", or "pollutants",
or words of similar import, under any applicable Environmental Law; and
(c) any other chemical, material or substance, exposure to which is
prohibited, limited or regulated by any Governmental Authority.
"Hedge Agreements" shall mean interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements entered into by the Borrower in order to protect the Borrower
or any of the Restricted Subsidiaries against fluctuations in interest
rates or currency exchange rates.
"Indebtedness" of any Person shall mean (a) all indebtedness of such
Person for borrowed money, (b) the deferred purchase price of assets or
services that in accordance with GAAP would be shown on the liability side
of the balance sheet of such Person, (c) the face amount of all letters of
credit issued for the account of such Person and, without duplication, all
drafts drawn thereunder, (d) all Indebtedness of a second Person secured
by any Lien on any property owned by such first Person, whether or not
such Indebtedness has been assumed, (e) all Capitalized Lease Obligations
of such Person, (f) all obligations of such Person under interest rate
swap, cap or collar agreements, interest rate future or option contracts,
currency swap agreements, currency future or option contracts and other
similar agreements and (g) without duplication, all Guarantee Obligations
of such Person, provided that Indebtedness shall not include trade
payables and accrued expenses, in each case arising in the ordinary course
of business.
"Interest Period" shall mean, with respect to any Term Loan or
Revolving Credit Loan, the interest period applicable thereto, as
determined pursuant to Section 2.9.
"KKR" shall mean each of Kohlberg Kravis Xxxxxxx & Co., L.P. and KKR
Associates, L.P.
"L/C Maturity Date" shall mean the date that is five Business Days
prior to the Revolving Credit Maturity Date.
"L/C Participant" shall have the meaning provided in Section 3.3(a).
"L/C Participation" shall have the meaning provided in Section
3.3(a).
"Lender" shall have the meaning provided in the preamble to this
Agreement.
"Lender Default" shall mean (a) the failure (which has not been
cured) of a Lender to make available its portion of any Borrowing or to
fund its portion of any unreimbursed payment under Section 3.3 or (b) a
Lender having notified the Administrative Agent and/or the Borrower that
it does not intend to comply with the obligations under Section 2.1(b),
2.1(d) or 3.3, in the case of either clause (a) or clause (b) above, as a
result of the appointment of a receiver or conservator with respect to
such Lender at the direction or request of any regulatory agency or
authority.
17
"Letter of Credit" shall mean each standby letter of credit issued
pursuant to Section 3.1.
"Letter of Credit Commitment" shall mean $25,000,000, as the same
may be reduced from time to time pursuant to Section 3.1.
"Letter of Credit Exposure" shall mean, with respect to any Lender,
such Lender's Revolving Credit Commitment Percentage of the Letter of
Credit Outstandings.
"Letter of Credit Fee" shall have the meaning provided in Section
4.1(b).
"Letter of Credit Issuer" shall mean Chase, any of its Affiliates or
any successor pursuant to Section 3.6.
"Letter of Credit Outstandings" shall mean, at any time, the sum of,
without duplication, (a) the aggregate Stated Amount of all outstanding
Letters of Credit and (b) the aggregate amount of all Unpaid Drawings in
respect of all Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in
Section 3.2.
"Level I Status" shall mean, on any date, the Consolidated Total
Debt to Consolidated EBITDA Ratio is greater than or equal to 6.00:1.00 as
of such date.
"Level II Status" shall mean, on any date, the circumstance that
Level I Status does not exist and the Consolidated Total Debt to
Consolidated EBITDA Ratio is greater than or equal to 5.50:1.00 as of such
date.
"Level III Status" shall mean, on any date, the circumstance that
neither Level I Status nor Level II Status exists and the Consolidated
Total Debt to Consolidated EBITDA Ratio is greater than or equal to
5.00:1.00 as of such date.
"Level IV Status" shall mean, on any date, the circumstance that
none of Level I Status, Level II Status or Level III Status exists and the
Consolidated Total Debt to Consolidated EBITDA Ratio is greater than or
equal to 4.50:1.00 as of such date.
"Level V Status" shall mean, on any date, the circumstance that none
of Level I Status, Level II Status, Level III Status or Level IV Status
exists and the Consolidated Total Debt to Consolidated EBITDA Ratio is
greater than or equal to 4.00:1.00 as of such date.
"Level VI Status" shall mean, on any date, the circumstance that
none of Level I Status, Level II Status, Level III Status, Level IV Status
or Level V Status exists and (a) in the case of Revolving Credit Loans and
Swingline Loans, the Consolidated Total Debt to Consolidated EBITDA Ratio
is greater than or equal to 3.50:1.00 as of such date and (b) in the case
of Term Loans, the Consolidated Total Debt to Consolidated EBITDA Ratio is
less than 4.00:1.00 as of such date.
"Level VII Status" shall mean, on any date, in the case of Revolving
Credit Loans and Swingline Loans, the circumstance that none of Level I
Status, Level II Status, Level III Status, Level IV Status, Level V Status
or Level VI Status exists and the Consolidated Total Debt to Consolidated
EBITDA Ratio is greater than or equal to 3:00 1:00 as of such date.
18
"Level VIII Status" shall mean, on any date, in the case of
Revolving Credit Loans and Swingline Loans, the circumstance that the
Consolidated Total Debt to Consolidated EBITDA Ratio is less than
3.00:1.00 as of such date.
"Lien" shall mean any mortgage, pledge, security interest,
hypothecation, assignment, lien (statutory or other) or similar
encumbrance (including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement or any lease in the
nature thereof).
"Loan" shall mean any Revolving Credit Loan, Swingline Loan or Term
Loan made by any Lender hereunder.
"Make-Whole Premium" shall mean the premium over the par value of
the Senior Notes, in an amount computed in accordance with the applicable
terms of the Senior Notes, paid to the holders of the Senior Notes in
connection with the Redemption.
"Management Group" shall mean, at any time, the Chairman of the
Board, the President, any Executive Vice President or Vice President, the
Treasurer and the Secretary of the Borrower at such time.
"Mandatory Borrowing" shall have the meaning provided in Section
2.1(d).
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Change" shall mean any change in the business,
assets, operations, properties or financial condition of the Borrower and
its Subsidiaries taken as a whole that would materially adversely affect
the ability of the Borrower and the other Credit Parties taken as a whole
to perform their obligations under this Agreement and the other Credit
Documents taken as a whole.
"Material Adverse Effect" shall mean a circumstance or condition
affecting the business, assets, operations, properties or financial
condition of the Borrower and its Subsidiaries taken as a whole that would
materially adversely affect (a) the ability of the Borrower and the other
Credit Parties taken as a whole to perform their obligations under this
Agreement and the other Credit Documents taken as a whole or (b) the
rights and remedies of the Administrative Agent and the Lenders under this
Agreement and the other Credit Documents taken as a whole.
"Material Subsidiary" shall mean, at any date of determination, any
Restricted Subsidiary of the Borrower (a) whose total assets at the last
day of the Test Period ending on the last day of the most recent fiscal
period for which Section 9.1 Financials have been delivered were equal to
or greater than 5% of the consolidated total assets of the Borrower and
the Restricted Subsidiaries at such date or (b) whose gross revenues for
such Test Period were equal to or greater than 5% of the consolidated
gross revenues of the Borrower and the Restricted Subsidiaries for such
period, in each case determined in accordance with GAAP.
"Maturity Date" shall mean the Term Loan Maturity Date or the
Revolving Credit Maturity Date.
"Minimum Borrowing Amount" shall mean (a) with respect to a
Borrowing of Term Loans or Revolving Credit Loans, $1,000,000 and (b) with
respect to a Borrowing of Swingline Loans, $100,000.
19
"Minority Investment" shall mean any Person (other than a
Subsidiary) in which the Borrower or any Restricted Subsidiary owns
capital stock or other equity interests.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or any
successor by merger or consolidation to its business.
"Net Cash Proceeds" shall mean, with respect to any Prepayment Event
or any issuance by the Borrower of equity securities, (a) the gross cash
proceeds (including payments from time to time in respect of installment
obligations, if applicable) received by or on behalf of the Borrower or
any of the Restricted Subsidiaries in respect of such Prepayment Event or
issuance, as the case may be, less (b) the sum of:
(i) in the case of any Prepayment Event, the amount, if any,
of all taxes paid or estimated to be payable by the Borrower or any
of the Restricted Subsidiaries in connection with such Prepayment
Event,
(ii) in the case of any Prepayment Event, the amount of any
reasonable reserve established in accordance with GAAP against any
liabilities (other than any taxes deducted pursuant to clause (i)
above) (A) associated with the assets that are the subject of such
Prepayment Event and (B) retained by the Borrower or any of the
Restricted Subsidiaries, provided that the amount of any subsequent
reduction of such reserve (other than in connection with a payment
in respect of any such liability) shall be deemed to be Net Cash
Proceeds of such a Prepayment Event occurring on the date of such
reduction,
(iii) in the case of any Prepayment Event, the amount of any
Indebtedness secured by a Lien on the assets that are the subject of
such Prepayment Event to the extent that the instrument creating or
evidencing such Indebtedness requires that such Indebtedness be
repaid upon consummation of such Prepayment Event,
(iv) in the case of any Asset Sale Prepayment Event, the
amount of any proceeds of such Asset Sale Prepayment Event that the
Borrower has reinvested (or intends to reinvest within one year of
the date of such Asset Sale Prepayment Event) in the business of the
Borrower or any of the Restricted Subsidiaries (subject to Section
9.14), provided that any portion of such proceeds that has not been
so reinvested within such one-year period shall (x) be deemed to be
Net Cash Proceeds of an Asset Sale Prepayment Event occurring on the
last day of such one-year period and (y) be applied to the repayment
of Term Loans in accordance with Section 5.2(a)(i), provided further
that, for purposes of the preceding proviso, such one-year period
shall be extended by up to eighteen months from the last day of such
one-year period so long as (A) such proceeds are to be reinvested
within such additional eighteen-month period under the Borrower's
business plan as most recently adopted in good faith by its Board of
Directors and (B) the Borrower believes in good faith that such
proceeds will be so reinvested within such additional eighteen-month
period, and
(v) in the case of any Prepayment Event or any issuance by the
Borrower of equity securities, reasonable and customary fees,
commissions, expenses, issuance costs, discounts and other costs
paid by the Borrower or any of the Restricted Subsidiaries in
connection with such Prepayment Event or issuance, as the case may
be (other than those payable to the Borrower or any Subsidiary of
the Borrower), in each case only to the extent not already deducted
in arriving at the amount referred to in clause (a) above.
20
"Non-Defaulting Lender" shall mean and include each Lender other
than a Defaulting Lender.
"Non-Excluded Taxes" shall have the meaning provided in Section
5.4(a).
"Notice of Borrowing" shall have the meaning provided in Section
2.3.
"Notice of Conversion or Continuation" shall have the meaning
provided in Section 2.6.
"Obligations" shall mean all monetary amounts of every type or
description at any time owing to the Administrative Agent, any Lender or,
in the case of Hedge Agreements, any affiliate of a Lender pursuant to the
terms of this Agreement, any other Credit Document or any Hedge Agreement.
"Participant" shall have the meaning provided in Section
13.6(a)(ii).
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquisition" shall mean the acquisition, by merger or
otherwise, by the Borrower or any of the Restricted Subsidiaries of assets
or capital stock or other equity interests, so long as (a) such
acquisition and all transactions related thereto shall be consummated in
accordance with applicable law; (b) such acquisition shall, in the case of
the acquisition of capital stock or other equity interests by the Borrower
or any Restricted Domestic Subsidiary, result in the issuer of such
capital stock or other equity interests becoming a Restricted Domestic
Subsidiary and a direct Restricted Domestic Subsidiary in the case of such
an acquisition by the Borrower; (c) after giving effect to such
acquisition, no Default or Event of Default shall have occurred and be
continuing; and (d) the Borrower shall be in compliance, on a pro forma
basis after giving effect to such acquisition (including any Indebtedness
assumed or permitted to exist or incurred pursuant to Sections 10.1(j) and
10.1(k), respectively, and any related Pro Forma Adjustment), with the
covenants set forth in Sections 10.9, 10.10 and 10.11, as such covenants
are recomputed as at the last day of the most recently ended Test Period
under such Sections as if such acquisition had occurred on the first day
of such Test Period.
"Permitted Investments" shall mean (a) securities issued or
unconditionally guaranteed by the United States government or any agency
or instrumentality thereof, in each case having maturities of not more
than 24 months from the date of acquisition thereof; (b) securities issued
by any state of the United States of America or any political subdivision
of any such state or any public instrumentality thereof or any political
subdivision of any such state or any public instrumentality thereof having
maturities of not more than 24 months from the date of acquisition thereof
and, at the time of acquisition, having an investment grade rating
generally obtainable from either S&P or Xxxxx'x (or, if at any time
neither S&P nor Xxxxx'x shall be rating such obligations, then from
another nationally recognized rating service); (c) commercial paper issued
by any Lender or any bank holding company owning any Lender; (d)
commercial paper maturing no more than 12 months after the date of
creation thereof and, at the time of acquisition, having a rating of at
least A-2 or P-2 from either S&P or Moody's (or, if at any time neither
S&P nor Moody's shall be rating such obligations, an equivalent rating
from another nationally recognized rating service); (e) domestic and
eurodollar certificates of deposit or bankers' acceptances maturing no
more than two years after the date of acquisition thereof issued by any
Lender or any other bank having combined
21
capital and surplus of not less than $250,000,000 in the case of domestic
banks and $100,000,000 (or the dollar equivalent thereof) in the case of
foreign banks; (f) repurchase agreements with a term of not more than 30
days for underlying securities of the type described in clauses (a), (b)
and (e) above entered into with any bank meeting the qualifications
specified in clause (e) above or securities dealers of recognized national
standing; (g) shares of investment companies that are registered under the
Investment Company Act of 1940 and invest solely in one or more of the
types of securities described in clauses (a) through (f) above; and (h) in
the case of investments by any Restricted Foreign Subsidiary, other
customarily utilized high-quality investments in the country where such
Restricted Foreign Subsidiary is located.
"Permitted Liens" shall mean (a) Liens for taxes, assessments or
governmental charges or claims not yet due or which are being contested in
good faith and by appropriate proceedings for which appropriate reserves
have been established in accordance with GAAP; (b) Liens in respect of
property or assets of the Borrower or any of its Subsidiaries imposed by
law, such as carriers', warehousemen's and mechanics' Liens and other
similar Liens arising in the ordinary course of business, in each case so
long as such Liens arise in the ordinary course of business and do not
individually or in the aggregate have a Material Adverse Effect; (c) Liens
arising from judgments or decrees in circumstances not constituting an
Event of Default under Section 11.9; (d) Liens incurred or deposits made
in connection with workers' compensation, unemployment insurance and other
types of social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business; (e) ground leases
in respect of real property on which facilities owned or leased by the
Borrower or any of its Subsidiaries are located; (f) easements,
rights-of-way, restrictions, minor defects or irregularities in title and
other similar charges or encumbrances not interfering in any material
respect with the business of the Borrower and its Subsidiaries taken as a
whole; (g) any interest or title of a lessor or secured by a lessor's
interest under any lease permitted by this Agreement; (h) Liens in favor
of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods; (i)
Liens on goods the purchase price of which is financed by a documentary
letter of credit issued for the account of the Borrower or any of its
Subsidiaries, provided that such Lien secures only the obligations of the
Borrower or such Subsidiaries in respect of such letter of credit to the
extent permitted under Section 10.1; and (j) leases or subleases granted
to others not interfering in any material respect with the business of the
Borrower and its Subsidiaries, taken as a whole.
"Permitted Sale Leaseback" shall mean any Sale Leaseback consummated
by the Borrower or any of the Restricted Subsidiaries after the Closing
Date with respect to one or more Stores, provided that (a) such Sale
Leaseback is consummated for fair value as determined at the time of
consummation in good faith by the Borrower and, in the case of any
Permitted Sale Leaseback (or series of related Permitted Sales Leasebacks)
the aggregate proceeds of which exceed $20,000,000, the Board of Directors
of the Borrower (which such determination may take into account any
retained interest or other investment of the Borrower or such Restricted
Subsidiary in connection with, and any other material economic terms of,
such Sale Leaseback) and (b) to the extent such Stores are Closing Date
Stores, the proceeds of such Sale Leaseback are applied to the prepayment
of Term Loans as provided in Section 5.2(a)(i).
22
"Person" shall mean any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or other
enterprise or any Governmental Authority.
"Plan" shall mean any multiemployer or single-employer plan, as
defined in Section 4001 of ERISA and subject to Title IV of ERISA, that is
or was within any of the preceding five plan years maintained or
contributed to by (or to which there is or was an obligation to contribute
or to make payments of) the Borrower, a Subsidiary or an ERISA Affiliate.
"Pledge Agreement" shall mean and include the Pledge Agreement
entered into by the Borrower, the other pledgors party thereto and the
Administrative Agent for the benefit of the Lenders, substantially in the
form of Exhibit B, as the same may be amended, supplemented or otherwise
modified from time to time.
"Prepayment Event" shall mean any Asset Sale Prepayment Event, Debt
Incurrence Prepayment Event or any Permitted Sale Leaseback with respect
to one or more Closing Date Stores.
"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its reference
rate in effect at its principal office in New York City (the Prime Rate
not being intended to be the lowest rate of interest charged by Chase in
connection with extensions of credit to debtors).
"Pro Forma Adjustment" shall mean, for any test period that includes
any of the six fiscal quarters first following any Permitted Acquisition,
with respect to the Acquired EBITDA of the applicable Acquired Entity or
Business, the pro forma increase or decrease in such Acquired EBITDA
projected by the Borrower in good faith as a result of reasonably
identifiable and supportable net cost savings or additional net costs, as
the case may be, realizable during such period by combining the operations
of such Acquired Entity or Business with the operations of the Borrower
and its Subsidiaries, provided that so long as such net cost savings or
additional net costs will be realizable at any time during such period, it
may be assumed, for purposes of projecting such pro forma increase or
decrease to such Acquired EBITDA, that such net cost savings or additional
net costs will be realizable during the entire such period, provided
further that any such pro forma increase or decrease to such Acquired
EBITDA shall be without duplication for net cost savings or additional net
costs actually realized during such period and already included in such
Acquired EBITDA.
"Pro Forma Adjustment Certificate" shall mean any certificate of an
Authorized Officer of the Borrower delivered pursuant to Section 9.1(h) or
setting forth the information described in clause (iv) to Section 9.1(d).
"Putable Shares" shall mean (a) the 613,457 shares of Borrower
Common Stock that were subject to repurchase obligations of the Borrower
pursuant to contractual arrangements in existence on April 1, 1997, minus
(b) any portion of such shares of Borrower Common Stock that are redeemed
in the Redemption.
"Putable Share Reserve Fund" shall mean the amount required for the
Borrower to repurchase the Putable Shares following the Closing Date.
"Recapitalization" shall have the meaning provided in the first
paragraph of this Agreement.
23
"Redemption" shall have the meaning provided in the first paragraph
of this Agreement.
"Reference Lender" shall mean Chase.
"Register" shall have the meaning provided in Section 13.6(c).
"Regulation D" shall mean Regulation D of the Board as from time to
time in effect and any successor to all or a portion thereof establishing
reserve requirements.
"Regulation G" shall mean Regulation G of the Board as from time to
time in effect and any successor to all or a portion thereof establishing
margin requirements.
"Regulation T" shall mean Regulation T of the Board as from time to
time in effect and any successor to all or a portion thereof establishing
margin requirements.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and any successor to all or a portion thereof establishing
margin requirements.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and any successor to all or a portion thereof establishing
margin requirements.
"Remaining Equity" shall mean all the Borrower Common Stock (other
than any Putable Shares) that (a) is in existence on the Closing Date
after giving effect to the Redemption and (b) is not beneficially owned,
directly or indirectly, by KKR, its Affiliates or the Management Group on
the Closing Date pursuant to the 1997 management equity plan, including
any additional Borrower Common Stock or other capital stock or equity
interests in the Borrower issued in respect of such Borrower Common Stock
in existence on the Closing Date as a result of a stock split,
recapitalization, merger, combination, consolidation or otherwise, but
excluding any management equity plan or stock option plan or similar
agreement.
"Repayment Amount" shall have the meaning provided in Section
2.5(b).
"Repayment Date" shall have the meaning provided in Section 2.5(b).
"Reportable Event" shall mean an event described in Section 4043 of
ERISA and the regulations thereunder.
"Required Lenders" shall mean, at any date, (a) Non-Defaulting
Lenders having or holding a majority of the sum of (i) the Adjusted Total
Revolving Credit Commitment at such date, (ii) the Adjusted Total Term
Loan Commitment at such date and (iii) the outstanding principal amount of
the Term Loans (excluding the Term Loans held by Defaulting Lenders) at
such date or (b) if the Total Revolving Credit Commitment and the Total
Term Loan Commitment have been terminated or for the purposes of
acceleration pursuant to Section 11, the holders (excluding Defaulting
Lenders) of a majority of the outstanding principal amount of the Loans
and Letter of Credit Exposures (excluding the Loans and Letter of Credit
Exposures of Defaulting Lenders) in the aggregate at such date.
"Required Revolving Credit Lenders" shall mean, at any date, (a)
Non-Defaulting Lenders having or holding a majority of the Adjusted Total
Revolving Credit Commitment at such date or (b) if the Total Revolving
Credit Commitment has been
24
terminated, the holders (excluding Defaulting Lenders) of a majority of
the outstanding principal amount of the Revolving Credit Loans and Letter
of Credit Exposures (excluding the Loans and Letter of Credit Exposures of
Defaulting Lenders) in the aggregate at such date.
"Required Term Loan Lenders" shall mean, at any date, (a)
Non-Defaulting Lenders having or holding a majority of the sum of (i) the
Adjusted Total Term Loan Commitment at such date and (ii) the outstanding
principal amount of the Term Loans (excluding the Term Loans held by
Defaulting Lenders) in the aggregate at such date or (b) if the Total Term
Loan Commitment has been terminated or for the purposes of acceleration
pursuant to Section 11 , the holders (excluding Defaulting Lenders) of a
majority of the outstanding principal amount of the Term Loans (excluding
the Term Loans of Defaulting Lenders) in the aggregate at such date.
"Requirement of Law" shall mean, as to any Person, the Certificate
of Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority,
in each case applicable to or binding upon such Person or any of its
property or assets or to which such Person or any of its property or
assets is subject.
"Restricted Domestic Subsidiary" shall mean each Restricted
Subsidiary that is also a Domestic Subsidiary.
"Restricted Foreign Subsidiary" shall mean any Foreign Subsidiary
that is also a Restricted Subsidiary.
"Restricted Subsidiary" shall mean any Subsidiary of the Borrower
other than an Unrestricted Subsidiary.
"Revolving Credit Commitment" shall mean, (a) with respect to each
Lender that is a Lender on the date hereof, the amount set forth opposite
such Lender's name on Schedule 1.1 as such Lender's "Revolving Credit
Commitment" and (b) in the case of any Lender that becomes a Lender after
the date hereof, the amount specified as such Lender's "Revolving Credit
Commitment" in the Assignment and Acceptance pursuant to which such Lender
assumed a portion of the Total Revolving Credit Commitment, in each case
as the same may be changed from time to time pursuant to the terms hereof.
"Revolving Credit Commitment Percentage" shall mean at any time, for
each Lender, the percentage obtained by dividing such Lender's Revolving
Credit Commitment by the Total Revolving Credit Commitment, provided that
at any time when the Total Revolving Credit Commitment shall have been
terminated, each Lender's Revolving Credit Commitment Percentage shall be
its Revolving Credit Commitment Percentage as in effect immediately prior
to such termination.
"Revolving Credit Loan" shall have the meaning provided in Section
2.1.
