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THE PEP BOYS -
MANNY, MOE & XXXX
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AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of April 21, 1995
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THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
as Agent
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AMENDED AND RESTATED CREDIT AGREEMENT dated as of April 21, 1995 between:
THE PEP BOYS - MANNY, MOE & XXXX, a corporation duly organized and validly
existing under the laws of the State of Pennsylvania (the "Company"); each of
the guarantors that is a signatory hereto (individually, a "Guarantor" and
collectively, the "Guarantors"); each of the banks that is a signatory hereto
(such banks, except the Terminating Banks, individually, a "Bank" and,
collectively, the "Banks"); and THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION),
as agent for the Banks (in such capacity, together with its successors in such
capacity, the "Agent").
R E C I T A L S
WHEREAS, the Company and the Guarantors are party to that certain Credit
Agreement dated as of June 16, 1989 with the Agent and the banks signatory
thereto, as amended (the "Existing Credit Agreement");
WHEREAS, the Company has requested that the Existing Credit Agreement be
amended to, among other things, extend the Commitment Termination Date, increase
the aggregate amount of the Commitments, terminate the Commitments of the
Terminating Banks and add First Fidelity Bank, N.A., NatWest Bank, N.A., PNC
Bank, N.A.,Union Bank and Credit Suisse as Banks party to this Agreement;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants contained herein, the Company, the Agent, the
Guarantors, the Banks and the Terminating Banks agree that the Existing Credit
Agreement is hereby amended and restated as follows:
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the following terms shall have
the following meanings (all terms defined in this Section 1.01 or in other
provisions of this Agreement in the singular to have the same meanings when used
in the plural and vice versa):
"Acquisition" shall mean the purchase of (i) all or substantially all of
the assets of any Person or (ii) the stock or other ownership interest in any
Person such that, by such purchase, (x) such Person becomes an Affiliate of the
Company or any Subsidiary thereof or (y) the aggregate stock or other ownership
interest in such Person increases, through such purchases or by aggregating such
purchase with previous purchases during any relevant period, to at least 5% of
the outstanding stock or other ownership interest of such Person.
"Affiliate" shall mean, as to any Person, any other Person which directly
or indirectly controls, or is under common control with, or is controlled by,
such Person. As used in this definition, "control" (including, with its
correlative meanings, "controlled by" and "under common control with") shall
mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise), provided
that, in any event, any Person which owns directly or indirectly 5% or more of
the securities having ordinary voting power for the election of directors or
other governing body of a corporation or 5% or more of the partnership or other
ownership interests of any other Person (other than as a limited partner of such
other Person) will be deemed to control such corporation or other Person.
Notwithstanding the foregoing, no individual shall be deemed to be an Affiliate
of a corporation solely by reason of his or her being an officer or director of
such corporation and a Person and its Subsidiaries shall not be deemed to be
Affiliates of each other.
"Applicable Lending Office" shall mean, for each Bank and for each type of
Loan, the Lending Office of such Bank (or of an affiliate of such Bank)
designated for such type of Loan on the signature pages hereof or such other
office of such Bank (or of an affiliate of such Bank) as such Bank may from time
to time specify to the Agent and the Company as the office by which its Loans of
such type are to be made and maintained.
"Applicable Margin" shall mean with respect to a Eurodollar Loan, a rate
per annum determined in accordance with the Pricing Schedule.
"Base Rate" shall mean, with respect to any Base Rate Loan, for any day,
the higher of (a) the Federal Funds Rate for such day plus 1/4 of 1% per annum
or (b) the Prime Rate for such day. Each change in any interest rate provided
for herein based upon the Base Rate resulting from a change in the Base Rate
shall take effect at the time of such change in the Base Rate.
"Base Rate Loans" shall mean Syndicated Loans which bear interest at rates
based upon the Base Rate.
"Business Day" shall mean any day on which commercial banks are not
authorized or required to close in New York City and, if such day relates to the
giving of notices or quotes in connection with a LIBOR Auction or to a borrowing
of, a payment or prepayment of principal of or interest on, or the Interest
Period for, a Eurodollar Loan or a LIBOR Market Loan or a notice by the Company
with respect to any such borrowing, payment, prepayment or Interest Period,
which is also a day on which dealings in Dollar deposits are carried out in the
London interbank market.
"Capital Lease Obligations" shall mean, as to any Person, the obligations
of such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) real and/or personal property which obligations are
required to be classified and accounted for as a capital lease on a balance
sheet of such Person under GAAP (including State of Financial Accounting
Standards No. 13 of the Financial Accounting Standards Board) and, for purposes
of this Agreement, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP (including such Statement No.
13).
"Chase" shall mean The Chase Manhattan Bank (National Association).
"Closing Date" shall mean the date this Agreement has been executed by the
Company and the Guarantors.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment" shall mean, as to each Bank, the obligation of such Bank to
make Syndicated Loans pursuant to Section 2.01 hereof in an aggregate amount at
any one time outstanding up to but not exceeding the amount set opposite such
Bank's name on the signature pages hereof under the caption "Commitment" (as the
same may be reduced at any time or from time to time pursuant to Section 2.04
hereof).
"Commitment Termination Date" shall mean the Quarterly Date falling on or
nearest to the later of April 21, 2000 and the date to which the initial
Commitment Termination Date is extended pursuant to Section 2.10 hereof.
"Consolidated Subsidiary" shall mean, as to any Person, each Subsidiary of
such Person (whether now existing or hereafter created or acquired) the
financial statements of which shall be (or should have been) consolidated with
the financial statements of such Person in accordance with GAAP.
"Debt to Capital Ratio" shall mean, at any time, the ratio of (a) Senior
Funded Debt at such time to (b) Senior Funded Debt, plus Tangible Net Worth at
such time.
"Default" shall mean an Event of Default or an event which with notice or
lapse of time or both would become an Event of Default.
"Dollars" and "$" shall mean lawful money of the United States of America.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or business which is
a member of the same controlled group of corporations (within the meaning of
Section 414(b) of the Code) as the Company or is under common control (within
the meaning of Section 414(c) of the Code) with the Company.