"Revolving Credit Maturity Date" shall mean the date that is seven
years after the Closing Date, or, if such date is not a Business Day, the
next preceding Business Day.
"RFM" shall mean RFM Acquisition LLC, a Delaware limited liability
company, all the members of which are Affiliates of KKR and/or affiliates
of KKR that may be
25
assigned rights related to the Subscription Agreement in accordance with
the terms thereof.
"Sale Leaseback" shall mean any transaction or series of related
transactions pursuant to which the Borrower or any of the Restricted
Subsidiaries sells, transfers or otherwise disposes of any property, real
or personal, whether now owned or hereafter acquired, and thereafter rents
or leases such property or other property that it intends to use for
substantially the same purpose or purposes as the property being sold,
transferred or disposed.
"S&P" shall mean Standard & Poor's Ratings Service or any successor
by merger or consolidation to its business.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Section 9.1 Financials" shall mean the financial statements
delivered, or required to be delivered, pursuant to Section 9.1(a) or (b)
together with the accompanying officer's certificate delivered, or
required to be delivered, pursuant to Section 9.1(e).
"Senior Notes" shall mean the (a) the 8.70% Series A Senior Notes
Due December 1, 2003 of the Borrower in an aggregate principal amount of
$39,500,000, (b) the 9.16% Series B-1 Senior Notes Due December 1, 2005 of
the Borrower in an aggregate principal amount of $71,000,000 and (c) the
9.16% Series B-2 Senior Notes Due December 1, 2003 of the Borrower in an
aggregate principal amount of $25,000,000.
"Sold Entity or Business" shall have the meaning provided in the
definition of the term "Consolidated EBITDA".
"Specified Subsidiary" shall mean, at any date of determination, (a)
any Material Subsidiary or (b) any Unrestricted Subsidiary (i) whose total
assets at the last day of the Test Period ending on the last day of the
most recent fiscal period for which Section 9.1 Financials have been
delivered were equal to or greater than 15% of the consolidated total
assets of the Borrower and its Subsidiaries at such date or (ii) whose
gross revenues for such Test Period were equal to or greater than 15% of
the consolidated gross revenues of the Borrower and its Subsidiaries for
such period, in each case determined in accordance with GAAP.
"Stated Amount" of any Letter of Credit shall mean the maximum
amount from time to time available to be drawn thereunder, determined
without regard to whether any conditions to drawing could then be met.
"Status" shall mean, as to the Borrower as of any date, the
existence of Level I Status, Level II Status, Level III Status, Level IV
Status, Level V Status, Level VI Status, Level VII Status or Level VIII
Status, as the case may be, on such date. Changes in Status resulting from
changes in the Consolidated Total Debt to Consolidated EBITDA Ratio shall
become effective (the date of such effectiveness, the "Effective Date") as
of the first day following the last day of the most recent fiscal year or
period for which (a) Section 9.1 Financials are delivered to the Lenders
under Section 9.1 and (b) an officer's certificate is delivered by the
Borrower to the Lenders setting forth, with respect to such Section 9.1
Financials, the then-applicable Status, and shall remain in effect until
the next change to be effected pursuant to this definition, provided that
(i) if
26
the Borrower shall have made any payments in respect of interest or
commitment fees during the period (the "Interim Period") from and
including the Effective Date to but excluding the day any change in Status
is determined as provided above, then the amount of the next such payment
due on or after such day shall be increased or decreased by an amount
equal to any underpayment or overpayment so made by the Borrower during
such Interim Period, (ii) notwithstanding the foregoing, for the period
from and including the Closing Date to but excluding the day that is 180
days following the Closing Date, the Status of the Borrower for the
purposes of this Agreement shall not be any more favorable to the Borrower
than Level VI Status and (iii) each determination of the Consolidated
Total Debt to Consolidated EBITDA Ratio pursuant to this definition shall
be made with respect to the Test Period ending at the end of the fiscal
period covered by the relevant financial statements.
"Stores" shall mean any facility operated by the Borrower or any of
its Subsidiaries as a grocery store or drug store, or part of such
facility (including, without limitation, related office buildings, parking
lots or other related real property), now or hereafter owned by the
Borrower or any of its Subsidiaries, in each case including, without
limitation, the land on which such facility is located, all buildings and
other improvements thereon, all fixtures, furniture, equipment and other
tangible personal property located in or used in connection with such
facility (other than motor vehicles) related to the ownership, lease or
operation of such facility, all whether now existing or hereafter
acquired.
"Subordinated Note Indenture" shall mean the Indenture dated as of
the date hereof, as the same may be amended, supplemented or otherwise
modified from time to time, between the Borrower and Marine Midland Bank,
as trustee, pursuant to which the Subordinated Notes were issued.
"Subordinated Notes" shall mean the $150,000,000 aggregate principal
amount of Senior Subordinated Notes due 2007 of the Borrower issued on or
about the Closing Date pursuant to the Subordinated Note Indenture.
"Subscription Agreement" shall have the meaning provided in the
first paragraph of this Agreement.
"Subsidiary" of any Person shall mean and include (a) any
corporation more than 50% of whose stock of any class or classes having by
the terms thereof ordinary voting power to elect a majority of the
directors of such corporation (irrespective of whether or not at the time
stock of any class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the time
owned by such Person directly or indirectly through Subsidiaries and (b)
any partnership, association, joint venture or other entity in which such
Person directly or indirectly through Subsidiaries has more than a 50%
equity interest at the time. Unless otherwise expressly provided, all
references herein to a "Subsidiary" shall mean a Subsidiary of the
Borrower.
"Swingline Commitment" shall mean $25,000,000.
"Swingline Loans" shall have the meaning provided in Section 2.1(c).
"Swingline Maturity Date" shall mean, with respect to any Swingline
Loan, the date that is five Business Days prior to the Revolving Credit
Maturity Date.
27
"Syndication Agent" shall mean National Westminster Bank Plc,
together with its affiliates, as the syndication agent for the Lenders
under this Agreement and the other Credit Documents.
"Term Loan" shall have the meaning provided in Section 2.1.
"Term Loan Availability Period" shall mean the period from and
including the Closing Date to but excluding the day that is 180 days
following the Closing Date.
"Term Loan Commitment" shall mean, (a) in the case of each Lender
that is a Lender on the date hereof, the amount set forth opposite such
Lender's name on Schedule 1.1 as such Lender's "Term Loan Commitment" and
(b) in the case of any Lender that becomes a Lender after the date hereof,
the amount specified as such Lender's "Term Loan Commitment" in the
Assignment and Acceptance pursuant to which such Lender assumed a portion
of the Total Term Loan Commitment, in each case as the same may be changed
from time to time pursuant to the terms hereof.
"Term Loan Maturity Date" shall mean the date that is nine years
after the Closing Date, or, if such Date is not a Business Day, the next
preceding Business Day.
"Test Period" shall mean, for any determination under this
Agreement, the four consecutive fiscal quarters of the Borrower then last
ended.
"Three-Month Secondary CD Rate" shall mean, for any day, the
secondary market rate, expressed as a per annum rate, for three-month
certificates of deposit reported as being in effect on such day (or, if
such day shall not be a Business Day, the next preceding Business Day) by
the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of
the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate shall not be so
reported on such day or such next preceding Business Day, the average of
the secondary market quotations for three-month certificates of deposit of
major money center banks in New York City received at approximately 10:00
A.M., New York time, on such day (or, if such day shall not be a Business
Day, on the next preceding Business Day) by the Administrative Agent from
three New York City negotiable certificate of deposit dealers of
recognized standing selected by it.
"Total Commitment" shall mean the sum of the Total Term Loan
Commitment and the Total Revolving Credit Commitment.
"Total Credit Exposure" shall mean, at any date, the sum of (a) the
Total Revolving Credit Commitment at such date, (b) the Total Term Loan
Commitment at such date and (c) the outstanding principal amount of all
Term Loans at such date.
"Total Revolving Credit Commitment" shall mean the sum of the
Revolving Credit Commitments of all the Lenders.
"Total Term Loan Commitment" shall mean the sum of the Term Loan
Commitments of all the Lenders.
"Transaction Expenses" shall mean any fees or expenses incurred or
paid by the Borrower or any of its Subsidiaries in connection with the
Recapitalization, the financing
28
therefor and the other transactions contemplated hereby and thereby
(including the Make-Whole Premium).
"Transferee" shall have the meaning provided in Section 13.6(e).
"Type" shall mean (a) as to any Term Loan, its nature as an ABR Loan
or a Eurodollar Term Loan and (b) as to any Revolving Credit Loan, its
nature as an ABR Loan or a Eurodollar Revolving Credit Loan.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the present value of the accrued benefits under the Plan as
of the close of its most recent plan year, determined in accordance with
Statement of Financial Accounting Standards No. 87 as in effect on the
date hereof, based upon the actuarial assumptions that would be used by
the Plan's actuary in a termination of the Plan, exceeds the fair market
value of the assets allocable thereto.
"Unpaid Drawing" shall have the meaning provided in Section 3.4(a).
"Unrestricted Subsidiary" shall mean (a) any Subsidiary of the
Borrower that is formed or acquired after the Closing Date, provided that
at such time (or promptly thereafter) the Borrower designates such
Subsidiary an Unrestricted Subsidiary in a written notice to the
Administrative Agent, (b) any Restricted Subsidiary on the Closing Date
subsequently re-designated as an Unrestricted Subsidiary by the Borrower
in a written notice to the Administrative Agent, provided that such
re-designation shall be deemed to be an investment on the date of such
re-designation in an Unrestricted Subsidiary in an amount equal to the sum
of (i) the net worth of such re-designated Restricted Subsidiary
immediately prior to such re-designation (such net worth to be calculated
without regard to any Guarantee provided by such re-designated Restricted
Subsidiary) and (ii) the aggregate principal amount of any Indebtedness
owed by such re-designated Restricted Subsidiary to the Borrower or any
other Restricted Subsidiary immediately prior to such re-designation, all
calculated, except as set forth in the parenthetical to clause (i), on a
consolidated basis in accordance with GAAP, and (c) each Subsidiary of an
Unrestricted Subsidiary; provided, however, that (i) at the time of any
written re-designation by the Borrower to the Administrative Agent of any
Unrestricted Subsidiary as a Restricted Subsidiary, the Unrestricted
Subsidiary so re-designated shall no longer constitute an Unrestricted
Subsidiary, (ii) no Unrestricted Subsidiary may be re-designated as a
Restricted Subsidiary if a Default or Event of Default would result from
such re-designation and (iii) no Restricted Subsidiary may be
re-designated as an Unrestricted Subsidiary if a Default or Event of
Default would result from such re-designation. On or promptly after the
date of its formation, acquisition or re-designation, as applicable, each
Unrestricted Subsidiary (other than an Unrestricted Subsidiary that is a
Foreign Subsidiary) shall have entered into a tax sharing agreement
containing terms that, in the reasonable judgment of the Administrative
Agent, provide for an appropriate allocation of tax liabilities and
benefits.
"Voting Stock" shall mean, with respect to any Person, shares of
such Person's capital stock having the right to vote for the election of
directors of such Person under ordinary circumstances.
29
SECTION 2. Amount and Terms of Credit.
2.1 Commitments. (a) Subject to and upon the terms and conditions
herein set forth, each Lender having a Term Loan Commitment severally agrees to
make a loan or loans (each a "Term Loan" and, collectively, the "Term Loans") to
the Borrower, which Term Loans (i) shall be made on the Closing Date and on any
other single date during the Term Loan Availability Period, (ii) may, at the
option of the Borrower, be incurred and maintained as, and/or converted into,
ABR Loans or Eurodollar Term Loans, provided that all Term Loans made by each of
the Lenders pursuant to the same Borrowing shall, unless otherwise specifically
provided herein, consist entirely of Term Loans of the same Type, (iii) may be
repaid in accordance with the provisions hereof, but once repaid, may not be
reborrowed, (iv) shall not exceed for any such Lender the Term Loan Commitment
of such Lender and (v) shall not exceed in the aggregate the Total Term Loan
Commitment. On the Term Loan Maturity Date, all Term Loans shall be repaid in
full.
(b) Subject to and upon the terms and conditions herein set forth,
each Lender having a Revolving Credit Commitment severally agrees to make a loan
or loans (each a "Revolving Credit Loan" and, collectively, the "Revolving
Credit Loans") to the Borrower, which Revolving Credit Loans (i) shall be made
at any time and from time to time on and after the Closing Date and prior to the
Revolving Credit Maturity Date, (ii) may, at the option of the Borrower, be
incurred and maintained as, and/or converted into, ABR Loans or Eurodollar
Revolving Credit Loans, provided that all Revolving Credit Loans made by each of
the Lenders pursuant to the same Borrowing shall, unless otherwise specifically
provided herein, consist entirely of Revolving Credit Loans of the same Type,
(iii) may be repaid and reborrowed in accordance with the provisions hereof,
(iv) shall not exceed for any such Lender at any time outstanding that aggregate
principal amount which, when added to the product of (x) such Lender's Revolving
Credit Commitment Percentage and (y) the sum of (I) the aggregate Letter of
Credit Outstandings at such time and (II) the aggregate principal amount of all
Swingline Loans then outstanding, equals the Revolving Credit Commitment of such
Lender at such time and (v) shall not, after giving effect thereto and to the
application of the proceeds thereof, exceed for all Lenders at any time
outstanding the aggregate principal amount that, when added to the sum of (x)
the Letter of Credit Outstandings at such time and (y) the aggregate principal
amount of all Swingline Loans then outstanding, equals the Total Revolving
Credit Commitment then in effect. On the Revolving Credit Maturity Date, all
Revolving Credit Loans shall be repaid in full.
(c) Subject to and upon the terms and conditions herein set forth,
Chase in its individual capacity agrees, at any time and from time to time on
and after the Closing Date and prior to the Swingline Maturity Date, to make a
loan or loans (each a "Swingline Loan" and, collectively, the "Swingline Loans")
to the Borrower, which Swingline Loans (i) shall be ABR Loans, (ii) shall have
the benefit of the provisions of Section 2.1(d), (iii) shall not exceed at any
time outstanding the Swingline Commitment, (iv) shall not, after giving effect
thereto and to the application of the proceeds thereof, exceed in the aggregate
at any time outstanding the principal amount that, when added to the aggregate
principal amount of all Revolving Credit Loans then outstanding and all Letter
of Credit Outstandings at such time, equals the Total Revolving Credit
Commitment then in effect and (v) may be repaid and reborrowed in accordance
with the provisions hereof. On the Swingline Maturity Date, each outstanding
Swingline Loan shall be repaid in full. Chase shall not make any Swingline Loan
after receiving a written notice from the Borrower or any Lender stating that a
Default or Event of Default exists and is continuing until such time as Chase
shall have received written notice of (i) rescission of all such notices from
the party or parties originally delivering such notice or (ii) the waiver of
such Default or Event of Default in accordance with the provisions of Section
13.1.
30
(d) On any Business Day, Chase may, in its sole discretion, give
notice to the Lenders that all then-outstanding Swingline Loans shall be funded
with a Borrowing of Revolving Credit Loans, in which case a Borrowing of
Revolving Credit Loans constituting ABR Loans (each such Borrowing, a "Mandatory
Borrowing") shall be made on the immediately succeeding Business Day by all
Lenders pro rata based on each Lender's Revolving Credit Commitment Percentage,
and the proceeds thereof shall be applied directly to Chase to repay Chase for
such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make
such Revolving Credit Loans upon one Business Day's notice pursuant to each
Mandatory Borrowing in the amount and in the manner specified in the preceding
sentence and on the date specified to it in writing by Chase notwithstanding (i)
that the amount of the Mandatory Borrowing may not comply with the minimum
amount for each Borrowing specified in Section 2.2, (ii) whether any conditions
specified in Section 7 are then satisfied, (iii) whether a Default or an Event
of Default has occurred and is continuing, (iv) the date of such Mandatory
Borrowing or (v) any reduction in the Total Commitment after any such Swingline
Loans were made. In the event that, in the sole judgment of Chase, any Mandatory
Borrowing cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of a proceeding
under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees
that it shall forthwith purchase from Chase (without recourse or warranty) such
participation of the outstanding Swingline Loans as shall be necessary to cause
the Lenders to share in such Swingline Loans ratably based upon their respective
Revolving Credit Commitment Percentages, provided that all principal and
interest payable on such Swingline Loans shall be for the account of Chase until
the date the respective participation is purchased and, to the extent
attributable to the purchased participation, shall be payable to the Lender
purchasing same from and after such date of purchase.
2.2 Minimum Amount of Each Borrowing; Maximum Number of Borrowings.
The aggregate principal amount of each Borrowing of Term Loans, Revolving Credit
Loans or Swingline Loans shall be in a multiple of $100,000 and shall not be
less than the Minimum Borrowing Amount with respect thereto (except that
Mandatory Borrowings shall be made in the amounts required by Section 2.1(d)).
More than one Borrowing may be incurred on any date, provided that at no time
shall there be outstanding more than 20 Borrowings of Eurodollar Loans under
this Agreement.
2.3 Notice of Borrowing. (a) The Borrower shall give the
Administrative Agent at the Administrative Agent's Office (i) prior to 12:00
Noon (New York time) at least three Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) of the Borrowing of Term Loans
if all or any of such Term Loans are to be initially Eurodollar Loans and (ii)
prior written notice (or telephonic notice promptly confirmed in writing) prior
to 10:00 A.M. (New York time) on the date of the Borrowing of Term Loans if all
such Term Loans are to be ABR Loans. Such notice (together with each notice of a
Borrowing of Revolving Credit Loans pursuant to Section 2.3(b) and each notice
of a Borrowing of Swingline Loans pursuant to Section 2.3(c), a "Notice of
Borrowing") shall be irrevocable and shall specify (i) the aggregate principal
amount of the Term Loans to be made, (ii) the date of the borrowing (which shall
be a Business Day and, in the case of the initial borrowing, shall be the
Closing Date) and (iii) whether the Term Loans shall consist of ABR Loans and/or
Eurodollar Term Loans and, if the Term Loans are to include Eurodollar Term
Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall promptly give each Lender written notice (or
telephonic notice promptly confirmed in writing) of each proposed Borrowing of
Term Loans, of such Lender's proportionate share thereof and of the other
matters covered by the related Notice of Borrowing.
(b) Whenever the Borrower desires to incur Revolving Credit Loans
hereunder (other than Mandatory Borrowings or borrowings to repay Unpaid
Drawings), it shall give the
31
Administrative Agent at the Administrative Agent's Office (i) prior to 12:00
Noon (New York time) at least three Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) of each Borrowing of Eurodollar
Revolving Credit Loans and (ii) prior to 12:00 Noon (New York time) at least one
Business Day's prior written notice (or telephonic notice promptly confirmed in
writing) of each Borrowing of ABR Loans. Each such Notice of Borrowing, except
as otherwise expressly provided in Section 2.10, shall be irrevocable and shall
specify (i) the aggregate principal amount of the Revolving Credit Loans to be
made pursuant to such Borrowing, (ii) the date of Borrowing (which shall be a
Business Day) and (iii) whether the respective Borrowing shall consist of ABR
Loans or Eurodollar Revolving Credit Loans and, if Eurodollar Revolving Credit
Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall promptly give each Lender written notice (or
telephonic notice promptly confirmed in writing) of each proposed Borrowing of
Revolving Credit Loans, of such Lender's proportionate share thereof and of the
other matters covered by the related Notice of Borrowing.
(c) Whenever the Borrower desires to incur Swingline Loans
hereunder, it shall give the Administrative Agent written notice (or telephonic
notice promptly confirmed in writing) of each Borrowing of Swingline Loans prior
to 1:00 P.M. (New York time) on the date of such Borrowing. Each such notice
shall be irrevocable and shall specify (i) the aggregate principal amount of the
Swingline Loans to be made pursuant to such Borrowing and (ii) the date of
Borrowing (which shall be a Business Day). The Administrative Agent shall
promptly give Chase written notice (or telephonic notice promptly confirmed in
writing) of each proposed Borrowing of Swingline Loans and of the other matters
covered by the related Notice of Borrowing.
(d) Mandatory Borrowings shall be made upon the notice specified in
Section 2.1(d), with the Borrower irrevocably agreeing, by its incurrence of any
Swingline Loan, to the making of Mandatory Borrowings as set forth in such
Section.
(e) Borrowings to reimburse Unpaid Drawings shall be made upon the
notice specified in Section 3.4(c).
(f) Without in any way limiting the obligation of the Borrower to
confirm in writing any notice it may give hereunder by telephone, the
Administrative Agent may act prior to receipt of written confirmation without
liability upon the basis of such telephonic notice believed by the
Administrative Agent in good faith to be from an Authorized Officer of the
Borrower. In each such case the Borrower hereby waives the right to dispute the
Administrative Agent's record of the terms of any such telephonic notice.
2.4 Disbursement of Funds. (a) No later than 12:00 Noon (New York
time) on the date specified in each Notice of Borrowing (including Mandatory
Borrowings), each Lender will make available its pro rata portion, if any, of
each Borrowing requested to be made on such date in the manner provided below,
provided that all Swingline Loans shall be made available in the full amount
thereof by Chase no later than 2:00 P.M. (New York time) on the date requested.
(b) Each Lender shall make available all amounts it is to fund under
any Borrowing in Dollars and immediately available funds to the Administrative
Agent at the Administrative Agent's Office and the Administrative Agent will
(except in the case of Mandatory Borrowings and Borrowings to repay Unpaid
Drawings) make available to the Borrower by depositing to the Borrower's account
at the Administrative Agent's Office the aggregate of the amounts so made
available in Dollars and the type of funds received. Unless the Administrative
Agent shall have been notified by any Lender prior to the date of any such
Borrowing that such Lender does not intend to make available to the
Administrative Agent its
32
portion of the Borrowing or Borrowings to be made on such date, the
Administrative Agent may assume that such Lender has made such amount available
to the Administrative Agent on such date of Borrowing, and the Administrative
Agent, in reliance upon such assumption, may (in its sole discretion and without
any obligation to do so) make available to the Borrower a corresponding amount.
If such corresponding amount is not in fact made available to the Administrative
Agent by such Lender and the Administrative Agent has made available same to the
Borrower, the Administrative Agent shall be entitled to recover such
corresponding amount from such Lender. If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent's demand therefor,
the Administrative Agent shall promptly notify the Borrower, and the Borrower
shall immediately pay such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover from such Lender or the
Borrower, as the case may be, interest on such corresponding amount in respect
of each day from the date such corresponding amount was made available by the
Administrative Agent to the Borrower to the date such corresponding amount is
recovered by the Administrative Agent, at a rate per annum equal to (i) if paid
by such Lender, the Federal Funds Effective Rate or (ii) if paid by the
Borrower, the then-applicable rate of interest, calculated in accordance with
Section 2.8, for the respective Loans.
(c) Nothing in this Section 2.4 shall be deemed to relieve any
Lender from its obligation to fulfill its commitments hereunder or to prejudice
any rights that the Borrower may have against any Lender as a result of any
default by such Lender hereunder (it being understood, however, that no Lender
shall be responsible for the failure of any other Lender to fulfill its
commitments hereunder).
2.5 Repayment of Loans; Evidence of Debt. (a) The Borrower shall
repay to the Administrative Agent, for the benefit of the Lenders, (i) on the
Term Loan Maturity Date, the then-unpaid Term Loans, and (ii) on the Revolving
Credit Maturity Date, the then-unpaid Revolving Credit Loans. The Borrower shall
repay to the Administrative Agent, for the account of Chase, on the Swingline
Maturity Date, the then-unpaid Swingline Loans.