"Eurodollar Loans" shall mean Syndicated Loans the interest rates on which
are determined on the basis of the rate referred to in the definition of "Fixed
Base Rate" in this Section 1.01.
"Event of Default" shall have the meaning assigned to such term in Section
10 hereof.
"Federal Funds Rate" shall mean, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day, provided that (i) if the day for which such rate is to be determined is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (ii) if such rate is not so published for any day,
the Federal Funds Rate for such day shall be the average rate charged to Chase
on such day on such transactions as determined by the Agent.
"Fixed Base Rate" shall mean, with respect to any Fixed Rate Loan, the
arithmetic mean, as determined by the Agent, of the rate per annum (rounded
upwards, if necessary, to the nearest 1/16 of 1%) quoted by each Reference Bank
at approximately 11:00 a.m. London time (or as soon thereafter as practicable)
on the date two Business Days prior to the first day of the Interest Period for
such Loan for the offering by such Reference Bank to leading banks in the London
interbank market of Dollar deposits having a term comparable to such Interest
Period and in an amount comparable to the principal amount of the Eurodollar
Loan or LIBOR Market Loan to be made by such Reference Bank for such Interest
Period.
If any Reference Bank is not participating in any Fixed Rate Loan, the Fixed
Base Rate for such Loan shall be determined by reference to the amount of the
Loan which such Reference Bank would have made had it been participating in such
Loan; provided that in the case of any LIBOR Market Loan, the Fixed Base Rate
for such Loan shall be determined with reference to deposits of $25,000,000. If
any Reference Bank does not timely furnish such information for determination of
any Fixed Base Rate, the Agent shall determine such Fixed Base Rate on the basis
of information timely furnished by the remaining Reference Banks.
"Fixed Rate" shall mean, for any Fixed Rate Loan, a rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) determined by the Agent to be
equal to the Fixed Base Rate for such Loan for the Interest Period for such Loan
divided by 1 minus the Reserve Requirement for such Loan for such Interest
Period.
"Fixed Rate Loans" shall mean Eurodollar Loans and, for the purposes of the
definition of "Fixed Base Rate" herein and Section 5 hereof, LIBOR Market Loans.
"GAAP" shall mean generally accepted accounting principles applied on a
basis consistent with those which, in accordance with the last sentence of
Section 1.02(a) hereof, are to be used in making the calculations for purposes
of determining compliance with the terms of this Agreement.
"Guarantee" shall mean a guarantee, an endorsement, a contingent agreement
to purchase or to furnish funds for the payment or maintenance of, or otherwise
to be or become contingently liable under or with respect to, the Indebtedness,
other obligations, net worth, working capital or earnings of any Person, or a
guarantee of the payment of dividends or other distributions upon the stock of
any corporation, or an agreement to purchase, sell or lease (as lessee or
lessor) property, products, materials, supplies or services primarily for the
purpose of enabling a debtor to make payment of his, her or its obligations or
an agreement to assure a creditor against loss, and including without
limitation, causing a bank to open a letter of credit for the benefit of another
Person, but excluding endorsements for collection or deposits in the ordinary
course of business. The terms "Guarantee" and "Guaranteed" used as a verb shall
have a correlative meaning.
"Guarantor" shall have the meaning assigned to it in the preamble of this
Agreement.
"Indebtedness" shall mean, as to any Person: (a) indebtedness created,
issued or incurred by such Person for borrowed money (whether by loan or the
issuance and sale of debt securities); (b) obligations of such Person to pay the
deferred purchase or acquisition price of property or services, other than trade
accounts payable (other than for borrowed money) arising, and accrued expenses
incurred, in the ordinary course of business so long as such trade accounts
payable are payable within 90 days of the date the respective goods are
delivered or respective services rendered; (c) Indebtedness of others secured by
a Lien on the property of such Person, whether or not the respective
indebtedness so secured has been assumed by such Person; (d) obligations of such
Person in respect of letters of credit or similar instruments issued or accepted
by banks and other financial institutions for the account of such Person; (e)
Capital Lease Obligations of such Person; and (f) Indebtedness of others
Guaranteed by such Person.
"Interest Expense" shall mean, for any period, the sum of the following:
(a) all interest in respect of Indebtedness accrued or capitalized during such
period (whether or not actually paid during such period) plus (b) the net
amounts payable (or minus the net amounts receivable) under interest rate
protection agreements accrued during such period (whether or not actually paid
or received during such period).
"Interest Period" shall mean:
(a) With respect to any Eurodollar Loan, the period commencing on the date
such Eurodollar Loan is made and ending on the numerically corresponding day in
the first, second, third or sixth calendar month thereafter, as the Company may
select as provided in Section 2.02 hereof, except that each Interest Period
which commences on the last Business Day of a calendar month (or on any day for
which there is no numerically corresponding day in the appropriate subsequent
calendar month) shall end on the last Business Day of the appropriate subsequent
calendar month;
(b) With respect to any Base Rate Loan, the period commencing on the date
such Base Rate Loan is made and ending on the date 30 days thereafter;
(c) With respect to any Set Rate Loan, the period commencing on the date
such Set Rate Loan is made and ending on any Business Day up to 180 days
thereafter, as the Company may select as provided in Section 2.03(b) hereof; and
(d) With respect to any LIBOR Market Loan, the period commencing on the
date such LIBOR Market Loan is made and ending on the numerically corresponding
day in the first, second, third or sixth calendar month thereafter, as the
Company may select as provided in Section 2.03(b) hereof, except that each
Interest Period which commences on the last Business Day of a calendar month (or
any day for which there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Business Day of the appropriate
subsequent calendar month.
Notwithstanding the foregoing: (i) no Interest Period may commence before and
end after the Commitment Termination Date; (ii) each Interest Period which would
otherwise end on a day which is not a Business Day shall end on the next
succeeding Business Day (or, in the case of an Interest Period for Eurodollar
Loans or LIBOR Market Loans, if such next succeeding Business Day falls in the
next succeeding calendar month, on the next preceding Business Day); and (iii)
notwithstanding clause (i) above, no Interest Period for any Fixed Rate Loans or
LIBOR Market Loans shall have a duration of less than one month and, if the
Interest Period for any Fixed Rate Loans would otherwise be a shorter period,
such Loans shall not be available hereunder.