(b) The Borrower shall repay to the Administrative Agent, for the
benefit of the Lenders of Term Loans, on each date set forth below (each a
"Repayment Date"), the principal amount of the Term Loans set forth below
opposite such Repayment Date (each a "Repayment Amount"):
Number of Months From Closing Date Repayment Amount
---------------------------------- ----------------
12 $ 500,000
24 500,000
36 500,000
48 500,000
60 500,000
72 500,000
84 500,000
96 500,000
108 121,000,000
To the extent that the aggregate principal amount of Term Loans outstanding on
the last day of the Term Loan Availability Period is less than $125,000,000, the
Repayment Amounts shall automatically be decreased, in the inverse order of
maturity, by the amount of such difference.
(c) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to the
appropriate lending office of such
33
Lender resulting from each Loan made by such lending office of such Lender from
time to time, including the amounts of principal and interest payable and paid
to such lending office of such Lender from time to time under this Agreement.
(d) The Administrative Agent shall maintain the Register pursuant to
Section 13.6, and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount of each Loan made
hereunder, whether such Loan is a Term Loan, a Revolving Credit Loan or a
Swingline Loan, the Type of each Loan made and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender or Chase hereunder and
(iii) the amount of any sum received by the Agent hereunder from the Borrower
and each Lender's share thereof.
(e) The entries made in the Register and accounts and subaccounts
maintained pursuant to paragraphs (c) and (d) of this Section 2.5 shall, to the
extent permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Borrower therein recorded; provided, however,
that the failure of any Lender or the Administrative Agent to maintain such
account, such Register or such subaccount, as applicable, or any error therein,
shall not in any manner affect the obligation of the Borrower to repay (with
applicable interest) the Loans made to the Borrower by such Lender in accordance
with the terms of this Agreement.
2.6 Conversions and Continuations. (a) The Borrower shall have the
option on any Business Day to convert all or a portion equal to at least the
Minimum Borrowing Amount of the outstanding principal amount of Term Loans or
Revolving Credit Loans of one Type into a Borrowing or Borrowings of another
Type or to continue the outstanding principal amount of any Eurodollar Term
Loans or Eurodollar Revolving Credit Loans as Eurodollar Term Loans or
Eurodollar Revolving Credit Loans, as the case may be, for an additional
Interest Period, provided that (i) no partial conversion of Eurodollar Term
Loans or Eurodollar Revolving Credit Loans shall reduce the outstanding
principal amount of Eurodollar Term Loans or Eurodollar Revolving Credit Loans
made pursuant to a single Borrowing to less than the Minimum Borrow ing Amount,
(ii) ABR Loans may not be converted into Eurodollar Term Loans or Eurodollar
Revolving Credit Loans if a Default or Event of Default is in existence on the
date of the conversion and the Administrative Agent has or the Required Lenders
have determined in its or their sole discretion not to permit such conversion,
(iii) Eurodollar Loans may not be continued as Eurodollar Term Loans or
Eurodollar Revolving Credit Loans for an additional Interest Period if a Default
or Event of Default is in existence on the date of the proposed continuation and
the Administrative Agent has or the Required Lenders have determined in its or
their sole discretion not to permit such continuation and (iv) Borrowings
resulting from conversions pursuant to this Section 2.6 shall be limited in
number as provided in Section 2.2. Each such conversion or continuation shall be
effected by the Borrower by giving the Administrative Agent at the
Administrative Agent's Office prior to 12:00 Noon (New York time) at least three
Business Days' (or one Business Day's notice in the case of a conversion into
ABR Loans) prior written notice (or telephonic notice promptly confirmed in
writing) (each a "Notice of Conversion or Continuation") specifying the Term
Loans or Revolving Credit Loans to be so converted or continued, the Type of
Term Loans or Revolving Credit Loans to be converted or continued into and, if
such Term Loans or Revolving Credit Loans are to be converted into or continued
as Eurodollar Term Loans or Eurodollar Revolving Credit Loans, the Interest
Period to be initially applicable thereto. The Administrative Agent shall give
each Lender notice as promptly as practicable of any such proposed conversion or
continuation affecting any of its Term Loans or Revolving Credit Loans.
(b) If any Default or Event of Default is in existence at the time of any
proposed continuation of any Eurodollar Term Loans or Eurodollar Revolving
Credit Loans and the Administrative Agent has or the Required Lenders have
determined in its or their sole discretion
34
not to permit such continuation, such Eurodollar Term Loans or Eurodollar
Revolving Credit Loans shall be automatically converted on the last day of the
current Interest Period into ABR Loans. If upon the expiration of any Interest
Period in respect of Eurodollar Term Loans or Eurodollar Revolving Credit Loans,
the Borrower has failed to elect a new Interest Period to be applicable thereto
as provided in paragraph (a) above, the Borrower shall be deemed to have elected
to convert such Borrowing of Eurodollar Term Loans or Eurodollar Revolving
Credit Loans, as the case may be, into a Borrowing of ABR Loans effective as of
the expiration date of such current Interest Period.
2.7 Pro Rata Borrowings. Each Borrowing of Term Loans or Revolving
Credit Loans under this Agreement shall be granted by the Lenders pro rata on
the basis of their then-applicable Commitments. It is understood that no Lender
shall be responsible for any default by any other Lender in its obligation to
make Loans hereunder and that each Lender shall be obligated to make the Loans
provided to be made by it hereunder, regardless of the failure of any other
Lender to fulfill its commitments hereunder.
2.8 Interest. (a) The unpaid principal amount of each ABR Loan shall
bear interest from the date of the Borrowing thereof until maturity (whether by
acceleration or otherwise) at a rate per annum that shall at all times be the
Applicable ABR Margin plus the ABR in effect from time to time.
(b) The unpaid principal amount of each Eurodollar Term Loan or Eurodollar
Revolving Credit Loan shall bear interest from the date of the Borrowing thereof
until maturity thereof (whether by acceleration or otherwise) at a rate per
annum that shall at all times be the Applicable Eurodollar Margin in effect from
time to time plus the relevant Eurodollar Rate.
(c) If all or a portion of (i) the principal amount of any Loan or (ii)
any interest payable thereon shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum that is (x) in the case of overdue principal, the rate that
would otherwise be applicable thereto plus 2% or (y) in the case of any overdue
interest, to the extent permitted by applicable law, the rate described in
Section 2.8(a) plus 2% from and including the date of such non-payment to but
excluding the date on which such amount is paid in full (after as well as before
judgment).
(d) Interest on each Loan shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof and shall be
payable (i) in respect of each ABR Loan, quarterly in arrears on the last day of
each March, June, September and December, (ii) in respect of each Eurodollar
Term Loan or Eurodollar Revolving Credit Loan, on the last day of each Interest
Period applicable thereto and, in the case of an Interest Period in excess of
three months, on each date occurring at three-month intervals after the first
day of such Interest Period, (iii) in respect of each Loan (except, in the case
of prepayments, any ABR Loan), on any prepayment (on the amount prepaid), at
maturity (whether by acceleration or otherwise) and, after such maturity, on
demand.
(e) All computations of interest hereunder shall be made in accordance
with Section 5.5.
(f) The Administrative Agent, upon determining the interest rate for any
Borrowing of Eurodollar Loans, shall promptly notify the Borrower and the
relevant Lenders thereof. Each such determination shall, absent clearly
demonstrable error, be final and conclusive and binding on all parties hereto.
2.9 Interest Periods. At the time the Borrower gives a Notice of
Borrowing or Notice of Conversion or Continuation in respect of the making of,
or conversion into or
35
continuation as, a Borrowing of Eurodollar Term Loans or Eurodollar Revolving
Credit Loans (in the case of the initial Interest Period applicable thereto) or
prior to 10:00 A.M. (New York time) on the third Business Day prior to the
expiration of an Interest Period applicable to a Borrowing of Eurodollar Term
Loans or Eurodollar Revolving Credit Loans, the Borrower shall have the right to
elect by giving the Administrative Agent written notice (or telephonic notice
promptly confirmed in writing) the Interest Period applicable to such Borrowing,
which Interest Period shall, at the option of the Borrower, be a one, two,
three, six or (in the case of Revolving Credit Loans, if available to all the
Lenders making such loans as determined by such Lenders in good faith based on
prevailing market conditions) a nine or twelve month period. Notwith standing
anything to the contrary contained above:
(a) the initial Interest Period for any Borrowing of Eurodollar Term
Loans or Eurodollar Revolving Credit Loans shall commence on the date of such
Borrowing (including the date of any conversion from a Borrowing of ABR Loans)
and each Interest Period occurring thereafter in respect of such Borrowing
shall commence on the day on which the next preceding Interest Period expires;
(b) if any Interest Period relating to a Borrowing of Eurodollar Term
Loans or Eurodollar Revolving Credit Loans begins on the last Business Day of
a calendar month or begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period,
such Interest Period shall end on the last Business Day of the calendar month
at the end of such Interest Period;
(c) if any Interest Period would otherwise expire on a day that is not a
Business Day, such Interest Period shall expire on the next succeeding
Business Day, provided that if any Interest Period in respect of a Eurodollar
Term Loan or Eurodollar Revolving Credit Loan would otherwise expire on a day
that is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on the
next preceding Business Day; and
(d) the Borrower shall not be entitled to elect any Interest Period in
respect of any Eurodollar Term Loan or Eurodollar Revolving Credit Loan if
such Interest Period would extend beyond the applicable Maturity Date of such
Loan.
2.10 Increased Costs, Illegality, etc. (a) In the event that (x) in
the case of clause (i) below, the Administrative Agent or (y) in the case of
clauses (ii) and (iii) below, any Lender shall have reasonably determined (which
determination shall, absent clearly demonstrable error, be final and conclusive
and binding upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for any Interest
Period that, by reason of any changes arising on or after the Closing Date
affecting the interbank Eurodollar market, adequate and fair means do not
exist for ascertaining the applicable interest rate on the basis provided for
in the definition of Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to any
Eurodollar Loans (other than any such increase or reduction attributable to
taxes) because of (x) any change since the date hereof in any applicable law,
governmental rule, regulation, guideline or order (or in the interpretation or
administration thereof and including the introduction of any new law or
governmental rule, regulation, guideline or order), such as, for example, but
not limited to, a change in official reserve requirements, and/or (y) other
circumstances affecting the interbank Eurodollar market or the position of
such Lender in such market; or
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(iii) at any time, that the making or continuance of any Eurodollar Loan
has become unlawful by compliance by such Lender in good faith with any law,
governmental rule, regulation, guideline or order (or would conflict with any
such governmental rule, regulation, guideline or order not having the force of
law even though the failure to comply therewith would not be unlawful), or has
become impracticable as a result of a contingency occurring after the date
hereof that materially and adversely affects the interbank Eurodollar market;
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i) above) shall within a reasonable time thereafter give notice
(if by telephone confirmed in writing) to the Borrower and to the Administrative
Agent of such determination (which notice the Administrative Agent shall
promptly transmit to each of the other Lenders). Thereafter (x) in the case of
clause (i) above, Eurodollar Term Loans and Eurodollar Revolving Credit Loans
shall no longer be available until such time as the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such
notice by the Administrative Agent no longer exist (which notice the
Administrative Agent agrees to give at such time when such circumstances no
longer exist), and any Notice of Borrowing or Notice of Conversion given by the
Borrower with respect to Eurodollar Term Loans or Eurodollar Revolving Credit
Loans that have not yet been incurred shall be deemed rescinded by the Borrower,
(y) in the case of clause (ii) above, the Borrower shall pay to such Lender,
promptly after receipt of written demand therefor, such additional amounts (in
the form of an increased rate of, or a different method of calculating, interest
or otherwise as such Lender in its reasonable discretion shall determine) as
shall be required to compensate such Lender for such increased costs or
reductions in amounts receivable hereunder (it being agreed that a written
notice as to the additional amounts owed to such Lender, showing in reasonable
detail the basis for the calculation thereof, submitted to the Borrower by such
Lender shall, absent clearly demonstrable error, be final and conclusive and
binding upon all parties hereto) and (z) in the case of clause (iii) above, the
Borrower shall take one of the actions specified in Section 2.10(b) as promptly
as possible and, in any event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the circumstances
described in Section 2.10(a)(ii) or (iii), the Borrower may (and in the case of
a Eurodollar Loan affected pursuant to Section 2.10(a)(iii) shall) either (i) if
the affected Eurodollar Loan is then being made pursuant to a Borrowing, cancel
said Borrowing by giving the Administrative Agent telephonic notice (confirmed
promptly in writing) thereof on the same date that the Borrower was notified by
a Lender pursuant to Section 2.10(a)(ii) or (iii) or (ii) if the affected
Eurodollar Loan is then outstanding, upon at least three Business Days' notice
to the Administrative Agent, require the affected Lender to convert each such
Eurodollar Revolving Credit Loan and Eurodollar Term Loan into an ABR Loan,
provided that if more than one Lender is affected at any time, then all affected
Lenders must be treated in the same manner pursuant to this Section 2.10(b).
(c) If, after the date hereof, the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or any change in
the interpretation or administration thereof by any governmental authority, the
National Association of Insurance Commissioners, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by a Lender or its parent with any request or directive made or adopted after
the date hereof regarding capital adequacy (whether or not having the force of
law) of any such authority, association, central bank or comparable agency, has
or would have the effect of reducing the rate of return on such Lender's or its
parent's capital or assets as a consequence of such Lender's commitments or
obligations hereunder to a level below that which such Lender or its parent
could have achieved but for such adoption, effectiveness, change or compliance
(taking into consideration such Lender's or its parent's policies with respect
to capital adequacy), then from time to time, promptly after demand by such
Lender
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(with a copy to the Administrative Agent), the Borrower shall pay to such Lender
such additional amount or amounts as will compensate such Lender or its parent
for such reduction, it being understood and agreed, however, that a Lender shall
not be entitled to such compensation as a result of such Lender's compliance
with, or pursuant to any request or directive to comply with, any such law, rule
or regulation as in effect on the date hereof. Each Lender, upon determining in
good faith that any additional amounts will be payable pursuant to this Section
2.10(c), will give prompt written notice thereof to the Borrower, which notice
shall set forth in reasonable detail the basis of the calculation of such
additional amounts, although the failure to give any such notice shall not,
subject to Section 2.13, release or diminish any of the Borrower's obligations
to pay additional amounts pursuant to this Section 2.10(c) upon receipt of such
notice.
2.11 Compensation. If (a) any payment of principal of any Eurodollar
Term Loan or Eurodollar Revolving Credit Loan is made by the Borrower to or for
the account of a Lender other than on the last day of the Interest Period for
such Eurodollar Loan as a result of a payment or conversion pursuant to Section
2.5, 2.6, 2.10, 5.1, 5.2 or 13.7, as a result of acceleration of the maturity of
the Loans pursuant to Section 11 or for any other reason, (b) any Borrowing of
Eurodollar Term Loans or Eurodollar Revolving Credit Loans is not made as a
result of a withdrawn Notice of Borrowing, (c) any ABR Loan is not converted
into a Eurodollar Term Loan or Eurodollar Revolving Credit Loan as a result of a
withdrawn Notice of Conversion or Continuation, (d) any Eurodollar Loan is not
continued as a Eurodollar Term Loan or Eurodollar Revolving Credit Loan as a
result of a withdrawn Notice of Conversion or Continuation or (e) any prepayment
of principal of any Eurodollar Term Loan or Eurodollar Revolving Credit Loan is
not made as a result of a withdrawn notice of prepayment pursuant to Section 5.1
or 5.2, the Borrower shall, after receipt of a written request by such Lender
(which request shall set forth in reasonable detail the basis for requesting
such amount), pay to the Administrative Agent for the account of such Lender any
amounts required to compensate such Lender for any additional losses, costs or
expenses that such Lender may reasonably incur as a result of such payment,
failure to convert, failure to continue or failure to prepay, including, without
limitation, any loss, cost or expense (excluding loss of anticipated profits)
actually incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender to fund or maintain such Eurodollar Loan.
2.12 Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.10(a)(ii),
2.10(a)(iii), 2.10(b), 3.5 or 5.4 with respect to such Lender, it will, if
requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any Loans
affected by such event, provided that such designation is made on such terms
that such Lender and its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving
rise to the operation of any such Section. Nothing in this Section 2.12 shall
affect or postpone any of the obligations of the Borrower or the right of any
Lender provided in Section 2.10, 3.5 or 5.4.
2.13 Notice of Certain Costs. Notwithstanding anything in this
Agreement to the contrary, to the extent any notice required by Section 2.10,
2.11, 3.5 or 5.4 is given by any Lender more than 180 days after such Lender has
knowledge (or should have had knowledge) of the occurrence of the event giving
rise to the additional cost, reduction in amounts, loss, tax or other additional
amounts described in such Sections, such Lender shall not be entitled to
compensation under Section 2.10, 2.11, 3.5 or 5.4, as the case may be, for any
such amounts incurred or accruing prior to the giving of such notice to the
Borrower.
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SECTION 3. Letters of Credit.
3.1 Letters of Credit. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower, at any time and from time to time on
or after the Closing Date and prior to the L/C Maturity Date, may request that
the Letter of Credit Issuer issue, for the account of the Borrower, a standby
letter of credit or letters of credit in such form as may be approved by the
Letter of Credit Issuer in its reasonable discretion.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued
the Stated Amount of which, when added to the Letter of Credit Outstandings at
such time, would exceed the Letter of Credit Commitment then in effect; (ii) no
Letter of Credit shall be issued the Stated Amount of which, when added to the
sum of (x) the Letter of Credit Outstandings at such time and (y) the aggregate
principal of all Revolving Credit Loans and Swingline Loans then outstanding,
would exceed the Total Revolving Credit Commitment then in effect; (iii) each
Letter of Credit shall have an expiry date occurring no later than one year
after the date of issuance thereof, unless otherwise agreed upon by the
Administrative Agent and the Letter of Credit Issuer, provided that in no event
shall such expiry date occur later than the L/C Maturity Date; (iv) each Letter
of Credit shall be denominated in Dollars; and (v) no Letter of Credit shall be
issued by the Letter of Credit Issuer after it has received a written notice
from the Borrower or any Lender stating that a Default or Event of Default has
occurred and is continuing until such time as the Letter of Credit Issuer shall
have received a written notice of (x) rescission of such notice from the party
or parties originally delivering such notice or (y) the waiver of such Default
or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day's prior written notice (or telephonic
notice promptly confirmed in writing) to the Administrative Agent and the Letter
of Credit Issuer (which notice the Administrative Agent shall promptly transmit
to each of the Lenders), the Borrower shall have the right, on any day,
permanently to terminate or reduce the Letter of Credit Commitment in whole or
in part, provided that, after giving effect to such termination or reduction,
the Letter of Credit Outstandings shall not exceed the Letter of Credit
Commitment.
3.2 Letter of Credit Requests. (a) Whenever the Borrower desires
that a Letter of Credit be issued for its account, it shall give the
Administrative Agent and the Letter of Credit Issuer at least five (or such
lesser number as may be agreed upon by the Administrative Agent and the Letter
of Credit Issuer) Business Days' written notice thereof. Each notice shall be
executed by the Borrower and shall be in the form of Exhibit D (each a "Letter
of Credit Request"). The Administrative Agent shall promptly transmit copies of
each Letter of Credit Request to each Lender.
(b) The making of each Letter of Credit Request shall be deemed to be a
representation and warranty by the Borrower that the Letter of Credit may be
issued in accordance with, and will not violate the requirements of, Section
3.1(b).
3.3 Letter of Credit Participations. (a) Immediately upon the
issuance by the Letter of Credit Issuer of any Letter of Credit, the Letter of
Credit Issuer shall be deemed to have sold and transferred to each other Lender
that has a Revolving Credit Commitment (each such other Lender, in its capacity
under this Section 3.3, an "L/C Participant"), and each such L/C Participant
shall be deemed irrevocably and unconditionally to have purchased and received
from the Letter of Credit Issuer, without recourse or warranty, an undivided
interest and participation (each an "L/C Participation"), to the extent of such
L/C Participant's Revolving Credit Commitment Percentage, in such Letter of
Credit, each substitute letter of credit, each drawing made thereunder and the
obligations of the Borrower under this Agreement with respect thereto, and any
security therefor or guaranty pertaining thereto (although Letter of Credit Fees
39
will be paid directly to the Administrative Agent for the ratable account of the
L/C Participants as provided in Section 4.1(b) and the L/C Participants shall
have no right to receive any portion of any Fronting Fees).
(b) In determining whether to pay under any Letter of Credit, the Letter
of Credit Issuer shall have no obligation relative to the L/C Participants other
than to confirm that any documents required to be delivered under such Letter of
Credit have been delivered and that they appear to comply on their face with the
requirements of such Letter of Credit. Any action taken or omitted to be taken
by the Letter of Credit Issuer under or in connection with any Letter of Credit
issued by it, if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create for the Letter of Credit Issuer any resulting
liability.
(c) In the event that the Letter of Credit Issuer makes any payment under
any Letter of Credit issued by it and the Borrower shall not have repaid such
amount in full to the Letter of Credit Issuer pursuant to Section 3.4(a), the
Letter of Credit Issuer shall promptly notify the Administrative Agent and each
L/C Participant of such failure, and each L/C Participant shall promptly and
unconditionally pay to the Administrative Agent, for the account of the Letter
of Credit Issuer, the amount of such L/C Participant's Revolving Credit
Commitment Percentage of such unreimbursed payment in Dollars and in same day
funds; provided, however, that no L/C Participant shall be obligated to pay to
the Administrative Agent for the account of the Letter of Credit Issuer its
Revolving Credit Commitment Percentage of such unreimbursed amount arising from
any wrongful payment made by the Letter of Credit Issuer under a Letter of
Credit as a result of acts or omissions constituting willful misconduct or gross
negligence on the part of the Letter of Credit Issuer. If the Letter of Credit
Issuer so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any
L/C Participant required to fund a payment under a Letter of Credit, such L/C
Participant shall make available to the Administrative Agent for the account of
the Letter of Credit Issuer such L/C Participant's Revolving Credit Commitment
Percentage of the amount of such payment on such Business Day in same day funds.
If and to the extent such L/C Participant shall not have so made its Revolving
Credit Commitment Percentage of the amount of such payment available to the
Administrative Agent for the account of the Letter of Credit Issuer, such L/C
Participant agrees to pay to the Administrative Agent for the account of the
Letter of Credit Issuer, 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 for the account of the Letter of Credit Issuer at
the Federal Funds Effective Rate. The failure of any L/C Participant to make
available to the Administrative Agent for the account of the Letter of Credit
Issuer its Revolving Credit Commitment Percentage of any payment under any
Letter of Credit shall not relieve any other L/C Participant of its obligation
hereunder to make available to the Administrative Agent for the account of the
Letter of Credit Issuer its Revolving Credit Commitment Percentage of any
payment under such Letter of Credit on the date required, as specified above,
but no L/C Participant shall be responsible for the failure of any other L/C
Participant to make available to the Administrative Agent such other L/C
Participant's Revolving Credit Commitment Percentage of any such payment.
(d) Whenever the Letter of Credit Issuer receives a payment in respect of
an unpaid reimbursement obligation as to which the Administrative Agent has
received for the account of the Letter of Credit Issuer any payments from the
L/C Participants pursuant to paragraph (c) above, the Letter of Credit Issuer
shall pay to the Administrative Agent and the Administrative Agent shall
promptly pay to each L/C Participant that has paid its Revolving Credit
Commitment Percentage of such reimbursement obligation, in Dollars and in same
day funds, an amount equal to such L/C Participant's share (based upon the
proportionate aggregate amount originally funded by such L/C Participant to the
aggregate amount funded by all L/C Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of the
respective L/C Participations.
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(e) The obligations of the L/C Participants to make payments to the
Administrative Agent for the account of the Letter of Credit Issuer with respect
to Letters of Credit shall be irrevocable and not subject to counterclaim,
set-off or other defense or any other qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or any of
the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right that
the Borrower may have at any time against a beneficiary named in a Letter of
Credit, any transferee of any Letter of Credit (or any Person for whom any
such transferee may be acting), the Administrative Agent, the Letter of Credit
Issuer, any Lender or other Person, whether in connection with this Agreement,
any Letter of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the Borrower and
the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any 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) the surrender or impairment of any security for the performance or
observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default;
provided, however, that no L/C Participant shall be obligated to pay to the
Administrative Agent for the account of the Letter of Credit Issuer its
Revolving Credit Commitment Percentage of any unreimbursed amount arising from
any wrongful payment made by the Letter of Credit Issuer under a Letter of
Credit as a result of acts or omissions constituting willful misconduct or gross
negligence on the part of the Letter of Credit Issuer.
3.4 Agreement to Repay Letter of Credit Drawings. (a) The Borrower
hereby agrees to reimburse the Letter of Credit Issuer, by making payment to the
Administrative Agent in Dollars in immediately available funds at the
Administrative Agent's Office, for any payment or disbursement made by the
Letter of Credit Issuer under any Letter of Credit (each such amount so paid
until reimbursed, an "Unpaid Drawing") immediately after, and in any event on
the date of, such payment, with interest on the amount so paid or disbursed by
the Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 P.M.
(New York time) on the date of such payment or disbursement, from and including
the date paid or disbursed to but excluding the date the Letter of Credit Issuer
is reimbursed therefor, at a rate per annum that shall at all times be the
Applicable ABR Margin plus the ABR as in effect from time to time, provided
that, notwithstanding anything contained in this Agreement to the contrary, (i)
unless the Borrower shall have notified the Administrative Agent and the Letter
of Credit Issuer prior to 10:00 A.M. on the date of such drawing that the
Borrower intends to reimburse the Letter of Credit Issuer for the amount of such
drawing with funds other than the proceeds of Loans, the Borrower shall be
deemed to have given a Notice of Borrowing to the Administrative Agent
requesting that the Lenders make Revolving Credit Loans (which shall initially
be ABR Loans) on the date on which such drawing is honored in an amount equal to
the amount of such drawing and (ii) each Lender shall, on such date, make
Revolving Credit Loans in an amount equal to such Lender's pro rata portion of
such Borrowing in accordance with the provisions of Section 2.4.
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(b) The Borrower's obligations under this Section 3.4 to reimburse the
Letter of Credit Issuer with respect to Unpaid Drawings (including, in each
case, interest thereon) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
that the Borrower or any other Person may have or have had against the Letter of
Credit Issuer, the Administrative Agent or any Lender (including in its capacity
as an L/C Participant), including, without limitation, any defense based upon
the failure of any drawing under a Letter of Credit (each a "Drawing") to
conform to the terms of the Letter of Credit or any non-application or
misapplication by the beneficiary of the proceeds of such Drawing, provided that
the Borrower shall not be obligated to reimburse the Letter of Credit Issuer for
any wrongful payment made by the Letter of Credit Issuer under the Letter of
Credit issued by it as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of the Letter of Credit Issuer.
(c) Each payment by the Letter of Credit Issuer under any Letter of Credit
shall constitute a request by the Borrower for an ABR Revolving Credit Loan in
the amount of the Unpaid Drawing in respect of such Letter of Credit. The Letter
of Credit Issuer shall notify the Borrower and the Administrative Agent, by
10:00 A.M. (New York time) on any Business Day on which the Letter of Credit
Issuer intends to honor a drawing under a Letter of Credit, of (i) the Letter of
Credit Issuer's intention to honor such drawing and (ii) the amount of such
drawing. Unless otherwise instructed by the Borrower by 10:30 A.M. (New York
time) on such Business Day, the Administrative Agent shall promptly notify each
Lender of such drawing and the amount of its Revolving Credit Loan to be made in
respect thereof, and each Lender shall be irrevocably obligated to make an ABR
Revolving Credit Loan to the Borrower in the amount of its Revolving Credit
Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York
time) on such Business Day by making the amount of such Revolving Credit Loan
available to the Administrative Agent at the Administrative Agent's Office. Such
Revolving Credit Loans shall be made without regard to the Minimum Borrowing
Amount. The Administrative Agent shall use the proceeds of such Revolving Credit
Loans solely for purpose of reimbursing the Letter of Credit Issuer for the
related Unpaid Drawing.
3.5 Increased Costs. If after the date hereof, the adoption of any
applicable law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or actual compliance by the Letter of Credit Issuer or any L/C
Participant with any request or directive made or adopted after the date hereof
(whether or not having the force of law), by any such authority, central bank or
comparable agency shall either (a) impose, modify or make applicable any
reserve, deposit, capital adequacy or similar requirement against letters of
credit issued by the Letter of Credit Issuer, or any L/C Participant's L/C
Participation therein, or (b) impose on the Letter of Credit Issuer or any L/C
Participant any other conditions affecting its obligations under this Agreement
in respect of Letters of Credit or L/C Participations therein or any Letter of
Credit or such L/C Participant's L/C Participation therein; and the result of
any of the foregoing is to increase the cost to the Letter of Credit Issuer or
such L/C Participant of issuing, maintaining or participating in any Letter of
Credit, or to reduce the amount of any sum received or receivable by the Letter
of Credit Issuer or such L/C Participant hereunder (other than any such increase
or reduction attributable to taxes) in respect of Letters of Credit or L/C
Participations therein, then, promptly after receipt of written demand to the
Borrower by the Letter of Credit Issuer or such L/C Participant, as the case may
be (a copy of which notice shall be sent by the Letter of Credit Issuer or such
L/C Participant to the Administrative Agent), the Borrower shall pay to the
Letter of Credit Issuer or such L/C Participant such additional amount or
amounts as will compensate the Letter of Credit Issuer or such L/C Participant
for such increased cost or reduction, it being understood and agreed, however,
that the Letter of Credit Issuer or a L/C Participant shall not be entitled to
such compensation as a result of such Person's compliance with, or pursuant to
any request or
42
directive to comply with, any such law, rule or regulation as in effect on the
date hereof. A certificate submitted to the Borrower by the Letter of Credit
Issuer or a L/C Participant, as the case may be (a copy of which certificate
shall be sent by the Letter of Credit Issuer or such L/C Participant to the
Administrative Agent), setting forth in reasonable detail the basis for the
determination of such additional amount or amounts necessary to compensate the
Letter of Credit Issuer or such L/C Participant as aforesaid shall be conclusive
and binding on the Borrower absent clearly demonstrable error.
3.6 Successor Letter of Credit Issuer. The Letter of Credit Issuer
may resign as Letter of Credit Issuer upon 60 days' prior written notice to the
Administrative Agent, the Lenders and the Borrower. If the Letter of Credit
Issuer shall resign as Letter of Credit Issuer under this Agreement, then the
Borrower shall appoint from among the Lenders with Revolving Credit Commitments
a successor issuer of Letters of Credit, whereupon such successor issuer shall
succeed to the rights, powers and duties of the Letter of Credit Issuer, and the
term "Letter of Credit Issuer" shall mean such successor issuer effective upon
such appointment. At the time such resignation shall become effective, the
Borrower shall pay to the resigning Letter of Credit Issuer all accrued and
unpaid fees pursuant to Sections 4.1(c) and (d). The acceptance of any
appointment as the Letter of Credit Issuer hereunder by a successor Lender shall
be evidenced by an agreement entered into by such successor, in a form
satisfactory to the Borrower and the Administrative Agent and, from and after
the effective date of such agreement, such successor Lender shall have all the
rights and obligations of the previous Letter of Credit Issuer under this
Agreement and the other Credit Documents. After the resignation of the Letter of
Credit Issuer hereunder, the resigning Letter of Credit Issuer shall remain a
party hereto and shall continue to have all the rights and obligations of a
Letter of Credit Issuer under this Agreement and the other Loan Documents with
respect to Letters of Credit issued by it prior to such resignation, but shall
not be required to issue additional Letters of Credit. After any retiring Letter
of Credit Issuer's resignation as Letter of Credit Issuer, the provisions of
this Agreement relating to the Letter of Credit Issuer shall inure to its
benefit as to any actions taken or omitted to be taken by it (a) while it was
Letter of Credit Issuer under this Agreement or (b) at any time with respect to
Letters of Credit issued by such Letter of Credit Issuer.
SECTION 4. Fees; Commitments.
4.1 Fees. (a) The Borrower agrees to pay to the Administrative
Agent, for the account of each Lender having a Term Loan Commitment or a
Revolving Credit Commitment (in each case pro rata according to the respective
Commitments of all such Lenders), a commitment fee for each day (i) in the case
of the Term Loan Commitments, from and including the Closing Date to but
excluding the last day of the Term Loan Availability Period and (ii) in the case
of the Revolving Credit Commitments, from and including the Closing Date to but
excluding the Final Date. Such commitment fee shall be payable (i) in the case
of the Term Loan Commitments, in arrears (x) on September 30, 1997 (for the
period ended on such day), and (y) on the last day of the Term Loan Availability
Period (for the period ended on such day for which no payment has been received
pursuant to clause (i)(x) above) and (ii) in the case of the Revolving Credit
Commitments, in arrears (x) September 30, 1997 (for the period ended on such
day), (y) on the last day of each March, June, September and December (for the
three-month period (or portion thereof) ended on the such day for which no
payment has been received pursuant to clause (ii)(x) above) and (z) on the Final
Date (for the period ended on such date for which no payment has been received
pursuant to clause (ii)(y) above), and shall be computed for each day during
such period at a rate per annum equal to the Commitment Fee Rate in effect on
such day on the Available Commitments in effect on such day. Notwithstanding the
foregoing, the Borrower shall not be obligated to pay any amounts to any
Defaulting Lender pursuant to this Section 4.1.
43
(b) The Borrower agrees to pay to the Administrative Agent for the account
of the Lenders pro rata on the basis of their respective Letter of Credit
Exposure, a fee in respect of each Letter of Credit (the "Letter of Credit
Fee"), for the period from and including the date of issuance of such Letter of
Credit to but not including the termination date of such Letter of Credit
computed at the per annum rate for each day equal to the Applicable Eurodollar
Margin for Revolving Credit Loans minus 0.125% per annum on the average daily
Stated Amount of such Letter of Credit. Such Letter of Credit Fees shall be due
and payable quarterly in arrears on the last day of each March, June, September
and December and on the date upon which the Total Revolving Credit Commitment
terminates and the Letter of Credit Outstandings shall have been reduced to
zero.
(c) The Borrower agrees to pay to the Administrative Agent for the account
of the Letter of Credit Issuer a fee in respect of each Letter of Credit issued
by it (the "Fronting Fee"), for the period from and including the date of
issuance of such Letter of Credit to but not including the termination date of
such Letter of Credit, computed at the rate for each day equal to 0.125% per
annum on the average daily Stated Amount of such Letter of Credit. Such Fronting
Fees shall be due and payable quarterly in arrears on the last day of each
March, June, September and December and on the date upon which the Total
Revolving Credit Commitment terminates and the Letter of Credit Outstandings
shall have been reduced to zero.
(d) The Borrower agrees to pay directly to the Letter of Credit Issuer
upon each issuance of, drawing under, and/or amendment of, a Letter of Credit
issued by it such amount as the Letter of Credit Issuer and the Borrower shall
have agreed upon for issuances of, drawings under or amendments of, letters of
credit issued by it.
(e) The Borrower agrees to pay to the Administrative Agent, on the Closing
Date, the fees in the amounts and on the dates previously agreed to in writing
by the Borrower and the Administrative Agent. The Administrative Agent agrees to
pay to each Lender, for its own account on the Closing Date, the fees in the
amounts and on the dates previously agreed to in writing by the Administrative
Agent and such Lender.
4.2 Voluntary Reduction of Revolving Credit Commitments. Upon at
least one Business Day's prior written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent at the Administrative Agent's
Office (which notice the Administrative Agent shall promptly transmit to each of
the Lenders), the Borrower shall have the right, without premium or penalty, on
any day, permanently to terminate or reduce the Revolving Credit Commitments in
whole or in part, provided that (a) any such reduction shall apply
proportionately and permanently to reduce the Revolving Credit Commitment of
each of the Lenders, (b) any partial reduction pursuant to this Section 4.2
shall be in the amount of at least $1,000,000 and (c) after giving effect to
such termination or reduction and to any prepayments of the Loans made on the
date thereof in accordance with this Agreement, the sum of (i) the aggregate
outstanding principal amount of the Revolving Credit Loans and the Swingline
Loans and (ii) the Letter of Credit Outstandings shall not exceed the Total
Revolving Credit Commitment.
44
4.3 Mandatory Termination of Commitments. (a) The Total Term Loan
Commitment shall be reduced at 5:00 P.M. (New York time) on the Closing Date by
an amount equal to the greater of (i) the aggregate principal amount of Term
Loans borrowed on the Closing Date and (ii) $110,000,000. The Total Term Loan
Commitment shall terminate upon the earlier of (i) any borrowing of Term Loans
following the Closing Date and (ii) at 5:00 P.M. (New York time) on the last day
of the Term Loan Availability Period.
(b) The Total Revolving Credit Commitment shall terminate at 5:00 P.M.
(New York time) on the Revolving Credit Maturity Date.
(c) The Swingline Commitment shall terminate at 5:00 P.M. (New York time)
on the Swingline Maturity Date.
SECTION 5. Payments.
5.1 Voluntary Prepayments. The Borrower shall have the right to
prepay Term Loans, Revolving Credit Loans and Swingline Loans, without premium
or penalty, in whole or in part from time to time on the following terms and
conditions: (a) the Borrower shall give the Administrative Agent at the
Administrative Agent's Office written notice (or telephonic notice promptly
confirmed in writing) of its intent to make such prepayment, the amount of such
prepayment and (in the case of Eurodollar Term Loans and Eurodollar Revolving
Credit Loans) the specific Borrowing(s) pursuant to which made, which notice
shall be given by the Borrower no later than (i) in the case of Term Loans or
Revolving Credit Loans, 10:00 A.M. (New York time) one Business Day prior to, or
(ii) in the case of Swingline Loans, 10:00 A.M. (New York time) on, the date of
such prepayment and shall promptly be transmitted by the Administrative Agent to
each of the Lenders or Chase, as the case may be; (b) each partial prepayment of
any Borrowing of Term Loans or Revolving Credit Loans shall be in a multiple of
$100,000 and in an aggregate principal amount of at least $1,000,000 and each
partial prepayment of Swingline Loans shall be in a multiple of $100,000 and in
an aggregate principal amount of at least $100,000, provided that no partial
prepayment of Eurodollar Term Loans or Eurodollar Revolving Credit Loans made
pursuant to a single Borrowing shall reduce the outstanding Eurodollar Term
Loans or Eurodollar Revolving Credit Loans made pursuant to such Borrowing to an
amount less than the Minimum Borrowing Amount for Eurodollar Term Loans or
Eurodollar Revolving Credit Loans; and (c) any prepayment of Eurodollar Term
Loans or Eurodollar Revolving Credit Loans pursuant to this Section 5.1 on any
day other than the last day of an Interest Period applicable thereto shall be
subject to compliance by the Borrower with the applicable provisions of Section
2.11. Each prepayment of Term Loans pursuant to this Section 5.1 shall be
applied to reduce the Repayment Amounts in such order as the Borrower may
determine. At the Borrower's election in connection with any prepayment pursuant
to this Section 5.1, such prepayment shall not be applied to any Term Loan or
Revolving Credit Loan of a Defaulting Lender.
5.2 Mandatory Prepayments. (a) Term Loan Prepayments. (i) On each
occasion that a Prepayment Event occurs, the Borrower shall, within five
Business Days after the occurrence of such Prepayment Event, offer to prepay, in
accordance with paragraph (c) below, the principal amount of Term Loans in an
amount equal to 100% of the Net Cash Proceeds from such Prepayment Event;
provided, however, that the Borrower may elect to not so apply to the prepayment
of Term Loans up to $30,000,000 of Net Cash Proceeds from any (x) Permitted Sale
Leaseback with respect to one or more Closing Date Stores or (y) Debt Incurrence
Prepayment Event in the aggregate during the term of this Agreement.
45
(ii) Not later than the date that is six months after the last day of any
fiscal year (commencing with the fiscal year ending June 27, 1998), the Borrower
shall offer to prepay, in accordance with paragraph (c) below, the principal of
Term Loans in an amount equal to (x) 50% of Excess Cash Flow for such fiscal
year (or, in the case of the fiscal year ending June 27, 1998, for the period
from and including the Closing Date to and including June 27, 1998), minus (y)
the amount of any such Excess Cash Flow that the Borrower has, prior to such
date, reinvested in the business of the Borrower or any of its Subsidiaries
(subject to Section 9.14).
(b) Aggregate Revolving Credit Outstandings. If on any date the sum of the
outstanding principal amount of the Revolving Credit Loans and Swingline Loans
and the aggregate amount of Letter of Credit Outstandings (all the foregoing,
collectively, the "Aggregate Revolving Credit Outstandings") exceeds the Total
Revolving Credit Commitment as then in effect, the Borrower shall forthwith
repay on such date the principal amount of Swingline Loans and, after all
Swingline Loans have been paid in full, Revolving Credit Loans, in an amount
equal to such excess. If, after giving effect to the prepayment of all
outstanding Swingline Loans and Revolving Credit Loans, the Aggregate Revolving
Credit Outstandings exceed the Total Revolving Credit Commitment then in effect,
the Borrower shall pay to the Administrative Agent an amount in cash equal to
such excess and the Administrative Agent shall hold such payment for the benefit
of the Lenders as security for the obligations of the Borrower hereunder
(including, without limitation, obligations in respect of Letter of Credit
Outstandings) pursuant to a cash collateral agreement to be entered into in form
and substance satisfactory to the Administrative Agent (which shall permit
certain investments in Permitted Investments satisfactory to the Administrative
Agent, until the proceeds are applied to the secured obligations).
(c) Application to Repayment Amounts. Each prepayment of Term Loans
required by Section 5.2(a) shall be applied to reduce the Repayment Amounts in
such order as the Borrower may determine. With respect to each such prepayment,
(i) the Borrower will, not later than the date specified in Section 5.2(a) for
offering to make such prepayment, give the Administrative Agent telephonic
notice (promptly confirmed in writing) requesting that the Administrative Agent
provide notice of such prepayment to each Term Loan Lender, (ii) each Term Loan
Lender will have the right to refuse any such prepayment by giving written
notice of such refusal to the Borrower within fifteen Business Days after such
Lender's receipt of notice from the Administrative Agent of such prepayment (and
the Borrower shall not prepay any such Term Loans until the date that is
specified in the immediately following clause), (iii) the Borrower will make all
such prepayments not so refused upon the earlier of (x) such fifteenth Business
Day and (y) such time as the Borrower has received notice from each Lender that
it consents to or refuses such prepayment and (iv) any prepayment so refused may
be retained by the Borrower.
(d) Application to Term Loans. With respect to each prepayment of Term
Loans required by Section 5.2(a), the Borrower may designate the Types of Loans
that are to be prepaid and the specific Borrowing(s) pursuant to which made,
provided that (i) Eurodollar Term Loans may be designated for prepayment
pursuant to this Section 5.2 only on the last day of an Interest Period
applicable thereto unless all Eurodollar Term Loans with Interest Periods ending
on such date of required prepayment and all ABR Term Loans have been paid in
full; and (ii) if any prepayment of Eurodollar Term Loans made pursuant to a
single Borrowing shall reduce the outstanding Term Loans made pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount for Eurodollar
Term Loans, such Borrowing shall immediately be converted into ABR Loans. In the
absence of a designation by the Borrower as described in the preceding sentence,
the Administrative Agent shall, subject to the above, make such designation in
its reasonable discretion with a view, but no obligation, to minimize breakage
costs owing under Section 2.11.
46
(e) Application to Revolving Credit Loans. With respect to each prepayment
of Revolving Credit Loans required by Section 5.2(b), the Borrower may designate
the Types of Loans that are to be prepaid and the specific Borrowing(s) pursuant
to which made, provided that (i) Eurodollar Revolving Credit Loans may be
designated for prepayment pursuant to this Section 5.2 only on the last day of
an Interest Period applicable thereto unless all Eurodollar Revolving Credit
Loans with Interest Periods ending on such date of required prepayment and all
ABR Loans have been paid in full; (ii) if any prepayment of Eurodollar Revolving
Credit Loans made pursuant to a single Borrowing shall reduce the outstanding
Revolving Credit Loans made pursuant to such Borrowing to an amount less than
the Minimum Borrowing Amount for Eurodollar Revolving Credit Loans, such
Borrowing shall immediately be converted into ABR Loans; (iii) each prepayment
of any Loans made pursuant to a Borrowing shall be applied pro rata among such
Loans; and (iv) notwithstanding the provisions of the preceding clause (iii), no
prepayment made pursuant to Section 5.2(b) of Revolving Credit Loans shall be
applied to the Revolving Credit Loans of any Defaulting Lender. In the absence
of a designation by the Borrower as described in the preceding sentence, the
Administrative Agent shall, subject to the above, make such designation in its
reasonable discretion with a view, but no obligation, to minimize breakage costs
owing under Section 2.11.
(f) Eurodollar Interest Periods. In lieu of making any payment pursuant to
this Section 5.2 in respect of any Eurodollar Loan other than on the last day of
the Interest Period therefor, so long as no Default or Event of Default shall
have occurred and be continuing, the Borrower at its option may deposit with the
Administrative Agent an amount equal to the amount of the Eurodollar Loan to be
prepaid and such Eurodollar Loan shall be repaid on the last day of the Interest
Period therefor in the required amount. Such deposit shall be held by the
Administrative Agent in a corporate time deposit account established on terms
reasonably satisfactory to the Administrative Agent, earning interest at the
then-customary rate for accounts of such type. Such deposit shall constitute
cash collateral for the Obligations, provided that the Borrower may at any time
direct that such deposit be applied to make the applicable payment required
pursuant to this Section 5.2.
(g) Minimum Amount. No prepayment shall be required pursuant to Section
5.2(a)(i) unless and until the amount at any time of Net Cash Proceeds from
Prepayment Events required to be applied at or prior to such time pursuant to
such Section and not yet applied at or prior to such time to prepay Term Loans
pursuant to such Section exceeds $15,000,000 in the aggregate.
(h) Foreign Asset Sales. Notwithstanding any other provisions of this
Section 5.2, (i) to the extent that any of or all the Net Cash Proceeds of any
asset sale by a Restricted Foreign Subsidiary giving rise to an Asset Sale
Prepayment Event (a "Foreign Asset Sale") are prohibited or delayed by
applicable local law from being repatriated to the United States, the portion of
such Net Cash Proceeds so affected will not be required to be applied to repay
Term Loans at the times provided in this Section 5.2 but may be retained by the
applicable Restricted Foreign Subsidiary so long, but only so long, as the
applicable local law will not permit repatriation to the United States (the
Borrower hereby agreeing to cause the applicable Restricted Foreign Subsidiary
to promptly take all actions required by the applicable local law to permit such
repatriation), and once such repatriation of any of such affected Net Cash
Proceeds is permitted under the applicable local law, such repatriation will be
immediately effected and such repatriated Net Cash Proceeds will be promptly
(and in any event not later than two Business Days after such repatriation)
applied to the repayment of the Term Loans pursuant to this Section 5.2 and (ii)
to the extent that the Borrower has determined in good faith that repatriation
of any of or all the Net Cash Proceeds of any Foreign Asset Sale would have a
material adverse tax cost consequence with respect to such Net Cash Proceeds,
the Net Cash Proceeds so affected may be retained by the applicable Restricted
Foreign Subsidiary, provided that, in the case of this clause (ii), on or before
the date on which any Net Cash Proceeds so retained would
47
otherwise have been required to be applied to reinvestments or prepayments
pursuant to Section 5.2(a), (x) the Borrower applies an amount equal to such Net
Cash Proceeds to such reinvestments or prepayments as if such Net Cash Proceeds
had been received by the Borrower rather than such Restricted Foreign Subsidiary
or (y) such Net Cash Proceeds are applied to the repayment of Indebtedness of a
Restricted Foreign Subsidiary.