"Leverage Ratio" shall mean, at any time, the ratio of Total Liabilities to
Tangible Net Worth of the Company and its Consolidated Subsidiaries at such
time.
"LIBO Rate" shall mean, for any LIBOR Market Loan, a rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by the
Agent to be equal to the rate of interest specified in the definition of "Fixed
Base Rate" in this Section 1.01 for the Interest Period for such Loan divided by
1 minus the Reserve Requirement for such Loan for such Interest Period.
"LIBOR Auction" shall mean a solicitation of Money Market Quotes setting
forth Money Market Margins based on the LIBO Rate pursuant to Section 2.03
hereof.
"LIBOR Market Loans" shall mean Money Market Loans the interest rates on
which are determined on the basis of LIBO Rates pursuant to a LIBOR Auction.
"Lien" shall mean, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For purposes of this Agreement, the Company or any of its Subsidiaries shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"Loans" shall mean Money Market Loans and Syndicated Loans.
"Majority Banks" shall mean Banks having at least 66-2/3% of the aggregate
amount of the Commitments; provided that, if the Commitments shall have
terminated, Majority Banks shall mean Banks holding at least 66-2/3% of the
aggregate unpaid principal amount of the Loans.
"Margin Stock" shall mean margin stock within the meaning of Regulations U
and X.
"Money Market Borrowing" shall have the meaning assigned to such term in
Section 2.03(b) hereof.
"Money Market Loans" shall mean the loans provided for by Section 2.03
hereof.
"Money Market Margin" shall have the meaning assigned to such term in
Section 2.03(c)(ii)(C) hereof.
"Money Market Quotes" shall mean the quotes requested pursuant to a Money
Market Quote Request.
"Money Market Quote Request" shall have the meaning assigned to such term
in Section 2.03(b) hereof.
"Money Market Rate" shall have the meaning assigned to such term in Section
2.03(c)(ii)(D) hereof.
"Multiemployer Plan" shall mean a multiemployer plan defined as such in
Section 3(37) of ERISA to which contributions have been made by the Company or
any ERISA Affiliate and which is covered by Title IV of ERISA.
"Net Earnings" shall mean, for any period, the net earnings of the Company
and its Consolidated Subsidiaries determined in accordance with GAAP for such
period; provided that, if for any fiscal quarterly period such net earnings
shall be negative (i.e., a loss), "Net Earnings" for such period shall be deemed
to be zero.
"Net Operating Profit" shall mean, for any period for the Company and its
Consolidated Subsidiaries, (i) net sales minus (ii) total costs and expenses
(excluding costs of income taxes and Interest Expense), in each case determined
in accordance with GAAP for such period.
"NOP/Interest Charges Ratio" shall mean, as at any date of determination
thereof, the ratio of (i) Net Operating Profit for the period of four
consecutive fiscal quarters of the Company ending on or most recently ended
prior to such date of determination to (ii) Interest Expense for such period.
"Notes" shall mean the promissory notes provided for by Section 2.08
hereof.
"Obligor" shall mean collectively the Company, the Guarantors and any
Subsidiary of the Company which pursuant to Section 9.13 hereof shall hereafter
become a Guarantor.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, trust, unincorporated organization or
government (or any agency, instrumentality or political subdivision thereof).
"Plan" shall mean an employee benefit or other plan established or
maintained by the Company or any ERISA Affiliate and which is covered by Title
IV of ERISA, other than a Multiemployer Plan.
"Post-Default Rate" shall mean, in respect of any principal of any Loan or
any other amount payable by the Company under this Agreement or any Note that is
not paid when due (whether at stated maturity, by acceleration or otherwise), a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to 2% above the
Base Rate as in effect from time to time (provided that, if the amount so in
default is principal of a Fixed Rate Loan or a Money Market Loan and the due
date thereof is a day other than the last day of the Interest Period therefor,
the "Post-Default Rate" for such principal shall be, for the period from and
including the due date to but excluding the last day of the Interest Period
therefor, 2% above the interest rate for such Loan as provided in Section 3.02
hereof and, thereafter, the rate provided for above in this definition).
"Pricing Schedule" shall mean the Schedule attached hereto identified as
such.
"Prime Rate" shall mean the rate of interest from time to time announced by
Chase at the Principal Office as its prime commercial lending rate.
"Principal Office" shall mean the principal office of the Agent and Chase,
presently located at 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Quarterly Dates" shall mean the last Business Day of each March, June,
September and December in each year, the first of which shall be the first such
day after the date of this Agreement.
"Reference Banks" shall mean Chase, CoreStates Bank and Bank of America
National Trust and Savings Association (or their Applicable Lending Offices, as
the case may be).
"Regulations D, U and X" shall mean, respectively, Regulations D, U and X
of the Board of Governors of the Federal Reserve System (or any successor), as
the same may be amended or supplemented from time to time.
"Regulatory Change" shall mean, with respect to any Bank, any change after
the date of this Agreement in United States Federal, state or foreign law or
regulations (including, without limitation, Regulation D) or the adoption or
making after such date of any interpretation, directive or request applying to a
class of banks including such Bank of or under any United States Federal, state
or foreign law or regulations (whether or not having the force of law) by any
court or governmental or monetary authority charged with the interpretation or
administration thereof.
"Reserve Requirement" shall mean, for any Interest Period for any Fixed
Rate Loan or LIBOR Market Loan, the average maximum rate at which reserves
(including any marginal, supplemental or emergency reserves) are required to be
maintained during such Interest Period under Regulation D by member banks of the
Federal Reserve System in New York City with deposits exceeding one billion
Dollars against "Eurocurrency liabilities" (as such term is used in Regulation
D). Without limiting the effect of the foregoing, the Reserve Requirement shall
include any other reserves required to be maintained by such member banks by
reason of any Regulatory Change against (i) any category of liabilities which
includes deposits by reference to which the Fixed Base Rate for Eurodollar Loans
or LIBOR Market Loans (as the case may be) is to be determined as provided in
the definition of "Fixed Base Rate" or "LIBO Rate" in this Section 1.01 or (ii)
any category of extensions of credit or other assets which includes either type
of Fixed Rate Loan or LIBOR Market Loan.