5.3 Method and Place of Payment. (a) Except as otherwise
specifically provided herein, all payments under this Agreement shall be made,
without set-off, counterclaim or deduction of any kind, to the Administrative
Agent for the ratable account of the Lenders entitled thereto, the Letter of
Credit Issuer or Chase, as the case may be, not later than 12:00 Noon (New York
time) on the date when due and shall be made in immediately available funds and
in lawful money of the United States of America at the Administrative Agent's
Office, it being understood that written or facsimile notice by the Borrower to
the Administrative Agent to make a payment from the funds in the Borrower's
account at the Administrative Agent's Office shall constitute the making of such
payment to the extent of such funds held in such account. The Administrative
Agent will thereafter cause to be distributed on the same day (if payment was
actually received by the Administrative Agent prior to 2:00 P.M. (New York time)
on such day) like funds relating to the payment of principal or interest or Fees
ratably to the Lenders entitled thereto.
(b) Any payments under this Agreement that are made later than 2:00 P.M.
(New York time) shall be deemed to have been made on the next succeeding
Business Day. Whenever any payment to be made hereunder shall be stated to be
due on a day that is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in effect
immediately prior to such extension.
5.4 Net Payments. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any current or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu
of net income taxes) imposed on the Administrative Agent or any Lender and (ii)
any taxes imposed on the Administrative Agent or any Lender as a result of a
current or former connection between the Administrative Agent or such Lender and
the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement). If any such non-excluded taxes, levies,
imposts, duties, charges, fees, deductions or withholdings ("Non-Excluded
Taxes") are required to be withheld from any amounts payable to the
Administrative Agent or any Lender hereunder, the amounts so payable to the
Administrative Agent or such Lender shall be increased to the extent necessary
to yield to the Administrative Agent or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in this Agreement; provided, however, that the
Borrower shall not be required to increase any such amounts payable to any
Lender that is not organized under the laws of the United States of America or a
state thereof if such Lender fails to comply with the requirements of paragraph
(b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the
Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for its own account or for the account of such Lender, as
the case may be, a certified copy of an original official receipt received by
the Borrower showing payment thereof. If the Borrower fails to pay any
Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the
48
Borrower shall indemnify the Administrative Agent and the Lenders for any
incremental taxes, interest, costs or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure. The
agreements in this Section 5.4(a) shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated or organized under the laws of
the United States of America or a state thereof shall:
(i) deliver to the Borrower and the Administrative Agent two copies of
either United States Internal Revenue Service Form 1001 or Form 4224 or, in
the case of Non-U.S. Lender claiming exemption from 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 Non-U.S. Lender delivers a Form W-8, a
certificate representing that such Non-U.S. 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 Borrower and is not a
controlled foreign corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Code)), properly completed and duly executed by such
Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S.
Federal withholding tax on payments by the Borrower under this Agreement;
(ii) deliver to the Borrower and the Administrative Agent two further
copies of any such form or certification on or before the date that any such
form or certification expires or becomes obsolete and after the occurrence of
any event requiring a change in the most recent form previously delivered by
it to the Borrower; and
(iii) obtain such extensions of time for filing and complete such forms
or certifications as may reasonably be requested by the Borrower or the
Administrative Agent;
unless in any such case any change in treaty, law or regulation has occurred
prior to the date on which any such delivery would otherwise be required that
renders any such form inapplicable or would prevent such Lender from duly
completing and delivering any such form with respect to it and such Lender so
advises the Borrower and the Administrative Agent. Each Person that shall become
a Participant pursuant to Section 13.6 or a Lender pursuant to Section 13.6
shall, upon the effectiveness of the related transfer, be required to provide
all the forms and statements required pursuant to this Section 5.4(b), provided
that in the case of a Participant such Participant shall furnish all such
required forms and statements to the Lender from which the related participation
shall have been purchased.
(c) The Borrower shall not be required to indemnify any Non-U.S. Lender,
or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S.
Federal withholding tax pursuant to paragraph (a) above to the extent that (i)
the obligation to withhold amounts with respect to U.S. Federal withholding tax
existed on the date such Non-U.S. Lender became a party to this Agreement (or,
in the case of a Non-U.S. Participant, on the date such Participant became a
Participant hereunder); provided, however, that this clause (i) shall not apply
to the extent that (x) the indemnity payments or additional amounts any Lender
(or Participant) would be entitled to receive (without regard to this clause
(i)) do not exceed the indemnity payment or additional amounts that the person
making the assignment, participation or transfer to such Lender (or Participant)
would have been entitled to receive in the absence of such assignment,
participation or transfer, or (y) such assignment, participation or transfer had
been requested by the Borrower, (ii) the obligation to pay such additional
amounts would not have arisen but for a failure by such Non-U.S. Lender or
Non-U.S.
49
Participant to comply with the provisions of paragraph (b) above or (iii) any of
the representations or certifications made by a Non-U.S. Lender or Non-U.S.
Participant pursuant to paragraph (b) above are incorrect at the time a payment
hereunder is made, other than by reason of any change in treaty, law or
regulation having effect after the date such representations or certifications
were made.
(d) If the Borrower determines in good faith that a reasonable basis
exists for contesting any taxes for which indemnification has been demanded
hereunder, the relevant Lender or the Administrative Agent, as applicable, shall
cooperate with the Borrower in challenging such taxes at the Borrower's expense
if so requested by the Borrower. If any Lender or the Administrative Agent, as
applicable, receives a refund of a tax for which a payment has been made by the
Borrower pursuant to this Agreement, which refund in the good faith judgment of
such Lender or Administrative Agent, as the case may be, is attributable to such
payment made by the Borrower, then the Lender or the Administrative Agent, as
the case may be, shall reimburse the Borrower for such amount as the Lender or
Administrative Agent, as the case may be, determines to be the proportion of the
refund as will leave it, after such reimbursement, in no better or worse
position than it would have been in if the payment had not been required. A
Lender or Administrative Agent shall claim any refund that it determines is
available to it, unless it concludes in its reasonable discretion that it would
be adversely affected by making such a claim. Neither the Lender nor the
Administrative Agent shall be obliged to disclose any information regarding its
tax affairs or computations to the Borrower in connection with this paragraph
(d) or any other provision of this Section 5.4.
(e) Each Lender represents and agrees that, on the date hereof and at all
times during the term of this Agreement, it is not and will not be a conduit
entity participating in a conduit financing arrangement (as defined in Section
7701(1) of the Code and the regulations thereunder) with respect to the
Borrowings hereunder unless the Borrower has consented to such arrangement prior
thereto.
5.5 Computations of Interest and Fees. (a) Interest on Eurodollar
Loans and, except as provided in the next succeeding sentence, ABR Loans shall
be calculated on the basis of a 360-day year for the actual days elapsed.
Interest on ABR Loans in respect of which the rate of interest is calculated on
the basis of the Prime Rate and interest on overdue interest shall be calculated
on the basis of a 365- (or 366-, as the case may be) day year for the actual
days elapsed.
(b) Fees and Letter of Credit Outstandings shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed.
SECTION 6. Conditions Precedent to Initial Borrowing.
The initial Borrowing under this Agreement is subject to the satisfaction
of the following conditions precedent:
6.1 Credit Documents. The Administrative Agent shall have received
(a) this Agreement, executed and delivered by a duly authorized officer of the
Borrower and each Lender, (b) the Guarantee, executed and delivered by a duly
authorized officer of each Guarantor, (c) the Pledge Agreement, executed and
delivered by each pledgor party thereto and (d) all certificates representing
securities pledged under the Pledge Agreement, accompanied by instruments of
transfer and undated stock powers endorsed in blank.
6.2 Closing Certificate. The Administrative Agent shall have
received a certificate of each Credit Party, dated the Closing Date,
substantially in the form of Exhibit G, with appropriate insertions, executed by
the President or any Vice President and the Secretary or
50
any Assistant Secretary of such Credit Party, and attaching the documents
referred to in Sections 6.3 and 6.4.
6.3 Corporate Proceedings of Each Credit Party. The Administrative
Agent shall have received a copy of the resolutions, in form and substance
satisfactory to the Administrative Agent, of the Board of Directors of each
Credit Party (or a duly authorized committee thereof) authorizing (a) the
execution, delivery and performance of the Credit Documents and the Subscription
Agreement (and any agreements relating thereto) to which it is a party and (b)
in the case of the Borrower, the extensions of credit contemplated hereunder.
6.4 Corporate Documents. The Administrative Agent shall have
received true and complete copies of the certificate of incorporation and
by-laws of each Credit Party.
6.5 No Material Adverse Change. There shall have been no material
adverse change in the business, assets, operations, properties, financial
condition or prospects of the Borrower and its Subsidiaries taken as a whole
since June 29, 1996.
6.6 Fees. The Administrative Agent shall have received the fees
referred to in Section 4.1(e) to be received on the Closing Date.
6.7 Equity Contribution and Redemption. (a) The Equity Contribution
and (b) the Redemption shall have been made or shall be made simultaneously with
the making of the initial Loans.
6.8 Recapitalization. (a) The Recapitalization shall have been
consummated, or shall be consummated simultaneously with the making of the
initial Loans, in accordance with applicable law and the Subscription Agreement
and (b) RFM and other Affiliates of KKR shall have received shares representing
approximately [62]% of the shares of Borrower Common Stock expected to be
outstanding immediately after the Recapitalization. The Subscription Agreement
shall not have been amended since April 1, 1997, in any material respect that
is, in the reasonable judgment of the Administrative Agent, adverse to the
interests of the Lenders.
6.9 Other Indebtedness. After giving effect to the Recapitalization
and the other transactions contemplated hereby, the Borrower and its
Subsidiaries shall have outstanding no Indebtedness or preferred stock other
than (a) the extensions of credit under this Agreement, (b) the Subordinated
Notes and (c) Indebtedness permitted under Section 10.1, other than under
clauses (j), (k) and (n) thereof.
6.10 Closing Date Balance Sheet. The Lenders shall have received a
pro forma consolidated closing balance sheet of the Borrower giving effect to
the Recapitalization, the financing therefor and the other transactions
contemplated hereby and thereby, dated the date of the corresponding pro forma
balance sheet included in the offering memorandum for the Subordinated Notes.
6.11 Solvency Certificate. The Lenders shall have received a
certificate from the Treasurer of the Borrower or other executive officer of the
Borrower with the responsibility for financial matters, in form and substance
reasonably satisfactory to the Administrative Agent, as to the solvency of the
Borrower and its Subsidiaries on a consolidated basis after giving effect to the
Recapitalization, the making of the initial Loans and the consummation of the
other transactions contemplated hereby.
6.12 Required Approvals. All requisite material Governmental
Authorities and third parties shall have approved or consented to the
Recapitalization and the other transactions
51
contemplated hereby to the extent required, all applicable appeal periods shall
have expired and there shall be no governmental or judicial action, actual or
threatened, that has or could have a reasonable likelihood of restraining,
preventing or imposing materially burdensome conditions on the Recapitalization,
the financing therefor or the other transactions contemplated hereby or thereby.
6.13 Existing Credit Agreement. All loans outstanding under, and all
other amounts due in respect of, the Existing Credit Agreement shall have been
repaid in full; the commitments under the Existing Credit Agreement shall have
been permanently terminated; all obligations under the Existing Credit Agreement
and security interests relating thereto shall have been discharged; and the
Administrative Agent shall have received reasonably satisfactory evidence of
such repayment, termination and discharge.
6.14 Senior Notes and Preferred Stock. Prior to or substantially
concurrently with the making of the initial Loans, (a) all the Senior Notes
shall have been repaid and the Make-Whole Premium shall have been paid and (b)
all the outstanding Preferred Stock shall have been redeemed.
6.15 Legal Opinions. The Administrative Agent shall have received,
with a counterpart for each Lender, the executed legal opinions of (a) Xxxxxxx
Xxxxxxx & Xxxxxxxx, special New York counsel to the Borrower, substantially in
the form of Exhibit E-1, (b) Xxxxxx & Xxxxxx, counsel to the Borrower,
substantially in the form of Exhibit E-2, and the Borrower hereby instructs such
counsel to deliver such legal opinions.
6.16 Subordinated Notes. The Borrower shall have received gross
proceeds of not less than approximately $149,750,000 from the sale at par of the
Subordinated Notes.
SECTION 7. Conditions Precedent to All Credit Events. The agreement
of each Lender to make any Loan requested to be made by it on any date
(including, without limitation, its initial Loan, but excluding Mandatory
Borrowings) and the obligation of the Letter of Credit Issuer to issue Letters
of Credit on any date is subject to the satisfaction of the following conditions
precedent:
7.1 No Default; Representations and Warranties. At the time of each
Credit Event and also after giving effect thereto (a) there shall exist no
Default or Event of Default and (b) all representations and warranties made by
any Credit Party contained herein or in the other Credit Documents shall be true
and correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such
Credit Event (except where such representations and warranties expressly relate
to an earlier date, in which case such representations and warranties shall have
been true and correct in all material respects as of such earlier date).
7.2 Notice of Borrowing; Letter of Credit Request. (a) Prior to the
making of each Term Loan, each Revolving Credit Loan (other than any Revolving
Credit Loan made pursuant to Section 3.4(a)) and each Swingline Loan, the
Administrative Agent shall have received a Notice of Borrowing (whether in
writing or by telephone) meeting the requirements of Section 2.3.
(b) Prior to the issuance of each Letter of Credit, the Administrative
Agent and the Letter of Credit Issuer shall have received a Letter of Credit
Request meeting the requirements of Section 3.2(a).
52
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by each Credit Party to each of the Lenders that all
the applicable conditions specified above exist as of that time.
SECTION 8. Representations, Warranties and Agreements. In order to induce
the Lenders to enter into this Agreement, to make the Loans and issue or
participate in Letters of Credit as provided for herein, the Borrower makes the
following representations and warranties to, and agreements with, the Lenders,
all of which shall survive the execution and delivery of this Agreement and the
making of the Loans and the issuance of the Letters of Credit:
8.1 Corporate Status. The Borrower and each Material Subsidiary (a)
is a duly organized and validly existing corporation or other entity in good
standing under the laws of the jurisdiction of its organization and has the
corporate or other organizational power and authority to own its property and
assets and to transact the business in which it is engaged and (b) has duly
qualified and is authorized to do business and is in good standing in all
jurisdictions where it is required to be so qualified, except where the failure
to be so qualified could not reasonably be expected to result in a Material
Adverse Effect.
8.2 Corporate Power and Authority. Each Credit Party has the
corporate power and authority to execute, deliver and carry out the terms and
provisions of the Credit Documents to which it is a party and has taken all
necessary corporate action to authorize the execution, delivery and performance
of the Credit Documents to which it is a party. Each Credit Party has duly
executed and delivered each Credit Document to which it is a party and each such
Credit Document constitutes the legal, valid and binding obligation of such
Credit Party enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and subject to general principles of
equity.
8.3 No Violation. Neither the execution, delivery and performance by
any Credit Party of the Credit Documents to which it is a party nor compliance
with the terms and provisions thereof nor the consummation of the
Recapitalization and the other transactions contemplated therein will (a)
contravene any applicable provision of any material law, statute, rule,
regulation, order, writ, injunction or decree of any court or governmental
instrumentality, (b) result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or impose) any Lien upon
any of the property or assets of the Borrower or any of the Restricted
Subsidiaries pursuant to, the terms of any material indenture (including the
Senior Note Indenture), loan agreement, lease agreement, mortgage, deed of
trust, agreement or other material instrument to which the Borrower or any of
the Restricted Subsidiaries is a party or by which it or any of its property or
assets is bound or (c) violate any provision of the certificate of incorporation
or By-Laws of the Borrower or any of the Restricted Subsidiaries.
8.4 Litigation. Except as set forth in the Borrower's audited
financial statements for the fiscal year ended June 29, 1996, there are no
actions, suits or proceedings (including, without limitation, Environmental
Claims) pending or, to the knowledge of the Borrower, threatened with respect to
the Borrower or any of its Subsidiaries that could reasonably be expected to
result in a Material Adverse Effect.
8.5 Margin Regulations. Neither the making of any Loan hereunder nor
the use of the proceeds thereof will violate the provisions of Regulation G, T,
U or X of the Board.
8.6 Governmental Approvals. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any
53
Governmental Authority is required to authorize or is required in connection
with (a) the execution, delivery and performance of any Credit Document or (b)
the legality, validity, binding effect or enforceability of any Credit Document,
except any of the foregoing the failure to obtain or make could not reasonably
be expected to have a Material Adverse Effect.
8.7 Investment Company Act. The Borrower is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
8.8 True and Complete Disclosure. (a) All factual information and
data (taken as a whole) heretofore or contemporaneously furnished by the
Borrower, any of its Subsidiaries or any of their respective authorized
representatives in writing to the Administrative Agent and/or any Lender on or
before the Closing Date (including, without limitation, (i) the Confidential
Information Memorandum and (ii) all information contained in the Credit
Documents) for purposes of or in connection with this Agreement or any
transaction contemplated herein was true and complete in all material respects
on the date as of which such information or data is dated or certified and was
not incomplete by omitting to state any material fact necessary to make such
information and data (taken as a whole) not misleading at such time in light of
the circumstances under which such information or data was furnished, it being
understood and agreed that for purposes of this Section 8.8(a), such factual
information and data shall not include projections and pro forma financial
information.
(b) The projections and pro forma financial information contained in the
information and data referred to in paragraph (a) above were based on good faith
estimates and assumptions believed by such Persons to be reasonable at the time
made, it being recognized by the Lenders that such projections as to future
events are not to be viewed as facts and that actual results during the period
or periods covered by any such projections may differ from the projected
results.
8.9 Financial Condition; Financial Statements. (a) The consolidated
balance sheet of the Borrower and its Subsidiaries at June 29, 1996, and the
related consolidated statements of operations, redeemable stock and
stockholders' equity and cash flows for the fiscal year ended as of such date,
which statements have been audited by Xxxxxx Xxxxxxxx LLP, independent certified
public accountants, who delivered an unqualified opinion with respect thereto,
and (b) the unaudited consolidated balance sheet of the Borrower and its
Subsidiaries at April 5, 1997, and the related consolidated statements of
operations, redeemable stock and stockholders' equity and cash flows for the
respective fiscal quarters and portions of the fiscal year ended as of such
dates, in each case present fairly in all material respects the consolidated
financial position of the Borrower and its Subsidiaries at the respective dates
of said statements and the results of operations for the respective periods
covered thereby. All such financial statements have been prepared in accordance
with GAAP consistently applied except to the extent provided in the notes to
said financial statements and, in the case of said financial statements referred
to in clause (b), subject to normal year-end audit adjustments. There has been
no Material Adverse Change since June 29, 1996, other than solely as a result of
changes in general economic conditions.
8.10 Tax Returns and Payments. Each of the Borrower and its
Subsidiaries has filed all federal income tax returns and all other material tax
returns, domestic and foreign, required to be filed by it and has paid all
material taxes and assessments payable by it that have become due, other than
those not yet delinquent or contested in good faith. The Borrower and each of
its Subsidiaries have paid, or have provided adequate reserves (in the good
faith judgment of the management of the Borrower) in accordance with GAAP for
the payment of, all material federal, state and foreign income taxes applicable
for all prior fiscal years and for the current fiscal year to the Closing Date.
54
8.11 Compliance with ERISA. Each Plan is in compliance with ERISA,
the Code and any applicable Requirement of Law; no Reportable Event has occurred
(or is reasonably likely to occur) with respect to any Plan; no Plan is
insolvent or in reorganization (or is reasonably likely to be insolvent or in
reorganization), and no written notice of any such insolvency or reorganization
has been given to the Borrower, any Subsidiary or any ERISA Affiliate; no Plan
(other than a multiemployer plan) has an accumulated or waived funding
deficiency (or is reasonably likely to have such a deficiency); neither the
Borrower nor any Subsidiary nor any ERISA Affiliate has incurred (or is
reasonably likely expected to incur) any liability to or on account of a Plan
pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or
4204 of ERISA or Section 4971 or 4975 of the Code or has been notified in
writing that it will incur any liability under any of the foregoing Sections
with respect to any Plan; no proceedings have been instituted (or are reasonably
likely to be instituted) to terminate or to reorganize any Plan or to appoint a
trustee to administer any Plan, and no written notice of any such proceedings
has been given to the Borrower, any Subsidiary or any ERISA Affiliate; and no
lien imposed under the Code or ERISA on the assets of the Borrower or any
Subsidiary or any ERISA Affiliate exists (or is reasonably likely to exist) nor
has the Borrower, any Subsidiary or any ERISA Affiliate been notified in writing
that such a lien will be imposed on the assets of the Borrower, any Subsidiary
or any ERISA Affiliate on account of any Plan, except to the extent that a
breach of any of the foregoing representations, warranties or agreements in this
Section 8.11 would not result, individually or in the aggregate, in an amount of
liability that would be reasonably likely to have a Material Adverse Effect or
relates to any matter disclosed in the financial statements of the Borrower
contained in the Confidential Information Memorandum. No Plan (other than a
multiemployer plan) has an Unfunded Current Liability that would, individually
or when taken together with any other liabilities referenced in this Section
8.11, be reasonably likely to have a Material Adverse Effect. With respect to
Plans that are multiemployer plans (as defined in Section 3(37) of ERISA), the
representations and warranties in this Section 8.11, other than any made with
respect to (a) liability under Section 4201 or 4204 of ERISA or (b) liability
for termination or reorganization of such Plans under ERISA, are made to the
best knowledge of the Borrower.
8.12 Subsidiaries. Schedule 8.12 lists each Subsidiary of the
Borrower (and the direct and indirect ownership interest of the Borrower
therein), in each case existing on the Closing Date. To the knowledge of the
Borrower, each Material Subsidiary as of the Closing Date has been so designated
on Schedule 8.12.
8.13 Patents, etc.. The Borrower and each of the Restricted
Subsidiaries have obtained all patents, trademarks, servicemarks, trade names,
copyrights, licenses and other rights, free from burdensome restrictions, that
are necessary for the operation of their respective businesses as currently
conducted and as proposed to be conducted, except where the failure to obtain
any such rights could not reasonably be expected to have a Material Adverse
Effect.
8.14 Environmental Laws. (a) Other than instances of noncompliance
that could not reasonably be expected to have a Material Adverse Effect: (i) the
Borrower and each of its Subsidiaries are in compliance with all Environmental
Laws in all jurisdictions in which the Borrower and each of its Subsidiaries are
currently doing business (including, without limitation, having obtained all
material permits required under Environmental Laws) and (ii) the Borrower will
comply and cause each of its Subsidiaries to comply with all such Environmental
Laws (including, without limitation, all permits required under Environmental
Laws).
(b) Neither the Borrower nor any of its Subsidiaries has treated, stored,
transported or disposed of Hazardous Materials at or from any currently or
formerly owned Real Estate (as defined in Section 9.1(f)) or facility relating
to its business in a manner that could reasonably be expected to have a Material
Adverse Effect.
55
8.15 Properties. The Borrower and each of the Restricted
Subsidiaries have good title to or leasehold interest in all properties that are
necessary for the operation of their respective businesses as currently
conducted and as proposed to be conducted, free and clear of all Liens (other
than any Liens permitted by this Agreement) and except where the failure to have
such good title could not reasonably be expected to have a Material Adverse
Effect.