"Senior Funded Debt" shall mean , as to any Person, Indebtedness of such
Person described in clause (a) of the definition of "Indebtedness", which is not
subordinated by its terms to the payment of any other Indebtedness of such
Person.
"Set Rate Auction" shall mean a solicitation of Money Market Quotes setting
forth Money Market Rates pursuant to Section 2.03 hereof.
"Set Rate Loans" shall mean Money Market Loans the interest rates on which
are determined on the basis of Money Market Rates pursuant to a Set Rate
Auction.
"Subsidiary" shall mean, as to any Person, any corporation of which at
least a majority of the outstanding shares of stock having by the terms thereof
ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether or not at the time stock of any other 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 directly or indirectly owned
or controlled by such Person or one or more of its Subsidiaries or by such
Person and one or more of its Subsidiaries. "Wholly- Owned Subsidiary" shall
mean any such corporation of which all of such shares, other than directors'
qualifying shares, are so owned or controlled.
"Syndicated Loans" shall mean the loans provided for by Section 2.01
hereof.
"Syndicated Notes" shall mean the promissory notes provided for by Section
2.08(a) hereof.
"Tangible Net Worth" shall mean, as at any date of determination thereof,
the sum of the following for any Person and its Consolidated Subsidiaries
determined (without duplication) in accordance with GAAP:
(a) the amount of capital stock, plus
(b) the amount of surplus and retained earnings (or, in the case of a
surplus or retained earnings deficit, minus the amount of such deficit), minus
(c) the sum of the following: cost of treasury shares and the book value of
all assets of such Person and its Consolidated Subsidiaries which should be
classified as intangibles (without duplication of deductions in respect of items
already deducted in arriving at surplus and retained earnings) but in any event
including good-will, research and development costs, trade-marks, trade names,
copyrights, patents and franchises, all reserves and any write-up in the book
value of assets resulting from a revaluation thereof subsequent to January 28,
1989.
"Terminating Banks" shall mean The Fuji Bank, Ltd., First Interstate Bank
of Arizona, N.A. and Bank of America National Trust and Savings Association.
"Total Liabilities" shall mean, as at any date of determination thereof,
the sum, for the Company and its Consolidated Subsidiaries determined (without
duplication) in accordance with GAAP, of all Indebtedness of the Company and its
Consolidated Subsidiaries (including subordinated Indebtedness) and all other
liabilities of the Company and its Subsidiaries which should be classified as
liabilities on a balance sheet of the Company and its Consolidated Subsidiaries
prepared in accordance with GAAP and in any event including all reserves (other
than general contingency reserves) and all deferred taxes and other deferred
items.
1.02 Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Banks
hereunder shall (unless otherwise disclosed to the Bank in writing at the time
of delivery thereof in the manner described in subsection (b) below) be
prepared, in accordance with generally accepted accounting principles applied on
a basis consistent with those used in the preparation of the latest financial
statements furnished to the Bank hereunder after the date hereof. All
calculations made for the purposes of determining compliance with the terms of
this Agreement shall (except as otherwise expressly provided herein) be made by
application of generally accepted accounting principles applied on a basis
consistent with those used in the preparation of the annual or quarterly
financial statements furnished to the Banks pursuant to Section 9.01 hereof
unless (i) the Company shall have objected to determining such compliance on
such basis at the time of delivery of such financial statements or (ii) the
Majority Banks shall so object in writing within 30 days after delivery of such
financial statements, in either of which events such calculations shall be made
on a basis consistent with those used in the preparation of the latest financial
statements as to which such objection shall not have been made (which, if
objection is made in respect of the first financial statements delivered under
Section 9.01 hereof, shall mean the financial statements referred to in Section
8.02 hereof)
(b) The Company shall deliver to the Banks at the same time as the delivery
of any annual or quarterly financial statement under Section 9.01 hereof a
description in reasonable detail of any material variation between the
application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance with the last sentence of
subsection (a) above, and reasonable estimates of the difference between such
statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of compliance with the
covenants set forth in Section 9 hereof, the Company will not change the last
day of its fiscal year from the Saturday in each year falling closest to January
31 of such year (the "Fiscal Date"), or the last day of the first three fiscal
quarters in each of its fiscal years from the thirteenth Saturday of the year
following the Fiscal Date, the twenty-sixth Saturday of the year following the
Fiscal Date and the thirty-ninth Saturday of the year following the Fiscal Date,
respectively.
Section 2. Commitments.
2.01 Syndicated Loans. Each Bank severally agrees, on the terms of this
Agreement, to make loans to the Company in Dollars during the period from and
including the date hereof to but not including the Commitment Termination Date
in an aggregate principal amount at any one time outstanding up to but not
exceeding the amount of such Bank's Commitment as then in effect. Subject to the
terms of this Agreement, during such period the Company may borrow, repay and
reborrow the amount of the Commitments; provided that the aggregate principal
amount of all Money Market Loans, together with the aggregate principal amount
of all Syndicated Loans, at any one time outstanding shall not exceed the
aggregate amount of the Commitments at such time; and provided, further, that
there may be no more than fifteen different Interest Periods for both Syndicated
Loans and Money Market Loans outstanding at the same time (for which purpose
each Interest Period described in a different lettered clause of the definition
of the term "Interest Period" shall be deemed to be a different Interest Period
even if it is coterminous with another Interest Period). The Syndicated Loans
may be Base Rate Loans or Eurodollar Loans (each a "type" of Syndicated Loan).
2.02 Borrowings of Syndicated Loans. The Company shall give the Agent
(which shall promptly notify the Banks) notice of each borrowing hereunder of
Syndicated Loans, which notice shall be irrevocable and effective only upon
receipt by the Agent, shall specify with respect to the Syndicated Loans to be
borrowed (i) the aggregate amount (which shall be at least $10,000,000, and
incremental multiples of $1,000,000, in the case of Eurodollar Loans and at
least $250,000 and incremental multiples of $100,000 in the case of Base Rate
Loans), (ii) the type and date (which shall be a Business Day) and (iii) (in the
case of Fixed Rate Loans) the duration of the Interest Period therefor and shall
be given not later than 10:30 a.m. New York time (in the case of Base Rate
Loans) and 11:00 a.m. New York time (in the case of all Eurodollar Loans) on the
day which is not less than the number of Business Days prior to the date of such
borrowing specified below opposite the type of such Loans:
Type Number of Business Days
Base Rate Loans same day
Eurodollar Loans 3
Not later than 1:00 p.m. New York time on the date specified for each borrowing
of Syndicated Loans hereunder, each Bank shall make available the amount of the
Syndicated Loan to be made by it on such date to the Agent, at account number
NYAO-DI-900-9-000002 maintained by the Agent with Chase at the Principal Office,
in immediately available funds, for account of the Company. The amount so
received by the Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Company by depositing the same, in
immediately available funds, in an account of the Company maintained with Chase
at the Principal Office designated by the Company.
2.03 Money Market Loans.
(a) In addition to borrowings of Syndicated Loans, the Company may, prior
to the Commitment Termination Date and as set forth in this Section 2.03,
request the Banks to make offers to make Money Market Loans to the Company in
Dollars. The Banks may, but shall have no obligation to, make such offers and
the Company may, but shall have no obligation to, accept any such offers in the
manner set forth in this Section 2.03. Money Market Loans may be LIBOR Market
Loans or Set Rate Loans (each a "type" of Money Market Loan), provided that:
(i) there may be no more than fifteen different Interest Periods for both
Syndicated Loans and Money Market Loans outstanding at the same time (for which
purpose each Interest Period described in a different lettered clause of the
definition of the term "Interest Period" shall be deemed to be a different
Interest Period even if it is coterminous with another Interest Period); and
(ii) the aggregate principal amount of all Money Market Loans, together
with the aggregate principal amount of all Syndicated Loans, at any one time
outstanding shall not exceed the aggregate amount of the Commitments at such
time.
(b) When the Company wishes to request offers to make Money Market Loans,
it shall give the Agent (which shall promptly notify the Banks) notice (a "Money
Market Quote Request") so as to be received no later than 11:00 a.m. New York
time on (x) the fifth Business Day prior to the date of borrowing proposed
therein, in the case of a LIBOR Auction or (y) the Business Day next preceding
the date of borrowing proposed therein, in the case of a Set Rate Auction (or,
in any such case, such other time and date as the Company and the Agent, with
the consent of the Majority Banks, may agree). The Company may request offers to
make Money Market Loans for up to three different Interest Periods in a single
notice (for which purpose each Interest Period in a different lettered clause of
the definition of the term "Interest Period" shall be deemed to be a different
Interest Period even if it is coterminous with another Interest Period);
provided that the request for each separate Interest Period shall be deemed to
be a separate Money Market Quote Request for a separate borrowing ("Money Market
Borrowing"). Each such notice shall be substantially in the form of Exhibit C
hereto and shall specify as to each Money Market Borrowing:
(i) the proposed date of such borrowing, which shall be a Business Day;
(ii) the aggregate amount of such Money Market Borrowing, which shall be at
least $10,000,000 (or in larger multiples of $1,000,000) but shall not cause the
limits specified in Section 2.03(a) hereof to be violated;
(iii) the duration of the Interest Period applicable thereto;
(iv) whether the Money Market Quotes requested are to set forth a Money
Market Margin or a Money Market Rate; and
(v) if the Money Market Quotes requested are to set forth a Money Market
Rate, the date on which the Money Market Quotes are to be submitted if it is
before the proposed date of borrowing (the date of which such Money Market
Quotes are to be submitted is called the "Quotation Date"). Except as otherwise
provided in this Section 2.03(b), no Money Market Quote Request shall be given
within five Business Days (or such other number of days as the Company and the
Agent, with the consent of the Majority Banks, may agree) of any other Money
Market Quote Request.
(c) (i) Each Bank (or its Applicable Lending Office) may submit one or more
Money Market Quotes, each containing an offer to make a Money Market Loan in
response to any Money Market Quote Request; provided that, if the Company's
request under Section 2.03(b) hereof specified more than one Interest Period,
such Bank (or its Applicable Lending Office) may make a single submission
containing one or more Money Market Quotes for each such Interest Period. Each
Money Market Quote must be submitted to the Agent not later than (x) 2:00 p.m.
New York time on the fourth Business Day prior to the proposed date of
borrowing, in the case of a LIBOR Auction or (y) 10:00 a.m. New York time on the
Quotation Date, in the case of a Set Rate Auction (or, in any such case, such
other time and date as the Company and the Agent, with the consent of the
Majority Banks, may agree); provided that any Money Market Quote submitted by
Chase (or its Applicable Lending Office) may be submitted, and may only be
submitted, if Chase (or such Applicable Lending Office) notifies the Company of
the terms of the offer contained therein not later than (x) 1:00 p.m. New York
time on the fourth Business Day prior to the proposed date of borrowing, in the
case of a LIBOR Auction or (y) 9:45 a.m. New York time on the Quotation Date, in
the case of a Set Rate Auction. Subject to Sections 5.02(b), 5.03, 7.02 and 10
hereof, any Money Market Quote so made shall be irrevocable except with the
written consent of the Agent given on the instructions of the Company.
(ii) Each Money Market Quote shall be substantially in the form of Exhibit
D hereto and shall specify:
(A) the proposed date of borrowing and the Interest Period therefor;
(B) the principal amount of the Money Market Loan for which each such offer
is being made, which principal amount shall be at least $5,000,000 or a larger
multiple of $1,000,000; provided that the aggregate principal amount of all
Money Market Loans for which a Bank submits Money Market Quotes (x) may be
greater or less than the Commitment of such Bank but (y) may not exceed the
principal amount of the Money Market Borrowing for which offers were requested;
(C) in the case of a LIBOR Auction, the margin above or below the
applicable LIBO Rate (the "Money Market Margin") offered for each such Money
Market Loan, expressed as a percentage (rounded upwards, if necessary, to the
nearest 1/10,000th of 1%) to be added to or subtracted from the applicable LIBO
Rate;
(D) in the case of a Set Rate Auction, the rate of interest per annum
(rounded upwards, if necessary, to the nearest 1/10,000th of 1%) offered for
each such Money Market Loans (the "Money Market Rate"); and
(E) the identity of the quoting Bank.