SECTION 9. Affirmative Covenants. The Borrower hereby covenants and agrees
that on the Closing Date and thereafter, for so long as this Agreement is in
effect and until the Commitments, the Swingline Commitment and each Letter of
Credit have terminated and the Loans and Unpaid Drawings, together with
interest, Fees and all other Obligations incurred hereunder, are paid in full:
9.1 Information Covenants. The Borrower will furnish to each Lender
and the Administrative Agent:
(a) Annual Financial Statements. As soon as available and in any event on
or before the date on which such financial statements are required to be filed
with the SEC, the consolidated balance sheet of (i) the Borrower and the
Restricted Subsidiaries and (ii) the Borrower and its Subsidiaries, in each
case as at the end of such fiscal year and the related consolidated statement
of operations, redeemable stock and stockholders' equity cash flows for such
fiscal year, setting forth comparative consolidated figures for the preceding
fiscal year, and certified by independent certified public accountants of
recognized national standing whose opinion shall not be qualified as to the
scope of audit or as to the status of the Borrower or any of the Material
Subsidiaries as a going concern, together in any event with a certificate of
such accounting firm stating that in the course of its regular audit of the
business of the Borrower and the Material Subsidiaries, which audit was
conducted in accordance with generally accepted auditing standards, such
accounting firm has obtained no knowledge of any Default or Event of Default
relating to Section 10.9, 10.10 and 10.11 that has occurred and is continuing
or, if in the opinion of such accounting firm such a Default or Event of
Default has occurred and is continuing, a statement as to the nature thereof.
(b) Quarterly Financial Statements. As soon as available and in any event
on or before the date on which such financial statements are required to be
filed with the SEC with respect to each of the first three quarterly
accounting periods in each fiscal year of the Borrower, the consolidated
balance sheet of (i) the Borrower and the Restricted Subsidiaries and (ii) the
Borrower and its Subsidiaries, in each case as at the end of such quarterly
period and the related consolidated statement of operations, redeemable stock
and stockholders' equity income for such quarterly accounting period and for
the elapsed portion of the fiscal year ended with the last day of such
quarterly period, and the related consolidated statement of cash flows for the
elapsed portion of the fiscal year ended with the last day of such quarterly
period, and setting forth comparative consolidated figures for the related
periods in the prior fiscal year or, in the case of such consolidated balance
sheet, for the last day of the prior fiscal year, all of which shall be
certified by an Authorized Officer of the Borrower, subject to changes
resulting from audit and normal year-end audit adjustments.
(c) Budgets. Within 60 days after the commencement of each fiscal year of
the Borrower, budgets of the Borrower in reasonable detail for the fiscal year
as customarily prepared by management of the Borrower for its internal use,
setting forth the principal assumptions upon which such budgets are based.
(d) Officer's Certificates. At the time of the delivery of the financial
statements provided for in Sections 9.1(a) and (b), a certificate of an
Authorized Officer of the Borrower to the effect that no Default or Event of
Default exists or, if any Default or Event of Default
56
does exist, specifying the nature and extent thereof, which certificate shall
set forth (i) the calculations required to establish whether the Borrower and
its Subsidiaries were in compliance with the provisions of Sections 10.9,
10.10 and 10.11 as at the end of such fiscal year or period, as the case may
be, (ii) a specification of any change in the identity of the Restricted
Subsidiaries, Unrestricted Subsidiaries, Acquisition Subsidiaries and Foreign
Subsidiaries as at the end of such fiscal year or period, as the case may be,
from the Restricted Subsidiaries, Unrestricted Subsidiaries, Acquisition
Subsidiaries, and Foreign Subsidiaries, respectively, provided to the Lenders
on the Closing Date or the most recent fiscal year or period, as the case may
be, (iii) the then applicable Status and (iv) the amount of any Pro Forma
Adjustment not previously set forth in a Pro Forma Adjustment Certificate or
any change in the amount of a Pro Forma Adjustment set forth in any Pro Forma
Adjustment Certificate previously provided and, in either case, in reasonable
detail, the calculations and basis therefor; and at the time of the delivery
of the financial statements provided for in Section 9.1(a), a certificate of
an Authorized Officer of the Borrower setting forth in reasonable detail the
Available Amount as at the end of the fiscal year to which such financial
statements relate.
(e) Notice of Default or Litigation. Promptly after an Authorized Officer
of the Borrower or any of its Subsidiaries obtains knowledge thereof, notice
of (i) the occurrence of any event that constitutes a Default or Event of
Default, which notice shall specify the nature thereof, the period of
existence thereof and what action the Borrower proposes to take with respect
thereto, and (ii) any litigation or governmental proceeding pending against
the Borrower or any of its Subsidiaries that could reasonably be expected to
result in a Material Adverse Effect.
(f) Environmental Matters. The Borrower will promptly advise the Lenders
in writing after obtaining knowledge of any one or more of the following
environmental matters, unless such environmental matters would not,
individually or when aggregated with all other such matters, be reasonably
expected to result in a Material Adverse Effect:
(i) Any pending or threatened Environmental Claim against the
Borrower or any of its Subsidiaries or any Real Estate (as defined below);
(ii) Any condition or occurrence on any Real Estate that (x)
results in noncompliance by the Borrower or any of its Subsidiaries with
any applicable Environmental Law or (y) could reasonably be anticipated to
form the basis of an Environmental Claim against the Borrower or any of
its Subsidiaries or any Real Estate;
(iii) Any condition or occurrence on any Real Estate that
could reasonably be anticipated to cause such Real Estate to be subject to
any restrictions on the ownership, occupancy, use or transferability of
such Real Estate under any Environmental Law; and
(iv) The taking of any removal or remedial action in response
to the actual or alleged presence of any Hazardous Material on any Real
Estate.
All such notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and the
Borrower's response thereto. The term "Real Estate" shall mean land, buildings
and improvements owned or leased by the Borrower or any of its Subsidiaries,
but excluding all operating fixtures and equipment, whether or not
incorporated into improvements.
(g) Other Information. Promptly upon filing thereof, copies of any filings
on Form 10-K, 10-Q or 8-K or registration statements with, and reports to,
the SEC by the Borrower or any
57
of its Subsidiaries (other than amendments to any registration statement (to
the extent such registration statement, in the form it becomes effective, is
delivered to the Lenders), exhibits to any registration statement and any
registration statements on Form S-8) and copies of all financial statements,
proxy statements, notices and reports that the Borrower or any of its
Subsidiaries shall send to the holders of any publicly issued debt of the
Borrower and/or any of its Subsidiaries (including the Subordinated Notes) in
their capacity as such holders (in each case to the extent not theretofore
delivered to the Lenders pursuant to this Agreement) and, with reasonable
promptness, such other information (financial or otherwise) as the
Administrative Agent on its own behalf or on behalf of any Lender may
reasonably request in writing from time to time.
(h) Pro Forma Adjustment Certificate. Not later than the consummation of
the acquisition of any Acquired Entity or Business by the Borrower or any
Restricted Subsidiary for which there shall be a Pro Forma Adjustment, a
certificate of an Authorized Officer of the Borrower setting forth the amount
of such Pro Forma Adjustment and, in reasonable detail, the calculations and
basis therefor.
9.2 Books, Records and Inspections. The Borrower will, and will
cause each of the Specified Subsidiaries to, permit officers and designated
representatives of the Administrative Agent or the Required Lenders to visit and
inspect any of the properties or assets of the Borrower and any such Specified
Subsidiary in whomsoever's possession to the extent that it is within the
Borrower's or such Specified Subsidiary's control to permit such inspection, and
to examine the books of account of the Borrower and any such Specified
Subsidiary and discuss the affairs, finances and accounts of the Borrower and of
any such Specified Subsidiary with, and be advised as to the same by, its and
their officers and independent accountants, all at such reasonable times and
intervals and to such reasonable extent as the Administrative Agent or the
Required Lenders may desire.
9.3 Maintenance of Insurance. The Borrower will, and will cause each
of the Material Subsidiaries to, at all times maintain in full force and effect,
with insurance companies that the Borrower believes (in the good faith judgment
of the management of the Borrower) are financially sound and responsible at the
time the relevant coverage is placed or renewed, insurance in at least such
amounts and against at least such risks (and with such risk retentions) as are
usually insured against in the same general area by companies engaged in the
same or a similar business; and will furnish to the Lenders, upon written
request from the Administrative Agent, information presented in reasonable
detail as to the insurance so carried.
9.4 Payment of Taxes. The Borrower will pay and discharge, and will
cause each of its Subsidiaries to pay and discharge, all material taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which material penalties attach thereto, and all lawful material claims that, if
unpaid, could reasonably be expected to become a material Lien upon any
properties of the Borrower or any of the Restricted Subsidiaries, provided that
neither the Borrower nor any of its Subsidiaries shall be required to pay any
such tax, assessment, charge, levy or claim that is being contested in good
faith and by proper proceedings if it has maintained adequate reserves (in the
good faith judgment of the management of the Borrower) with respect thereto in
accordance with GAAP.
9.5 Consolidated Corporate Franchises. The Borrower will do, and
will cause each Material Subsidiary to do, or cause to be done, all things
necessary to preserve and keep in full force and effect its existence, corporate
rights and authority, except to the extent that the failure to do so could not
reasonably be expected to have a Material Adverse Effect; provided,
58
however, that the Borrower and its Subsidiaries may consummate any transaction
permitted under Section 10.3 or 10.4.
9.6 Compliance with Statutes, Obligations, etc. The Borrower will,
and will cause each Subsidiary to, comply with all applicable laws, rules,
regulations and orders, except to the extent the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
9.7 ERISA. Promptly after the Borrower or any Subsidiary or any
ERISA Affiliate knows or has reason to know of the occurrence of any of the
following events that, individually or in the aggregate (including in the
aggregate such events previously disclosed or exempt from disclosure hereunder,
to the extent the liability therefor remains outstanding), would be reasonably
likely to have a Material Adverse Effect, the Borrower will deliver to each of
the Lenders a certificate of an Authorized Officer or any other senior officer
of the Borrower setting forth details as to such occurrence and the action, if
any, that the Borrower, such Subsidiary or such ERISA Affiliate is required or
proposes to take, together with any notices (required, proposed or otherwise)
given to or filed with or by the Borrower, such Subsidiary, such ERISA
Affiliate, the PBGC, a Plan participant (other than notices relating to an
individual participant's benefits) or the Plan administrator with respect
thereto: that a Reportable Event has occurred; that an accumulated funding
deficiency has been incurred or an application is to be made to the Secretary of
the Treasury for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a Plan; that a
Plan having an Unfunded Current Liability has been or is to be terminated,
reorganized, partitioned or declared insolvent under Title IV of ERISA
(including the giving of written notice thereof); that a Plan has an Unfunded
Current Liability that has or will result in a lien under ERISA or the Code;
that proceedings will be or have been instituted to terminate a Plan having an
Unfunded Current Liability (including the giving of written notice thereof);
that a proceeding has been instituted against the Borrower, a Subsidiary or an
ERISA Affiliate pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Plan; that the PBGC has notified the Borrower, any Subsidiary
or any ERISA Affiliate of its intention to appoint a trustee to administer any
Plan; that the Borrower, any Subsidiary or any ERISA Affiliate has failed to
make a required installment or other payment pursuant to Section 412 of the Code
with respect to a Plan; or that the Borrower, any Subsidiary or any ERISA
Affiliate has incurred or will incur (or has been notified in writing that it
will incur) any liability (including any contingent or secondary liability) to
or on account of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062,
4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code.
9.8 Good Repair. The Borrower will, and will cause each of the
Restricted Subsidiaries to, ensure that its properties and equipment used or
useful in its business in whomsoever's possession they may be to the extent that
it is within the Borrower's or such Restricted Subsidiary's control to cause
same, are kept in good repair, working order and condition, normal wear and tear
excepted, and that from time to time there are made in such properties and
equipment all needful and proper repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto, to the extent and in the manner
customary for companies in similar businesses and consistent with third party
leases, except in each case to the extent the failure to do so could not be
reasonably expected to have a Material Adverse Effect.
9.9 Transactions with Affiliates. The Borrower will conduct, and
cause each of the Restricted Subsidiaries to conduct, all transactions with any
of its Affiliates on terms that are substantially as favorable to the Borrower
or such Restricted Subsidiary as it would obtain in a comparable arm's-length
transaction with a Person that is not an Affiliate, provided that the foregoing
restrictions shall not apply to (a) the payment of customary annual fees to KKR
and its
59
Affiliates for management, consulting and financial services rendered to the
Borrower and its Subsidiaries, and investment banking fees paid to KKR and its
Affiliates for services rendered to the Borrower and its Subsidiaries in
connection with divestitures, acquisitions, financings and other transactions,
(b) customary fees paid to members of the Board of Directors of the Borrower and
its Subsidiaries and (c) transactions permitted by Section 10.6.
9.10 End of Fiscal Years; Fiscal Quarters. The Borrower will, for
financial reporting purposes, cause (a) each of its, and each of its
Subsidiaries', fiscal years to end on the last Saturday in June of each year and
(b) each of its, and each of its Subsidiaries', fiscal quarters to end on dates
consistent with such fiscal year-end and the Borrower's past practice; provided,
however, that the Borrower may, upon written notice to the Administrative Agent,
change the financial reporting convention specified above to any other financial
reporting convention reasonably acceptable to the Administrative Agent, in which
case the Borrower and the Administrative Agent will, and are hereby authorized
by the Lenders to, make any adjustments to this Agreement that are necessary in
order to reflect such change in financial reporting.
9.11 Additional Guarantors. The Borrower will cause (a) any direct
or indirect Domestic Subsidiary (other than any Unrestricted Subsidiary or
Acquisition Subsidiary) formed or otherwise purchased or acquired after the date
hereof and (b) any Subsidiary (other than any Unrestricted Subsidiary or
Acquisition Subsidiary) that is not a Domestic Subsidiary on the date hereof but
subsequently becomes a Domestic Subsidiary (other than any Unrestricted
Subsidiary or Acquisition Subsidiary), in each case to execute a supplement to
the Guarantee, in form and substance reasonably satisfactory to the
Administrative Agent, in order to become a Guarantor.
9.12 Pledges of Additional Stock and Evidence of Indebtedness. The
Borrower will pledge, and, in the case of clause (c), will cause each direct
Domestic Subsidiary to pledge, to the Administrative Agent, for the benefit of
the Lenders, (a) all the capital stock of each direct Domestic Subsidiary (other
than any Unrestricted Subsidiary, Acquisition Subsidiary or any Domestic
Subsidiary the assets of which consist primarily of capital stock of Foreign
Subsidiaries) and 65% of all the capital stock of each direct Foreign Subsidiary
(other than any Unrestricted Subsidiary or Acquisition Subsidiary), in each
case, formed or otherwise purchased or acquired after the date hereof, in each
case pursuant to a supplement to the Pledge Agreement in form and substance
reasonably satisfactory to the Administrative Agent, (b) all the capital stock
of any direct Domestic Subsidiary (other than any Unrestricted Subsidiary or
Acquisition Subsidiary) and 65% of all the capital stock of each direct Foreign
Subsidiary (other than any Unrestricted Subsidiary or Acquisition Subsidiary),
in each case that is not a direct Subsidiary on the date hereof but subsequently
becomes a direct Subsidiary (other than an Unrestricted Subsidiary or
Acquisition Subsidiary), in each case pursuant to a supplement to the Pledge
Agreement in form and substance reasonably satisfactory to the Administrative
Agent, and (c) all evidences of Indebtedness in excess of $5,000,000 received by
the Borrower or any of the direct Domestic Subsidiaries (other than any
Unrestricted Subsidiary or Acquisition Subsidiary) in connection with any
disposition of assets pursuant to Section 10.4(b), in each case pursuant to a
supplement to the Pledge Agreement in form and substance reasonably satisfactory
to the Administrative Agent.
9.13 Use of Proceeds. The Borrower will use the Letters of Credit
and the proceeds of all Loans for the purposes set forth in the introductory
statement to this Agreement.
9.14 Changes in Business. The Borrower and its Subsidiaries taken as
a whole will not fundamentally and substantively alter the character of their
business taken as a whole from the business conducted by the Borrower and its
Subsidiaries taken as a whole on the date hereof and other business activities
incidental or related to any of the foregoing.
60
SECTION 10. Negative Covenants. The Borrower hereby covenants and agrees
that on the Closing Date and thereafter, for so long as this Agreement is in
effect and until the Commitments, the Swingline Commitment and each Letter of
Credit have terminated and the Loans and Unpaid Drawings, together with
interest, Fees and all other Obligations incurred hereunder, are paid in full:
10.1 Limitation on Indebtedness. The Borrower will not, and will not
permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of (i) the Borrower to any Subsidiary of the Borrower and
(ii) Indebtedness of any Restricted Subsidiary to the Borrower or any other
Subsidiary of the Borrower;
(c) Indebtedness in respect of any bankers' acceptance, letter of credit,
warehouse receipt or similar facilities entered into in the ordinary course of
business;
(d) except as provided in clauses (j) and (k) below, Guarantee Obligations
incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the
Borrower or other Restricted Subsidiaries that is permitted to be incurred
under this Agreement and (ii) the Borrower in respect of Indebtedness of the
Restricted Subsidiaries that is permitted to be incurred under this Agreement;
(e) Guarantee Obligations incurred in the ordinary course of business in
respect of obligations of suppliers, customers, franchisees, lessors and
licensees;
(f) (i) Indebtedness (including Indebtedness arising under Capital Leases)
incurred within 270 days of the acquisition, construction or improvement of
fixed or capital assets to finance the acquisition, construction or
improvement of such fixed or capital assets or otherwise incurred in respect
of Capital Expenditures permitted by Section 10.12, (ii) Indebtedness arising
under Capital Leases entered into in connection with Permitted Sale Leasebacks
and (iii) Indebtedness arising under Capital Leases, other than Capital Leases
in effect on the date hereof and Capital Leases entered into pursuant to
subclauses (i) and (ii) above, provided that the aggregate amount of
Indebtedness incurred pursuant to this subclause (iii) shall not exceed
$100,000,000 at any time outstanding, and (iv) any refinancing, refunding,
renewal or extension of any Indebtedness specified in subclause (i), (ii) or
(iii) above, provided that the principal amount thereof is not increased above
the principal amount thereof outstanding immediately prior to such
refinancing, refunding, renewal or extension;
(g) Indebtedness outstanding on the date hereof and listed on Schedule
10.1 and any refinancing, refunding, renewal or extension thereof, provided
that (i) the principal amount thereof is not increased above the principal
amount thereof outstanding immediately prior to such refinancing, refunding,
renewal or extension, except to the extent otherwise permitted hereunder, and
(ii) the direct and contingent obligors with respect to such Indebtedness are
not changed;
(h) Indebtedness in respect of Hedge Agreements;
(i) Indebtedness in respect of the Subordinated Notes;
61
(j) (i) Indebtedness of a Person or Indebtedness attaching to assets of a
Person that, in either case, becomes a Restricted Subsidiary (including a
Restricted Subsidiary that is also an Acquisition Subsidiary) or Indebtedness
attaching to assets that are acquired by the Borrower or any Restricted
Subsidiary (including any Acquisition Subsidiary), in each case after the
Closing Date as the result of a Permitted Acquisition, provided that (w) such
Indebtedness existed at the time such Person became a Restricted Subsidiary or
at the time such assets were acquired and, in each case, was not created in
anticipation thereof, (x) such Indebtedness is not guaranteed in any respect
by the Borrower or any Restricted Subsidiary (other than any such person that
so becomes a Restricted Subsidiary), (y)(A) the Borrower pledges the capital
stock of such Person to the Administrative Agent to the extent required under
Section 9.12, (B) such Person executes a supplement to the Guarantee to the
extent required under Section 9.11 and (C) if any such Indebtedness is
secured, (1) the Guarantee referred to in the preceding subclause (B) is
equally and ratably secured or (2) in the case of assets acquired by the
Borrower or any Restricted Subsidiary (other than any Acquisition Subsidiary),
the Borrower's obligations hereunder or such Restricted Subsidiary's
Guarantee, as the case may be, are equally and ratably secured, provided that
the requirements of this subclause (y) shall not apply to an aggregate amount
at any time outstanding of up to (and including) $75,000,000 of the aggregate
of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to
clause (k)(i)(y) below then applies, and (z) the aggregate amount of such
Indebtedness and all Indebtedness incurred under clause (k) below, when taken
together, does not exceed $200,000,000 in the aggregate at any time
outstanding, provided that, when calculating the outstanding amount of
Indebtedness for purposes of this subclause (z), Indebtedness of any
Acquisition Subsidiary, Indebtedness attaching to assets of any Acquisition
Subsidiary and Indebtedness attaching to assets acquired by any Acquisition
Subsidiary shall be excluded, and (ii) any refinancing, refunding, renewal or
extension of any Indebtedness specified in subclause (i) above, provided that,
except to the extent otherwise permitted hereunder, (x) the principal amount
of any such Indebtedness is not increased above the principal amount thereof
outstanding immediately prior to such refinancing, refunding, renewal or
extension and (y) the direct and contingent obligors with respect to such
Indebtedness are not changed;
(k) (i) Indebtedness of the Borrower or any Restricted Subsidiary
(including any Acquisition Subsidiary) incurred to finance a Permitted
Acquisition, provided that (x) such Indebtedness is not guaranteed in any
respect by any Restricted Subsidiary (other than any Person acquired (the
"acquired Person") as a result of such Permitted Acquisition or the Restricted
Subsidiary so incurring such Indebtedness) or, in the case of Indebtedness of
any Restricted Subsidiary, by the Borrower, (y)(A) the Borrower pledges the
capital stock of such acquired Person to the Administrative Agent to the
extent required under Section 9.12, (B) such acquired Person executes a
supplement to the Guarantee to the extent required under Section 9.11 and (C)
if a guarantee by such acquired Person of any such Indebtedness is secured by
assets of such acquired Person, the Guarantee referred to in the preceding
subclause (B) is equally and ratably secured, provided that the requirements
of this subclause (y) shall not apply to an aggregate amount at any time
outstanding of up to (and including) $75,000,000 of the aggregate of (1) such
Indebtedness and (2) all Indebtedness as to which the proviso to clause
(j)(i)(y) above then applies, and (z) the aggregate amount of such
Indebtedness and all Indebtedness assumed or permitted to exist under clause
(j) above, when taken together, does not exceed $200,000,000 in the aggregate
at any time outstanding, provided that, when calculating the outstanding
amount of Indebtedness for purposes of this subclause (z), Indebtedness of any
Acquisition Subsidiary shall be excluded, and (ii) any refinancing, refunding,
renewal or extension of any Indebtedness specified in subclause (i) above,
provided that (x) the principal amount of any such Indebtedness is not
increased above the principal amount thereof outstanding immediately prior to
such refinancing, refunding, renewal or extension and (y) the direct and
contingent obligors with respect to such Indebtedness are not changed, except
to the extent otherwise permitted hereunder;
62
(l) Indebtedness of Restricted Foreign Subsidiaries in an aggregate amount
at any time outstanding not to exceed (i) $20,000,000 minus (ii) the amount
equal to (x) the aggregate amount of Indebtedness incurred and outstanding at
such time pursuant to clause (n) below minus (y) $200,000,000;
(m) (i) Indebtedness incurred in connection with any Permitted Sale
Leaseback and (ii) any refinancing, refunding, renewal or extension of any
Indebtedness specified in subclause (i) above, provided that, except to the
extent otherwise permitted hereunder, (x) the principal amount of any such
Indebtedness is not increased above the principal amount thereof outstanding
immediately prior to such refinancing, refunding, renewal or extension and (y)
the direct and contingent obligors with respect to such Indebtedness are not
changed; and
(n) (i) additional Indebtedness, provided that the aggregate amount of
Indebtedness incurred and remaining outstanding pursuant to this clause (n)
shall not at any time exceed the sum of (x) $200,000,000 and (y) the amount
equal to (A) $20,000,000 minus (B) the aggregate amount of Indebtedness then
outstanding under clause (l) above, and (ii) any refinancing, refunding,
renewal or extension of any Indebtedness specified in subclause (i) above.