Unless otherwise agreed by the Agent and the Company, no Money Market Quote
shall contain qualifying, conditional or similar language or propose terms other
than or in addition to those set forth in the applicable Money Market Quote
Request and, in particular, no Money Market Quote may be conditioned upon
acceptance by the Company of all (or some specified minimum) of the principal
amount of the Money Market Loan for which such Money Market Quote is being made.
(d) The Agent shall (x) in the case of a Set Rate Auction, as promptly as
practicable after the Money Market Quote is submitted (but in any event not
later than 10:15 a.m. New York time) or (y) in the case of a LIBOR Auction, by
4:00 p.m. New York time on the day a Money Market Quote is submitted, notify the
Company of the terms (i) of any Money Market Quote submitted by a Bank that is
in accordance with Section 2.03(c) hereof and (ii) of any Money Market Quote
that amends, modifies or is otherwise inconsistent with a previous Money Market
Quote submitted by such Bank with respect to the same Money Market Quote
Request. Any such subsequent Money Market Quote Request shall be disregarded by
the Agent unless such subsequent Money Market Quote is submitted solely to
correct a manifest error in such former Money Market Quote. The Agent's notice
to the Company shall specify (A) the aggregate principal amount of the Money
Market Borrowing for which offers have been received and (B) the respective
principal amounts and Money Market Margins or Money Market Rates, as the case
may be, so offered by each Bank (identifying the Bank that made each Money
Market Quote).
(e) Not later than 11:00 a.m. New York time on (x) the third Business Day
prior to the proposed date of borrowing, in the case of a LIBOR Auction or (y)
the Quotation Date, in the case of a Set Rate Auction (or, in any such case,
such other time and date as the Company and the Agent, with the consent of the
Majority Banks, may agree), the Company shall notify the Agent of its acceptance
or nonacceptance of the offers so notified to it pursuant to Section 2.03(d)
hereof (and the failure of the Company to give such notice by such time shall
constitute non-acceptance) and the Agent shall promptly notify each affected
Bank. In the case of acceptance, such notice shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
Company may accept any Money Market Quote in whole or in part (provided that any
Money Market Quote accepted in part shall be at least $5,000,000 or in larger
multiples of $1,000,000); provided that:
(i) the aggregate principal amount of each Money Market Borrowing may not
exceed the applicable amount set forth in the related Money Market Quote
Request;
(ii) the aggregate principal amount of each Money Market Borrowing shall be
at least $10,000,000 (or in larger multiples of $1,000,000) but shall not cause
the limits specified in Section 2.03(a) hereof to be violated;
(iii) acceptance of offers may be made only in ascending order of Money
Market Margins or Money Market Rates, as the case may be; and
(iv) the Company may not accept any offer where the Agent has advised the
Company that such offer fails to comply with Section 2.03(c)(ii) hereof or
otherwise fails to comply with the requirements of this Agreement (including,
without limitation, Section 2.03(a) hereof).
If offers are made by two or more Banks with the same Money Market Margins or
Money Market Rates, as the case may be, for a greater aggregate principal amount
than the amount in respect of which offers are accepted for the related Interest
Period, the principal amount of Money Market Loans in respect of which such
offers are accepted shall be allocated by the Company among such Banks as nearly
as possible (in multiples of $1,000,000) in proportion to the aggregate
principal amount of such offers. Determinations by the Company of the amounts of
Money Market Loans shall be conclusive in the absence of manifest error.
(f) Any Bank whose offer to make any Money Market Loan has been accepted
shall, not later than 1:00 p.m. New York time on the date specified for the
making of such Loan, make the amount of such Loan available to the Agent at
account number NYAO-DI-900-9-000002 maintained by the Agent with Chase at the
Principal Office in immediately available funds, for account of the Company. The
amount so received by the Agent shall, subject to the terms and conditions of
this Agreement, be made available to the Company on such date by depositing the
same, in immediately available funds, in an account of the Company maintained
with Chase at the Principal Office designated by the Company.
(g) Except for the purpose and to the extent expressly stated in Section
2.05(a) hereof, the amount of any Money Market Loan made by any Bank shall not
constitute a utilization of such Bank's Commitment and except for the purpose
and to the extent expressly stated in Section 4.05(b) hereof, the amount of any
payment made on account of any Money Market Loan made by any Bank shall be for
account of such Bank.
2.04 Changes of Commitments.
(a) The aggregate amount of the Commitments shall be automatically reduced
to zero on the Commitment Termination Date.
(b) The Company shall have the right to terminate or reduce the aggregate
unused amount of the Commitments at any time or from time to time upon not less
than three Business Days' prior notice to the Agent (which shall promptly notify
the Banks) of each such termination or reduction, which notice shall specify the
effective date thereof and the amount of any such reduction (which shall be at
least $10,000,000 or any larger multiple of $1,000,000) and shall be irrevocable
and effective only upon receipt by the Agent.
(c) The Commitments once terminated or reduced may not be reinstated.
2.05 Commitment Fee and Facility Fee. (a) The Company shall pay to the
Agent for account of each Bank a commitment fee on the daily average unused
amount of such Bank's Commitment (solely for which purpose the amount of any
Money Market Borrowing shall be deemed to be a pro rata (based on the
Commitments) utilization of each Bank's Commitment) for the period from and
including the date of this Agreement to but not including the earlier of the
date such Commitment is terminated or the Commitment Termination Date, at a rate
per annum in accordance with the Pricing Schedule.
(b) The Company shall pay to the Agent for account of each Bank a facility
fee on the daily average (whether used or unused) amount of such Bank's
Commitment for the period from and including the date of this Agreement to but
not including the earlier of the date the Commitments are terminated or the
Commitment Termination Date, at a rate per annum in accordance with the Pricing
Schedule.
(c) Accrued commitment fee and facility fee shall be payable on each
Quarterly Date and on the earlier of the date the Commitments are terminated or
the Commitment Termination Date.
2.06 Lending Offices. The Loans of each type made by each Bank shall be
made and maintained at such Bank's Applicable Lending Office for Loans of such
type.
2.07 Several Obligations; Remedies Independent. The failure of any Bank to
make any Loan to be made by it on the date specified therefor shall not relieve
any other Bank of its obligation to make its Loan on such date, but neither any
Bank nor the Agent shall be responsible for the failure of any other Bank to
make a Loan to be made by such other Bank. The amounts payable by the Company at
any time hereunder and under the Notes to each Bank shall be a separate and
independent debt and each Bank shall be entitled to protect and enforce its
rights arising out of this Agreement and the Notes and it shall not be necessary
for any other Bank or the Agent to consent to, or be joined as an additional
party in, any proceedings for such purposes.
2.08 Notes.
(a) The Syndicated Loans made by each Bank shall be evidenced by a single
promissory note of the Company in substantially in the form of Exhibit A-1
hereto, dated the date of the delivery of such Note to the Agent under this
Agreement, payable to such Bank in a principal amount equal to the amount of its
Commitment as originally in effect and otherwise duly completed. The date,
amount, type, interest rate and maturity date of each Syndicated Loan made by
each Bank to the Company, and each payment made on account of the principal
thereof, shall be recorded by such Bank on its books and, prior to any transfer
of such Note held by it, endorsed by such Bank on the schedule attached to such
Note or any continuation thereof.
(b) The Money Market Loans made by any Bank shall be evidenced by a single
promissory note of the Company in substantially the form of Xxxxxxx X- 0 hereto,
dated the date of the delivery of such Note to the Agent under this Agreement,
payable to such Bank and otherwise duly completed. The date, amount, type,
interest rate and maturity date of each Money Market Loan made by each Bank to
the Company, and each payment made on account of the principal thereof, shall be
recorded by such Bank on its books and, prior to any transfer of such Note held
by it, endorsed by such Bank on the schedule attached to such Note or any
continuation thereof.
(c) No Bank shall be entitled to have its Note subdivided, by exchange for
promissory notes of lesser denominations or otherwise, except in connection with
a permitted assignment of all or any portion of such Bank's Commitment, Loans
and Notes pursuant to Section 12.06(b) hereof.
2.09 Prepayments.
(a) The Company may prepay Base Rate Loans upon not less than three
Business Days' prior notice to the Agent (which shall promptly notify the
Banks), which notice shall specify the prepayment date (which shall be a
Business Day) and the amount of the prepayment (which shall be at least (x)
$10,000,000 and in larger multiples of $1,000,000 or (y) the outstanding
principal amount of the Loan) and shall be irrevocable and effective only upon
receipt by the Agent, provided that interest on the principal prepaid, accrued
to the prepayment date, shall be paid on the prepayment date. The Company may
not prepay any Fixed Rate Loans or Money Market Loans (provided that this
sentence shall not affect the Company's obligation to prepay Loans pursuant to
paragraph (b) of this Section 2.09 or the obligations of the Company pursuant to
Section 10 hereof).
(b) If, after giving effect to any termination or reduction of the
Commitments pursuant to Section 2.04 hereof, the outstanding aggregate principal
amount of the Loans exceeds the aggregate amount of the Commitments, the Company
shall pay or prepay the Loans on the date of such termination or reduction in an
aggregate principal amount equal to the excess, together with interest thereon
accrued to the date of such payment or prepayment and any amounts payable
hereunder to Section 5.05 hereof in connection therewith.
2.10 Extension of Commitment Termination Date. (a) At least 60 days but not
more than 90 days prior to each anniversary date of the Closing Date, the
Company and the Guarantors may request, by written notice to the Agent in the
form of Exhibit E hereto, that the Commitment Termination Date be extended for
an additional year from the then current Commitment Termination Date. The Agent
shall promptly notify the Banks of such request for an extension and each Bank
shall notify the Agent of its decision to consent or not to consent to the
request within 30 days from the date of its receipt of the Agent's notice. The
Agent shall promptly notify the Company of the decisions of the Banks.
(b) If the Agent and all the Banks consent to the request, the Commitment
Termination Date shall thereupon be extended for an additional year from the
then current Commitment Termination Date; provided that if any Bank shall not
consent to the requested extension (each such Bank a "Non- Consenting Bank"),
the Company may, with the consent of the Agent, designate another bank
(including a Bank) (each such bank a "Replacement Bank") to replace, and assume
the Commitment of, such Non-Consenting Bank. Each Non- Consenting Bank shall
thereupon assign all its Commitment and interests hereunder pursuant to the
procedure set forth in Section 12.06 hereof to the Replacement Bank designated
by the Company for such Non-Consenting Bank. If the Company has replaced each
Non-Consenting Bank with a Replacement Bank, then the Commitment Termination
Date shall thereupon be extended as requested by the Company and consented to by
the Banks (other than the Non-Consenting Banks) pursuant to Section 2.10(a)
hereof.
2.11 Terminating Banks. The parties hereto hereby agree that,
simultaneously with the execution and delivery hereof, the Company shall pay to
each Terminating Bank all amounts then due and unpaid to such Terminating Bank
under the Existing Credit Agreement and the respective Commitment of each
Terminating Bank under the Existing Credit Agreement shall thereupon be
terminated and the Terminating Banks shall cease to be parties to this
Agreement. The parties hereto hereby further agree that First Fidelity Bank,
N.A., NatWest Bank, N.A., Union Bank, Credit Suisse and PNC Bank, N.A. shall
each become party to this Agreement, each as a "Bank", with a respective
Commitment as set forth opposite its name on the signature pages hereof under
the caption, "Commitment".
Section 3. Payments of Principal and Interest.
3.01 Repayment of Loans. The Company will pay to the Agent for account of
each Bank the principal of each Loan made by such Bank, and each Loan shall
mature, on the last day of the Interest Period therefor.