10.2 Limitation on Liens. The Borrower will not, and will not permit
any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist
any Lien upon any property or assets of any kind (real or personal, tangible or
intangible) of the Borrower or any Restricted Subsidiary, whether now owned or
hereafter acquired, except:
(a) Liens arising under the Credit Documents;
(b) Permitted Liens;
(c) Liens securing Indebtedness permitted pursuant to Section 10.1(f),
provided that such Liens attach at all times only to the assets so financed;
(d) Liens existing on the date hereof;
(e) Liens existing on the assets of any Person that becomes a Restricted
Subsidiary, or existing on assets acquired, pursuant to a Permitted
Acquisition to the extent the Liens on such assets secure Indebtedness
permitted by Section 10.1(j), provided that such Liens attach at all times
only to the same assets that such Liens attached to, and secure only the same
Indebtedness that such Liens secured, immediately prior to such Permitted
Acquisition;
(f) (i) Liens placed upon the capital stock of any Restricted Subsidiary
acquired pursuant to a Permitted Acquisition to secure Indebtedness of the
Borrower or any other Restricted Subsidiary incurred pursuant to Section
10.1(k) in connection with such Permitted Acquisition, (ii) Liens placed upon
the assets of such Restricted Subsidiary to secure a guarantee by such
Restricted Subsidiary of any such Indebtedness of the Borrower or any other
Restricted Subsidiary and (iii) Liens placed upon the capital stock or assets
of any Acquisition Subsidiary to secure Indebtedness of such Acquisition
Subsidiary incurred pursuant to Section 10.1(k) in connection with any
Permitted Acquisition;
(g) the replacement, extension or renewal of any Lien permitted by clauses
(a) through (f) above upon or in the same assets theretofore subject to such
Lien or the replacement, extension or renewal (without increase in the amount
or change in any direct or contingent obligor) of the Indebtedness secured
thereby; and
63
(h) additional Liens so long as the aggregate principal amount of the
obligations so secured does not exceed $25,000,000 at any time outstanding.
10.3 Limitation on Fundamental Changes. Except as expressly
permitted by Section 10.4 or 10.5, the Borrower will not, and will not permit
any of the Restricted Subsidiaries to, enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease, assign, transfer or
otherwise dispose of, all or substantially all its business units, assets or
other properties, except that:
(a) any Subsidiary of the Borrower or any other Person may be merged or
consolidated with or into the Borrower, provided that (i) the Borrower shall
be the continuing or surviving corporation or the Person formed by or
surviving any such merger or consolidation (if other than the Borrower) shall
be a corporation organized or existing under the laws of the United States,
any state thereof, the District of Columbia or any territory thereof (the
Borrower or such Person, as the case may be, being herein referred to as the
"Successor Borrower"), (ii) the Successor Borrower (if other than the
Borrower) shall expressly assume all the obligations of the Borrower under
this Agreement and the other Credit Documents pursuant to a supplement hereto
or thereto in form reasonably satisfactory to the Administrative Agent, (iii)
no Default or Event of Default would result from the consummation of such
merger or consolidation, (iv) the Successor Borrower shall be in compliance,
on a pro forma basis after giving effect to such merger or consolidation, with
the covenants set forth in Sections 10.9, 10.10 and 10.11, as such covenants
are recomputed as at the last day of the most recently ended Test Period under
such Section as if such merger or consolidation had occurred on the first day
of such Test Period, (v) each Guarantor, unless it is the other party to such
merger or consolidation, shall have by a supplement to the Guarantee confirmed
that its Guarantee shall apply to the Successor Borrower's obligations under
this Agreement and (vi) the Borrower shall have delivered to the
Administrative Agent an officer's certificate and an opinion of counsel, each
stating that such merger or consolidation and such supplement to this
Agreement or any Guarantee comply with this Agreement, provided further that
if the foregoing are satisfied, the Successor Borrower (if other than the
Borrower) will succeed to, and be substituted for, the Borrower under this
Agreement;
(b) any Subsidiary of the Borrower or any other Person may be merged or
consolidated with or into any one or more Subsidiaries of the Borrower,
provided that (i) in the case of any merger or consolidation involving one or
more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the
continuing or surviving corporation or (B) the Borrower shall take all steps
necessary to cause the Person formed by or surviving any such merger or
consolidation (if other than a Restricted Subsidiary) to become a Restricted
Subsidiary, (ii) in the case of any merger or consolidation involving one or
more Guarantors, a Guarantor shall be the continuing or surviving corporation
or the Person formed by or surviving any such merger or consolidation (if
other than a Guarantor) shall execute a supplement to the Guarantee in form
and substance reasonably satisfactory to the Administrative Agent in order to
become a Guarantor, (iii) no Default or Event of Default would result from the
consummation of such merger or consolidation, (iv) the Borrower shall be in
compliance, on a pro forma basis after giving effect to such merger or
consolidation, with the covenants set forth in Sections 10.9, 10.10 and 10.11,
as such covenants are recomputed as at the last day of the most recently ended
Test Period under such Section as if such merger or consolidation had occurred
on the first day of such Test Period, and (v) the Borrower shall have
delivered to the Administrative Agent an Officers' Certificate stating that
such merger or consolidation and such supplement to any Guarantee comply with
this Agreement;
64
(c) any Restricted Subsidiary that is not a Guarantor may sell, lease,
transfer or otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Borrower, a Guarantor or any other Restricted
Subsidiary of the Borrower; and
(d) any Guarantor may sell, lease, transfer or otherwise dispose of any or
all of its assets (upon voluntary liquidation or otherwise) to the Borrower or
any other Guarantor.
10.4 Limitation on Sale of Assets. The Borrower will not, and will
not permit any of the Restricted Subsidiaries to, (i) convey, sell, lease,
assign, transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired (other than any such sale, transfer, assignment
or other disposition resulting from any casualty or condemnation, of any assets
of the Borrower or the Restricted Subsidiaries) or (ii) sell any shares owned by
it of any Restricted Subsidiary's capital stock to any Person other than the
Borrower, a Guarantor or a Restricted Foreign Subsidiary, except that:
(a) the Borrower and the Restricted Subsidiaries may sell, transfer or
otherwise dispose of used or surplus equipment, vehicles, inventory and other
assets in the ordinary course of business;
(b) the Borrower and the Restricted Subsidiaries may sell, transfer or
otherwise dispose of other assets for fair value, provided that (i) the
aggregate amount of such sales, transfers and disposals by the Borrower and
the Restricted Subsidiaries taken as a whole pursuant to this clause (b) shall
not exceed in the aggregate $175,000,000 during the term of this Agreement,
(ii) any consideration in excess of $5,000,000 received by the Borrower or any
Guarantor in connection with such sales, transfers and other dispositions of
assets pursuant to this clause (b) that is in the form of Indebtedness shall
be pledged to the Administrative Agent pursuant to Section 9.12, (iii) with
respect to any such sale, transfer or disposition (or series of related sales,
transfers or dispositions) in an aggregate amount in excess of $10,000,000,
the Borrower shall be in compliance, on a pro forma basis after giving effect
to such sale, transfer or disposition, with the covenants set forth in
Sections 10.9, 10.10 and 10.11, as such covenants are recomputed as at the
last day of the most recently ended Test Period under such Sections as if such
sale, transfer or disposition had occurred on the first day of such Test
Period, and (iv) after giving effect to any such sale, transfer or
disposition, no Default or Event of Default shall have occurred and be
continuing;
(c) the Borrower and the Restricted Subsidiaries may make sales of assets
to the Borrower or to any Restricted Subsidiary, provided that any such sales
to Restricted Foreign Subsidiaries must be for fair value;
(d) any Restricted Subsidiary may effect any transaction permitted by
Section 10.3;
(e) in addition to selling or transferring accounts receivable pursuant to
the other provisions hereof, the Borrower and the Restricted Subsidiaries may
sell or discount without recourse accounts receivable arising in the ordinary
course of business in connection with the compromise or collection thereof;
and
(f) the Borrower and the Restricted Subsidiaries may sell, transfer or
otherwise dispose of Stores in connection with Permitted Sale Leasebacks.
65
10.5 Limitation on Investments. The Borrower will not, and will not
permit any of the Restricted Subsidiaries to, make any advance, loan, extensions
of credit or capital contribution to, or purchase any stock, bonds, notes,
debentures or other securities of or any assets of, or make any other investment
in, any Person, except:
(a) extensions of trade credit and asset purchases in the ordinary course
of business;
(b) Permitted Investments;
(c) loans and advances to officers, directors and employees of the
Borrower or any of its Subsidiaries (i) to finance the purchase of capital
stock of the Borrower and (ii) for additional purposes not contemplated by
subclause (i) above in an aggregate principal amount at any time outstanding
with respect to this clause (ii) not exceeding $10,000,000;
(d) investments existing on the date hereof and any extensions, renewals
or reinvestments thereof, so long as the aggregate amount of all investments
pursuant to this clause (d) is not increased at any time above the amount of
such investments existing on the date hereof;
(e) investments in Hedge Agreements permitted by Section 10.1(h);
(f) investments received in connection with the bankruptcy or
reorganization of suppliers or customers and in settlement of delinquent
obligations of, and other disputes with, customers arising in the ordinary
course of business;
(g) investments to the extent that payment for such investments is made
solely with capital stock of the Borrower;
(h) investments constituting non-cash proceeds of sales, transfers and
other dispositions of assets to the extent permitted by Section 10.4;
(i) investments in any Guarantor;
(j) investments constituting Permitted Acquisitions, provided that the
aggregate amount of any such investment made by the Borrower or any Restricted
Subsidiary (other than any Acquisition Subsidiary) in any Acquisition
Subsidiary shall not exceed the Available Amount at the time of such
investment, provided further that the aggregate amount of any such investment
made by the Borrower or any Restricted Subsidiary (other than any Restricted
Foreign Subsidiary) in any Restricted Foreign Subsidiary shall not exceed (i)
the Available Foreign Investment Amount at the time of such investment minus
(ii) the portion of the Available Foreign Investment Amount being used at such
time for investments made pursuant to clause (n) below;
(k) investments in any Restricted Foreign Subsidiary, provided that the
aggregate amount of any such investment made by the Borrower or any Restricted
Subsidiary (other than any Restricted Foreign Subsidiary) shall not exceed (i)
the Available Foreign Investment Amount at the time of such investment minus
(ii) the portion of the Available Foreign Investment Amount being used at such
time for investments made pursuant to clause (n) below;
(l) investments made to pay for the repurchase, retirement or other
acquisition of the Remaining Equity in an aggregate amount at the time of such
investment not in excess of the lesser of (i) the Available Amount at such
time and (ii) the aggregate amount of such investments then permitted to be
made under the Subordinated Note Indenture;
66
(m) (i) investments made to pay for the repurchase of Putable Shares with
amounts in the Putable Shares Reserve Fund and (ii) investments made to
repurchase or retire common stock of the Borrower owned by the Borrower's
employee stock ownership plan or key employee stock ownership plan; and
(n) additional investments (including investments in Minority Investments,
Unrestricted Subsidiaries and Acquisition Subsidiaries) in an aggregate amount
at the time of such investment not in excess of the sum of (i) the Available
Amount at such time and (ii) the amount equal to one-half of the Available
Foreign Investment Amount at such time.
10.6 Limitation on Dividends. The Borrower will not declare or pay
any dividends (other than dividends payable solely in its capital stock or
rights, warrants or options to purchase its capital stock) or return any capital
to its stockholders or make any other distribution, payment or delivery of
property or cash to its stockholders as such, or redeem, retire, purchase or
otherwise acquire, directly or indirectly, for consideration, any shares of any
class of its capital stock or the capital stock of any direct or indirect parent
of the Borrower now or hereafter outstanding (or any warrants for or options or
stock appreciation rights in respect of any of such shares), or set aside any
funds for any of the foregoing purposes, or permit any of the Restricted
Subsidiaries to purchase or otherwise acquire for consideration (other than in
connection with an investment permitted by Section 10.5) any shares of any class
of the capital stock of the Borrower, now or hereafter outstanding (or any
options or warrants or stock appre ciation rights issued by such Person with
respect to its capital stock) (all of the foregoing "Dividends"), provided that,
so long as no Default or Event of Default exists or would exist after giving
effect thereto, (a) the Borrower may effect the Redemption, (b) the Borrower may
redeem in whole or in part any capital stock of the Borrower for another class
of capital stock or rights to acquire capital stock of the Borrower or with
proceeds from substantially concurrent equity contributions or issuances of new
shares of capital stock, provided that such other class of capital stock
contains terms and provisions at least as advantageous to the Lenders as those
contained in the capital stock redeemed thereby, (c) the Borrower may repurchase
shares of its capital stock (and/or options or warrants in respect thereof) held
by its officers, directors and employees so long as such repurchase is pursuant
to, and in accordance with the terms of, management and/or employee stock plans,
stock subscription agreements or shareholder agreements, (d) the Borrower may
make investments permitted by Section 10.5 and (e) the Borrower may declare and
pay dividends on its capital stock, provided that (i) the aggregate amount of
dividends paid pursuant to this clause (e) shall not at any time exceed 50% of
Cumulative Consolidated Net Income Available to Common Stockholders at such time
and (ii) at the time of the payment of any such dividends and after giving
effect thereto, the Consolidated Total Debt to Consolidated EBITDA Ratio on the
date of such payment of such dividends shall be less than 3.50:1.00.
10.7 Limitations on Debt Payments and Amendments. (a) The Borrower
will not optionally prepay, repurchase or redeem or otherwise defease any
Subordinated Notes; provided, however, that so long as no Default or Event of
Default has occurred and is continuing, the Borrower may optionally prepay,
repurchase or redeem Subordinated Notes (i) for an aggregate price not in excess
of the Available Amount at the time of such prepayment, repurchase or redemption
or (ii) with the proceeds of subordinated Indebtedness that (A) is permitted by
Section 10.1 and (B) has terms material to the interests of the Lenders not
materially less advantageous to the Lenders.
(b) The Borrower will not waive, amend, modify, terminate or release the
Subordinated Note Indenture, to the extent that any such waiver, amendment,
supplement, modification, termination or release would be adverse to the Lenders
in any material respect.
67
10.8 Limitations on Sale Leasebacks. The Borrower will not, and will
not permit any of the Restricted Subsidiaries to, enter into or effect any Sale
Leasebacks of Stores, other than Permitted Sale Leasebacks.
10.9 Consolidated Lease Expense. The Borrower will not permit
Consolidated Lease Expense for any fiscal year of the Borrower set forth below
to exceed the amount set forth below opposite such fiscal year:
Fiscal Year Amount
----------- ------
1998 $ 85,000,000
1999 90,000,000
2000 100,000,000
2001 110,000,000
2002 120,000,000
2003 130,000,000
2004 140,000,000
2005 140,000,000
2006 140,000,000
10.10 Consolidated Total Debt to Consolidated EBITDA Ratio. The
Borrower will not permit the Consolidated Total Debt to Consolidated EBITDA
Ratio for any Test Period ending during any period set forth below to be greater
than the ratio set forth below opposite such period:
Period Ratio
------ -----
Closing Date through second fiscal quarter of 1998 6.00:1.00
Third fiscal quarter of 1998 6.50:1.00
Last fiscal quarter of 1998 through
second fiscal quarter of 1999 6.75:1.00
Last two fiscal quarters of 1999 6.50:1.00
First two fiscal quarters of 2000 5.75:1.00
Last two fiscal quarters of 2000 5.00:1.00
First two fiscal quarters of 2001 4.50:1.00
Last two fiscal quarters of 2001 4.00:1.00
Fiscal year 2002 3.50:1.00
Fiscal year 2003 through Term Loan Maturity Date 3.00:1.00
10.11 Consolidated EBITDA to Consolidated Interest Expense Ratio.
The Borrower will not permit the Consolidated EBITDA to Consolidated Interest
Expense Ratio for
68
any Test Period ending during any period set forth below to be less than the
ratio set forth below opposite such period:
Period Ratio
------ -----
Fiscal year 1998 1.75:1.00
Fiscal year 1999 1.75:1.00
First two fiscal quarters of 2000 1.90:1.00
Last two fiscal quarters of 2000 2.00:1.00
First two fiscal quarters of 2001 2.25:1.00
Last two fiscal quarters of 2001 2.50:1.00
Fiscal year 2002 2.75:1.00
Fiscal year 2003 through Term Loan Maturity Date 3.00:1.00
10.12 Capital Expenditures. (a) The Borrower will not, and will not
permit any of the Restricted Subsidiaries to, make any Capital Expenditures
(other than Distribution Capital Expenditures and Permitted Acquisitions that
constitute Capital Expenditures), that would cause the aggregate amount of such
Capital Expenditures made by the Borrower and the Restricted Subsidiaries in any
fiscal year of the Borrower set forth below to exceed the amount set forth below
opposite such fiscal year:
Fiscal Year Amount
----------- ------
1998 $225,000,000
1999 180,000,000
2000 180,000,000
2001 150,000,000
2002 150,000,000
2003 150,000,000
2004 150,000,000
2005 150,000,000
2006 150,000,000
To the extent that Capital Expenditures (other than Distribution Capital
Expenditures and Permitted Acquisitions that constitute Capital Expenditures)
made by the Borrower and the Restricted Subsidiaries during any fiscal year are
less than the maximum amount permitted to be made for such fiscal year, 75% of
such unused amount (each such amount, a "carry-forward amount") may be carried
forward to the immediately succeeding fiscal year and utilized to make such
Capital Expenditures in such succeeding fiscal year in the event the amount set
forth above for such succeeding fiscal year has been used (it being understood
and agreed that (a) no carry-forward amount may be carried forward beyond the
first three fiscal years immediately succeeding the fiscal year in which it
arose, (b) no portion of the carry-forward amount available for any fiscal year
may be used until the entire amount of such Capital Expenditures permitted to be
made in such fiscal year (without giving effect to such carry-forward amount)
shall be made
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and (c) if the carry-forward amount available for any fiscal year is the sum of
amounts carried forward from each of the two or three immediately preceding
fiscal years, no portion of such carry-forward amount from the earlier of the
two or three immediately preceding fiscal years may be used until the entire
portion of such carry-forward amount from the more recent immediately preceding
fiscal year shall have been used for such Capital Expenditures made in such
fiscal year).
(b) The Borrower will not, and will not permit any of the Restricted
Subsidiaries to, make Distribution Capital Expenditures in excess of $80,000,000
during the term of this Agreement.
SECTION 11. Events of Default. Upon the occurrence of any of the following
specified events (each an "Event of Default"):
11.1 Payments. The Borrower shall (a) default in the payment when
due of any principal of the Loans or (b) default, and such default shall
continue for five or more days, in the payment when due of any interest on the
Loans or any Fees or any Unpaid Drawings or of any other amounts owing hereunder
or under any other Credit Document; or
11.2 Representations, etc.. Any representation, warranty or
statement made or deemed made by any Credit Party herein or in the Guarantee,
the Pledge Agreement or any certificate delivered or required to be delivered
pursuant hereto or thereto shall prove to be untrue in any material respect on
the date as of which made or deemed made; or
11.3 Covenants. Any Credit Party shall (a) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 9.1(e) or Section 10 or (b) default in the due performance or observance
by it of any term, covenant or agreement (other than those referred to in
Section 11.1 or 11.2 or clause (a) of this Section 11.3) contained in this
Agreement, the Guarantee or the Pledge Agreement and such default shall continue
unremedied for a period of at least 30 days after receipt of written notice by
the Borrower from the Administrative Agent or the Required Lenders; or
11.4 Default Under Other Agreements. (a) The Borrower or any of the
Restricted Subsidiaries shall (i) default in any payment with respect to any
Indebtedness (other than the Obligations) in excess of $20,000,000 in the
aggregate, for the Borrower and such Subsidiaries, beyond the period of grace,
if any, provided in the instrument or agreement under which such Indebtedness
was created or (ii) default in the observance or performance of any agreement or
condition relating to any such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or (except in the case of
Indebtedness consisting of any Hedge Agreement) any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause, any such Indebtedness to
become due prior to its stated maturity; or (b) without limiting the provisions
of clause (a) above, any such Indebtedness (other than Indebtedness consisting
of any Hedge Agreement) shall be declared to be due and payable, or required to
be prepaid other than by a regularly scheduled required prepayment or as a
mandatory prepayment, prior to the stated maturity thereof; or
11.5 Bankruptcy, etc.. The Borrower or any Specified Subsidiary
shall commence a voluntary case concerning itself under Title 11 of the United
States Code entitled "Bankruptcy," as now or hereafter in effect, or any
successor thereto (the "Bankruptcy Code"); or an involuntary case is commenced
against the Borrower or any Specified Subsidiary and the petition is not
controverted within 10 days after commencement of the case; or an involuntary
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case is commenced against the Borrower or any Specified Subsidiary and the
petition is not dismissed within 60 days after commencement of the case; or a
custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge
of, all or substantially all of the property of the Borrower or any Specified
Subsidiary; or the Borrower or any Specified Subsidiary commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to the Borrower or any
Specified Subsidiary; or there is commenced against the Borrower or any
Specified Subsidiary any such proceeding that remains undismissed for a period
of 60 days; or the Borrower or any Specified Subsidiary is adjudicated insolvent
or bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or the Borrower or any Specified Subsidiary suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days; or the
Borrower or any Specified Subsidiary makes a general assignment for the benefit
of creditors; or any corporate action is taken by the Borrower or any Specified
Subsidiary for the purpose of effecting any of the foregoing; or
11.6 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof or a waiver of such standard
or extension of any amortization period is sought or granted under Section 412
of the Code; any Plan is or shall have been terminated or is the subject of
termination proceedings under ERISA (including the giving of written notice
thereof); an event shall have occurred or a condition shall exist in either case
entitling the PBGC to terminate any Plan or to appoint a trustee to administer
any Plan (including the giving of written notice thereof); any Plan shall have
an accumulated funding deficiency (whether or not waived); the Borrower or any
Subsidiary or any ERISA Affiliate has incurred or is likely to incur a liability
to or on account of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063,
4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code (including
the giving of written notice thereof); (b) there could result from any event or
events set forth in clause (a) of this Section 11.6 the imposition of a lien,
the granting of a security interest, or a liability, or the reasonable
likelihood of incurring a lien, security interest or liability; and (c) such
lien, security interest or liability will or would be reasonably likely to have
a Material Adverse Effect; or
11.7 Guarantee. The Guarantee or any material provision thereof
shall cease to be in full force or effect or any Guarantor thereunder or any
Credit Party shall deny or disaffirm in writing such Guarantor's obligations
under the Guarantee; or
11.8 Pledge Agreement. The Pledge Agreement or any material
provision thereof shall cease to be in full force or effect (other than pursuant
to the terms hereof or thereof or as a result of acts or omissions of the
Administrative Agent or any Lender) or any Pledgor thereunder or any Credit
Party shall deny or disaffirm in writing such Pledgor's obligations under the
Pledge Agreement; or
11.9 Judgments. One or more judgments or decrees shall be entered
against the Borrower or any of the Restricted Subsidiaries involving a liability
of $20,000,000 or more in the aggregate for all such judgments and decrees for
the Borrower and the Restricted Subsidiaries (to the extent not paid or fully
covered by insurance provided by a carrier not disputing coverage) and any such
judgments or decrees shall not have been satisfied, vacated, discharged or
stayed or bonded pending appeal within 60 days from the entry thereof; or
11.10 Change of Control. A Change of Control shall occur;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Lenders, by
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written notice to the Borrower, take any or all of the following actions,
without prejudice to the rights of the Administrative Agent or any Lender to
enforce its claims against the Borrower, except as otherwise specifically
provided for in this Agreement (provided that, if an Event of Default specified
in Section 11.5 shall occur with respect to the Borrower or any Specified
Subsidiary, the result that would occur upon the giving of written notice by the
Administrative Agent as specified in clauses (i), (ii) and (iv) below shall
occur automatically without the giving of any such notice): (i) declare the
Total Term Loan Commitment and the Total Revolving Commitment terminated,
whereupon the Commitments and Swingline Commitment, if any, of each Lender or
Chase, as the case may be, shall forthwith terminate immediately and any Fees
theretofore accrued shall forthwith become due and payable without any other
notice of any kind; (ii) declare the principal of and any accrued interest in
respect of all Loans and all Obligations owing hereunder and thereunder to be,
whereupon the same shall become, forthwith due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower; (iii) terminate any Letter of Credit that may be terminated in
accordance with its terms; and/or (iv) direct the Borrower to pay (and the
Borrower agrees that upon receipt of such notice, or upon the occurrence of an
Event of Default specified in Section 11.5 with respect to the Borrower or any
Specified Subsidiary, it will pay) to the Administrative Agent at the
Administrative Agent's Office such additional amounts of cash, to be held as
security for the Borrower's reimbursement obligations for Drawings that may
subsequently occur thereunder, equal to the aggregate Stated Amount of all
Letters of Credit issued and then outstanding.
SECTION 12. The Administrative Agent.
12.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Credit Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Credit Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Credit Document or
otherwise exist against the Administrative Agent. Neither the Syndication Agent
nor the Documentation Agent, in their respective capacities as such, shall have
any obligations, duties or responsibilities under this Agreement.
12.2 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement and the other Credit Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
12.3 Exculpatory Provisions. Neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (a) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Credit Document (except for its or such Person's own gross negligence or
willful misconduct) or (b) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any Guarantor or any officer thereof contained in this Agreement or any other
Credit Document or in any certificate, report,
72
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Credit Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Credit Document or
for any failure of the Borrower or any Guarantor to perform its obligations
hereunder or thereunder. The Administrative Agent shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Credit Document, or to inspect the properties, books or
records of the Borrower.
12.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the Lender specified in the Register
with respect to any amount owing hereunder as the owner thereof for all purposes
unless a written notice of assignment, negotiation or transfer thereof shall
have been filed with the Administrative Agent. The Administrative Agent shall be
fully justified in failing or refusing to take any action under this Agreement
or any other Credit Document unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense that may be incurred by it by reason of taking or continuing to take any
such action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Credit
Documents in accordance with a request of the Required Lenders, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Loans.
12.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
the Borrower 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 Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders, provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders (except to the extent that
this Agreement requires that such action be taken only with the approval of the
Required Lenders or each of the Lenders, as applicable).
12.6 Non-Reliance on Administrative Agent and Other Lenders. Each
Lender expressly acknowledges that neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Borrower or any Guarantor, shall be deemed to constitute any representation
or warranty by the Administrative Agent to any Lender. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
the Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and any Guarantor and made its
own decision to make its Loans hereunder and enter into this Agreement. Each
Lender also represents that it
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will, independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Credit Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Borrower and any Guarantor. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, assets, operations, properties, financial
condition, prospects or creditworthiness of the Borrower or any Guarantor that
may come into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
12.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective portions of the Total Credit Exposure in
effect on the date on which indemnification is sought (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with their respective
portions of the Total Credit Exposure in effect immediately prior to such date),
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever that may at any time (including, without limitation, at any time
following the payment of the Loans) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Credit Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing, provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct. The agreements in this Section 12.7 shall
survive the payment of the Loans and all other amounts payable hereunder.
12.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower and any Guarantor
as though the Administrative Agent were not the Administrative Agent hereunder
and under the other Credit Documents. With respect to the Loans made by it, the
Administrative Agent shall have the same rights and powers under this Agreement
and the other Credit Documents as any Lender and may exercise the same as though
it were not the Administrative Agent, and the terms "Lender" and "Lenders" shall
include the Administrative Agent in its individual capacity.
12.9 Successor Agent. The Administrative Agent may resign as
Administrative Agent upon 20 days' prior written notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Credit Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall be approved by the Borrower (which approval shall not be
unreasonably withheld), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this Section 12 shall inure to its
74
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Credit Documents.
SECTION 13. Miscellaneous.
13.1 Amendments and Waivers. Neither this Agreement nor any other
Credit Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 13.1. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (a) enter into with the relevant
Credit Party or Credit Parties written amendments, supplements or modifications
hereto and to the other Credit Documents for the purpose of adding any
provisions to this Agreement or the other Credit Documents or changing in any
manner the rights of the Lenders or of the Borrower hereunder or thereunder or
(b) waive, on such terms and conditions as the Required Lenders or the
Administrative Agent, as the case may be, may specify in such instrument, any of
the requirements of this Agreement or the other Credit Documents or any Default
or Event of Default and its consequences; provided, however, that no such waiver
and no such amendment, supplement or modification shall directly (i) forgive any
portion of any Loan or extend the final scheduled maturity date of any Loan or
reduce the stated rate, or forgive any portion, or extend the date for the
payment, of any interest or fee payable hereunder (other than as a result of
waiving the applicability of any post-default increase in interest rates) or
extend the final expiration date of any Lender's Commitment or extend the final
expiration date of any Letter of Credit beyond the L/C Maturity Date or increase
the aggregate amount of the Commitments of any Lender, in each case without the
written consent of each Lender directly and adversely affected thereby, or (ii)
amend, modify or waive any provision of this Section 13.1 or reduce the
percentages specified in the definitions of the terms "Required Lenders",
"Required Revolving Credit Lenders" and "Required Term Loan Lenders", or consent
to the assignment or transfer by the Borrower of its rights and obligations
under any Credit Document to which it is a party (except as permitted pursuant
to Section 10.3), in each case without the written consent of each Lender
directly and adversely affected thereby, or (iii) amend, modify or waive any
provision of Section 12 without the written consent of the then-current
Administrative Agent, or (iv) amend, modify or waive any provision of Section 3
without the written consent of the Letter of Credit Issuer, or (v) amend, modify
or waive any provisions hereof relating to Swingline Loans without the written
consent of Chase, or (vi) change any Revolving Credit Commitment to a Term Loan
Commitment, or change any Term Loan Commitment to a Revolving Credit Commitment,
in each case without the prior written consent of each Lender directly and
adversely affected thereby, or (vii) decrease any Repayment Amount or extend any
scheduled Repayment Date, in each case without the written consent of the
Required Term Loan Lenders, or (viii) except to the extent permitted under the
applicable Credit Document, release all or substantially all the Collateral
under the Pledge Agreement or release all or substantially all the Guarantors
under the Guarantee, in each case without the written consent of (x) the
Required Revolving Credit Lenders and (y) the Required Term Loan Lenders and
provided further, that at any time that no Default or Event of Default has
occurred and is continuing, the Revolving Credit Commitment of any Lender may be
increased to finance a Permitted Acquisition, with the consent of such Lender,
the Borrower and the Administrative Agent (which consent, in the case of the
Administrative Agent, shall not be unreasonably withheld) and without the
consent of the Required Lenders, so long as (i) the Increased Commitment Amount
(as defined below) at such time, when added to the amount of Indebtedness
incurred pursuant to Section 10.1(k) and outstanding at such time, does not
exceed the limits set forth therein, (ii) the Borrower shall pledge the Capital
Stock of any person acquired pursuant thereto to the Administrative Agent for
the benefit of the Lenders to the extent required under Section 9.12 and (iii)
to the extent determined by the Administrative Agent to be necessary to ensure
pro rata borrowings commencing with the initial borrowing after giving effect to
such increase, the
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Borrower shall prepay any Eurodollar Loans outstanding immediately prior to such
initial borrowing; as used herein, the "Increased Commitment Amount" means, at
any time, aggregate amount of all increases pursuant to this proviso made at or
prior to such time less the aggregate amount of all voluntary reductions of the
Revolving Credit Commitments made prior to such time. Any such waiver and any
such amendment, supplement or modification shall apply equally to each of the
affected Lenders and shall be binding upon the Borrower, such Lenders, the
Administrative Agent and all future holders of the affected Loans. In the case
of any waiver, the Borrower, the Lenders and the Administrative Agent shall be
restored to their former positions and rights hereunder and under the other
Credit Documents, and any Default or Event of Default waived shall be deemed to
be cured and not continuing, it being understood that no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.
13.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission), and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered, or three days after
being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth on Schedule 1.1 in the case of the other
parties hereto, or to such other address as may be hereafter notified by the
respective parties hereto:
The Borrower: Xxxxxxx'x Food Markets, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxx'x Food Markets, Inc.
In care of Kohlberg Kravis Xxxxxxx & Co., L.P.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Fax: (000) 000-0000
The Administrative Agent: The Chase Manhattan Bank
c/o Loan and Agency Services Group
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Fax: (000) 000-0000
with a copy to:
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Fax: (000) 000-0000
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provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to Sections 2.3, 2.6, 2.9, 4.2 and 5.1 shall not be
effective until received.
13.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Credit Documents
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
13.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Credit Documents and in any
document, certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Agreement and the
making of the Loans hereunder.
13.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay
or reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Credit Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees, disbursements and other charges of counsel to the
Administrative Agent, (b) to pay or reimburse each Lender and the Administrative
Agent for all its reasonable and documented costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Credit Documents and any such other documents, including,
without limitation, the reasonable fees, disbursements and other charges of
counsel to each Lender and of counsel to the Administrative Agent, (c) to pay,
indemnify, and hold harmless each Lender and the Administrative Agent from, any
and all recording and filing fees and any and all liabilities with respect to,
or resulting from any delay in paying, stamp, excise and other similar taxes, if
any, that may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the other
Credit Documents and any such other documents, and (d) to pay, indemnify, and
hold harmless each Lender and the Administrative Agent and their respective
directors, officers, employees, trustees and agents from and against any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever,
including, without limitation, reasonable and documented fees, disbursements and
other charges of counsel, with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Credit Documents and
any such other documents, including, without limitation, any of the foregoing
relating to the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower, any of its
Subsidiaries or any of the Properties (all the foregoing in this clause (d),
collectively, the "indemnified liabilities"), provided that the Borrower shall
have no obligation hereunder to the Administrative Agent or any Lender nor any
of their respective directors, officers, employees and agents with respect to
indemnified liabilities arising from (i) the gross negligence or willful
misconduct of the party to be indemnified or (ii) disputes among the
Administrative Agent, the Lenders and/or their transferees. The agreements in
this Section 13.5 shall survive repayment of the Loans and all other amounts
payable hereunder.
13.6 Successors and Assigns; Participations and Assignments. (a) (i)
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, the
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Administrative Agent and their respective successors and assigns, except that
the Borrower may not assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of each Lender.
(ii) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("Participants") participating interests in any Loan owing to such
Lender, any Commitment of such Lender or any other interest of such Lender
hereunder and under the other Credit Documents (including to loan derivative
counterparties in respect of swaps or similar arrangements having the practical
or economic effect thereof). In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof, such Lender
shall remain the holder of any such Loan for all purposes under this Agreement
and the other Credit Documents, and the Borrower and the Administrative Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and the other Credit
Documents. In no event shall any Participant under any such participation have
any right to approve any amendment or waiver of any provision of any Credit
Document, or any consent to any departure by any Credit Party therefrom, except
to the extent that such amendment, waiver or consent would directly forgive any
principal of any Loan or reduce the stated rate, or forgive any portion, or
postpone the date for the payment, of any interest or fee payable hereunder
(other than as a result of waiving the applicability of any post-default
increase in interest rates), or increase the aggregate amount of the Commitments
of any Lender or postpone the date of the final scheduled maturity of any Loan,
in each case to the extent subject to such participation. The Borrower agrees
that if amounts outstanding under this Agreement are due or unpaid, or shall
have been declared or shall have become due and payable upon the occurrence of
an Event of Default, each Participant shall, to the maximum extent permitted by
applicable law, be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement, provided that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in Section 13.7 as fully as if it were
a Lender hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of Sections 2.10 and 2.11 with respect to its
participation in the Commitments and the Loans outstanding from time to time as
if it were a Lender, provided that no Participant shall be entitled to receive
any greater amount pursuant to any such Section than the transferor Lender would
have been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such transfer
occurred.
(iii) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time and from time to time assign to any
Lender or any Affiliate (with the consent of the Borrower if any increased costs
would result therefrom) thereof or, with the consent of the Borrower and the
Administrative Agent (which in each case shall not be unreasonably withheld, it
being understood that, without limitation, the Borrower shall have the right to
withhold its consent to any assignment if, in order for such assignment to
comply with applicable law, the Borrower would be required to obtain the consent
of, or make any filing or registration with, any Governmental Authority), to an
additional bank or fund that is regularly engaged in making, purchasing or
investing in loans or securities or financial institution (an "Assignee") all or
any part of its rights and obligations under this Agreement and the other Credit
Documents pursuant to an Assignment and Acceptance, substantially in the form of
Exhibit F, executed by such Assignee, such assigning Lender (and, in the case of
an Assignee that is not then a Lender or an Affiliate thereof, by the Borrower
and the Administrative Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register,
78
provided that, except in the case of an assignment of all of a Lender's
interests under this Agreement, unless otherwise agreed to by the Borrower and
the Administrative Agent, no such assignment to an Assignee (other than any
Lender or any Affiliate thereof) shall be in an aggregate principal amount of
less than $5,000,000. Upon such execution, delivery, acceptance and recording,
from and after the effective date determined pursuant to such Assignment and
Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the
extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with a Commitment as set forth therein and (y)
the assigning Lender thereunder shall, to the extent provided in such Assignment
and Acceptance, be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Lender's rights and obligations under this Agreement, such
assigning Lender shall cease to be a party hereto). Notwithstanding any
provision of this Agreement to the contrary, the consent of the Borrower shall
not be required for any assignment that occurs at any time when any of the
events described in Section 11.5 shall have occurred and be continuing with
respect to the Borrower.
(b) Nothing herein shall prohibit any Lender from pledging or assigning
all or any portion of its Loans to any Federal Reserve Bank in accordance with
applicable law. In order to facilitate such pledge or assignment, the Borrower
hereby agrees that, upon request of any Lender at any time and from time to time
after the Borrower has made its initial borrowing hereunder, the Borrower shall
provide to such Lender, at the Borrower's own expense, a promissory note,
substantially in the form of Exhibit C-1 or C-2, as the case may be, evidencing
the Term Loans and Revolving Credit Loans, respectively, owing to such Lender.
(c) The Administrative Agent, on behalf of the Borrower, shall maintain at
the address of the Administrative Agent referred to in Section 13.2 a copy of
each Assignment and Acceptance delivered to it and a register (the "Register")
for the recordation of the names and addresses of the Lenders and the Commitment
of, and principal amount of the Loans owing to, each Lender from time to time.
The entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrower, the Administrative Agent and the Lenders shall treat
each Person whose name is recorded in the Register as the owner of a Loan or
other obligation hereunder as the owner thereof for all purposes of this
Agreement and the other Credit Documents, notwithstanding any notice to the
contrary. Any assignment of any Loan or other obligation hereunder shall be
effective only upon appropriate entries with respect thereto being made in the
Register. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(d) (i) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an Affiliate thereof, by the Borrower and the Administrative
Agent) together with payment to the Administrative Agent of a registration and
processing fee of $3,500, the Administrative Agent shall (i) promptly accept
such Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register and
give notice of such acceptance and recordation to the Lenders and the Borrower.
(e) Subject to Section 13.16, the Borrower authorizes each Lender to
disclose to any Participant or Assignee (each, a "Transferee") and any
prospective Transferee any and all financial information in such Lender's
possession concerning the Borrower and its Affiliates that has been delivered to
such Lender by or on behalf of the Borrower pursuant to this Agreement or which
has been delivered to such Lender by or on behalf of the Borrower in connection
with such Lender's credit evaluation of the Borrower and its Affiliates prior to
becoming a party to this Agreement, provided that neither the Administrative
Agent nor any Lender shall provide to
79
any Transferee or prospective Transferee any of the Confidential Information
unless such person shall have previously executed a Confidentiality Agreement in
the form of Exhibit H.
13.7 Replacements of Lenders under Certain Circumstances. The
Borrower shall be permitted to replace any Lender that (a) requests
reimbursement for amounts owing pursuant to Section 2.10, 2.12, 3.5 or 5.4, (b)
is affected in the manner described in Section 2.10(a)(iii) and as a result
thereof any of the actions described in such Section is required to be taken or
(c) becomes a Defaulting Lender, with a replacement bank or other financial
institution, provided that (i) such replacement does not conflict with any
Requirement of Law, (ii) no Event of Default shall have occurred and be
continuing at the time of such replacement, (iii) the Borrower shall repay (or
the replacement bank or institution shall purchase, at par) all Loans and other
amounts (other than any disputed amounts), pursuant to Section 2.10, 2.11, 2.12,
3.5 or 5.4, as the case may be) owing to such replaced Lender prior to the date
of replacement, (iv) the replacement bank or institution, if not already a
Lender, and the terms and conditions of such replacement, shall be reasonably
satisfactory to the Administrative Agent, (v) the replaced Lender shall be
obligated to make such replacement in accordance with the provisions of Section
13.6 (provided that the Borrower shall be obligated to pay the registration and
processing fee referred to therein) and (vi) any such replacement shall not be
deemed to be a waiver of any rights that the Borrower, the Administrative Agent
or any other Lender shall have against the replaced Lender.
13.8 Adjustments; Set-off. (a) If any Lender (a "benefitted Lender")
shall at any time receive any payment of all or part of its Loans, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 11.5, or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Loans, or interest thereon, such benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loan, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
(b) After the occurrence and during the continuance of an Event of
Default, in addition to any rights and remedies of the Lenders provided by law,
each Lender shall have the right, without prior notice to the Borrower, any such
notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set-off and application
made by such Lender, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
13.9 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and
80
the same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.
13.10 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13.11 Integration. This Agreement and the other Credit Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Credit Documents.
13.12 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
13.13 Submission to Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding
relating to this Agreement and the other Credit Documents to which it is a
party, or for recognition and enforcement of any judgment in respect thereof,
to the non-exclusive general jurisdiction of the courts of the State of New
York, the courts of the United States of America for the Southern District of
New York and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or
claim the same;
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to the Borrower at its
address set forth in Section 13.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to xxx
in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may
have to claim or recover in any legal action or proceeding referred to in this
Section 13.13 any special, exemplary, punitive or consequential damages.
13.14 Acknowledgments. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in connection with
this Agreement or any of the other
81
Credit Documents, and the relationship between Administrative Agent and
Lenders, on one hand, and the Borrower, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit Documents or
otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Borrower and the Lenders.
13.15 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
13.16 Confidentiality. The Administrative Agent and each Lender
shall hold all non-public information furnished by or on behalf of the Borrower
in connection with such Lender's evaluation of whether to become a Lender
hereunder or obtained by such Lender or the Administrative Agent pursuant to the
requirements of this Agreement ("Confidential Information"), in accordance with
its customary procedure for handling confidential information of this nature and
(in the case of a Lender that is a bank) in accordance with safe and sound
banking practices and in any event may make disclosure as required or requested
by any governmental agency or representative thereof or pursuant to legal
process or to such Lender's or the Administrative Agent's attorneys,
professional advisors or independent auditors or Affiliates, provided that
unless specifically prohibited by applicable law or court order, each Lender and
the Administrative Agent shall notify the Borrower of any request by any
governmental agency or representative thereof (other than any such request in
connection with an examination of the financial condition of such Lender by such
governmental agency) for disclosure of any such non-public information prior to
disclosure of such information, and provided further that in no event shall any
Lender or the Administrative Agent be obligated or required to return any
materials furnished by the Borrower or any Subsidiary of the Borrower. Each
Lender and the Administrative Agent agrees that it will not provide to
prospective Transferees or to prospective direct or indirect contractual
counterparties in swap agreements to be entered into in connection with Loans
made hereunder any of the Confidential Information unless such Person shall have
previously executed a Confidentiality Agreement in the form of Exhibit H.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Agreement to be duly executed and delivered as of the date first above
written.
XXXXXXX'X FOOD MARKETS, INC.
by /s/ XXX X. XXXXXX
--------------------------------------
Name: Xxx X. Xxxxxx
Title: Senior Vice President
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender,
by /s/ XXXXXXX XXXXX
--------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
NATIONAL WESTMINSTER BANK
PLC, as Syndication Agent and as a
Lender,
by /s/ WAKEFIELD XXXXX
--------------------------------------
Name: X. Xxxxxxxxx Xxxxx
Title: Vice President
CITICORP USA, INC., as
Documentation Agent and as a Lender,
by /s/ XXXXXXX X. XXXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Attorney-in-Fact
BANK OF AMERICA, ILLINOIS,
by /s/ XXXXXXX X. XXXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Attorney-in-Fact
BANK OF MONTREAL,
by /s/ X.X. XXXXXXX
--------------------------------------
Name: X.X. Xxxxxxx
Title: Senior Vice President
BANK OF TOKYO-MITSUBISHI TRUST,
by /s/ XXXXXXXX X. XXXXXXXX, XX.
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx, Xx.
Title: Vice President
BANKBOSTON, N.A.,
by /s/ XXXXX X. XXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
BANKERS TRUST COMPANY,
by /s/ XXXX XX XXXXX
--------------------------------------
Name: Xxxx Xx Xxxxx
Title: Assistant Vice President
CIBC, INC.
by /s/ XXXXXXXXXXX X. KLEXZKOWSKI
--------------------------------------
Name: Xxxxxxxxxxx X. Klexzkowski
Title: Director, CIBC Wood Gundy
Securities Corp., AS AGENT
CREDIT LYONNAIS, NEW YORK
BRANCH,
by /s/ ARTULA KOC
--------------------------------------
Name: Artula Koc
Title: Vice President
THE DAI-ICHI KANGYO BANK, LTD.,
by /s/ XXXXXX XXXXXXXX
--------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President & Group Leader
THE FIRST NATIONAL BANK OF
CHICAGO,
by /s/ XXXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Authorized Agent
FIRSTUST BANK,
by /s/ XX X'XXXXXX
--------------------------------------
Name: Xx X'Xxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK,
by /s/ XXXXX XXXXXXXX
--------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
FLEET NATIONAL BANK,
by /s/ XXXX X. XXXXXX
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Vice President
THE FUJI BANK, LIMITED, HOUSTON,
by /s/ XXXXXX X. XXXXXXXX III
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx III
Title: Vice President & Manager
GENERAL ELECTRIC CAPITAL
CORPORATION,
by /s/ XXXXX X. XXXXX
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
XXXXXXX XXXXX CREDIT
PARTNERS L.P.,
by /s/ XXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
INDUSTRIAL BANK OF JAPAN,
LIMITED
by /s/ TAKUYA HONJO
--------------------------------------
Name: Takuya Honjo
Title: Senior Vice President
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
by /s/ XXXX X. SILVER
--------------------------------------
Name: Xxxx X. Silver
Title: Associate
THE LONG-TERM CREDIT BANK OF
JAPAN,
by /s/ XXXXXXX XXXXXX
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Deputy General Manager
XXXXXXX XXXXX CAPITAL
CORPORATION,
by /s/ XXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION,
by /s/ XXXXXXXXX XXXXXXX
--------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Senior Vice President
NATIONSBANK OF TEXAS, N.A.,
by /s/ FOREST XXXXX SIGNHOFF
--------------------------------------
Name: Forest Xxxxx Signhoff
Title: Senior Vice President
ROYAL BANK OF CANADA,
by /s/ XXXXX X. XXXX
--------------------------------------
Name: Xxxxx X. Xxxx
Title: Retail Group Manager
THE SAKURA BANK, LTD.,
by /s/ XXXXXXXXX XXXXXX
--------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
THE SUMITOMO BANK, LIMITED,
by /s/ XXXX X. XXXXXXXXX
--------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Joint General Manager
XXXXX FARGO BANK, N.A.,
by /s/ XXXX X. XXXX
--------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
THE BANK OF NOVA SCOTIA,
by /s/ F.C.G. XXXXX
--------------------------------------
Name: F.C.G. Xxxxx
Title: Senior Manager-Loan Operation