3.02 Interest. The Company will pay to the Agent for account of each Bank
interest on the unpaid principal amount of each Loan made by such Bank for the
period from and including the date of such Loan to but excluding the date such
Loan shall be paid in full, at the following rates per annum:
(a) if such Loan is a Base Rate Loan, the Base Rate (as in effect from time
to time);
(b) if such Loan is a Fixed Rate Loan, the Fixed Rate for such Loan for the
Interest Period therefor plus the Applicable Margin;
(c) if such Loan is a LIBOR Market Loan, the LIBO Rate for such Loan for
the Interest Period therefor plus (or minus) the Money Market Margin quoted by
the Bank making such Loan in accordance with Section 2.03 hereof; and
(d) if such Loan is a Set Rate Loan, the Money Market Rate for such Loan
for the Interest Period therefor quoted by the Bank making such Loan in
accordance with Section 2.03 hereof.
Notwithstanding the foregoing, the Company will pay to the Agent for account of
each Bank interest at the applicable Post-Default Rate on any principal of any
Loan made by such Bank, and (to the fullest extent permitted by law) on any
other amount payable by the Company hereunder or under the Note held by such
Bank to or for account of such Bank, which shall not be paid in full when due
(whether at stated maturity, by acceleration or otherwise), for the period from
and including the due date thereof to but excluding the date the same is paid in
full. Accrued interest on each Loan shall be payable on the last day of the
Interest Period therefor and, if such Interest Period is longer than three
months, at three-month intervals following the first day of such Interest
Period, except that interest payable at the Post-Default Rate shall be payable
from time to time on demand and interest on any Eurodollar Loan that is
converted into a Base Rate Loan (pursuant to Section 5.04 hereof) shall be
payable on the date of conversion (but only to the extent so converted).
Promptly after the determination of any interest rate provided for herein or any
change therein, the Agent shall give notice to the Banks to which such interest
is payable and the Company.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
4.01 Payments.
(a) Except to the extent otherwise provided herein, all payments of
principal, interest and other amounts to be made by the Company under this
Agreement and the Notes shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to the Agent at account
number NYAO-DI-900-9-000002 maintained by the Agent with Chase at the Principal
Office, not later than 1:00 p.m. New York time on the date on which such payment
shall become due (each such payment made after such time on such due date to be
deemed to have been made on the next succeeding Business Day), provided that, if
a new Loan is to be made by any Bank on a date the Company is to repay any
principal of an outstanding Loan of such Bank, such Bank shall apply the
proceeds of such new Loan to the payment of the principal to be repaid and only
an amount equal to the excess of the principal to be borrowed over the principal
to be repaid shall be made available by such Bank to the Agent as provided in
Section 2.02 hereof or paid by the Company to the Agent pursuant to this Section
4.01, as the case may be.
(b) Any Bank for whose account any such payment is to be made, may (but
shall not be obligated to) debit the amount of any such payment which is not
made by such time to any ordinary deposit account of the Company with such Bank
(with notice to the Company).
(c) The Company shall, at the time of making each payment under this
Agreement or any Note, specify to the Agent the Loans or other amounts payable
by the Company hereunder to which such payment is to be applied (and in the
event that it fails to so specify, or if an Event of Default has occurred and is
continuing, the Agent may distribute such payment to the Banks in such manner as
it or the Majority Banks may determine to be appropriate, subject to Section
4.02 hereof).
(d) Each payment received by the Agent under this Agreement or any Note for
account of a Bank shall be paid promptly to such Bank, in immediately available
funds, for account of such Bank's Applicable Lending Office for the Loan in
respect of which such payment is made.
(e) If the due date of any payment under this Agreement or any Note would
otherwise fall on a day which is not a Business Day such date shall be extended
to the next succeeding Business Day and interest shall be payable for any
principal so extended for the period of such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise provided herein:
(a) each borrowing from the Banks under Section 2.01 hereof shall be made from
the Banks, each payment of commitment fee and facility fee under Section 2.05
hereof shall be made for account of the Banks, and each termination or reduction
of the amount of the Commitments under Section 2.04 hereof shall be applied to
the Commitments of the Banks, pro rata according to the amounts of their
respective Commitments; (b) each payment of principal of Syndicated Loans by the
Company shall be made for account of the Banks pro rata in accordance with the
respective unpaid principal amounts of the Syndicated Loans held by the Banks;
and (c) each payment of interest on Syndicated Loans by the Company shall be
made for account of the Banks pro rata in accordance with the amounts of
interest on Syndicated Loans due and payable to the respective Banks.
4.03 Computations. Interest on Money Market Loans, Fixed Rate Loans,
commitment fee and facility fee shall be computed on the basis of a year of 360
days and actual days elapsed (including the first day but excluding the last
day) occurring in the period for which payable and interest on Base Rate Loans
shall be computed on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed (including the first day but excluding the last day)
occurring in the period for which payable.
4.04 Non-Receipt of Funds by the Agent. Unless the Agent shall have been
notified by a Bank or the Company (the "Payor") prior to the date on which the
Payor is to make payment to the Agent of (in the case of a Bank) the proceeds of
a Loan to be made by it hereunder or (in the case of the Company) a payment to
the Agent for account of one or more of the Banks hereunder (such payment being
herein called the "Required Payment"), which notice shall be effective upon
receipt, that the Payor does not intend to make the Required Payment to the
Agent, the Agent may assume that the Required Payment has been made and may, in
reliance upon such assumption (but shall not be required to), make the amount
thereof available to the intended recipient(s) on such date and, if the Payor
has not in fact made the Required Payment to the Agent, the recipient(s) of such
payment shall, on demand, repay to the Agent the amount so made available
together with interest thereon in respect of each day during the period
commencing on the date such amount was so made available by the Agent until the
date the Agent recovers such amount at a rate per annum equal to the Federal
Funds Rate for such day and, if such recipient(s) shall fail promptly to make
such payment, the Agent shall be entitled to recover such amount, on demand,
from the Payor, together with interest as aforesaid.
4.05 Sharing of Payments, Etc.
(a) The Company agrees that, in addition to (and without limitation of) any
right of set-off, bankers' lien or counterclaim a Bank may otherwise have, each
Bank shall be entitled, at its option, to offset balances held by it for account
of the Company at any of its offices, in Dollars or in any other currency,
against any principal of or interest on any of such Bank's Loans, or any other
amount payable to such Bank hereunder, upon the occurrence of an Event of
Default (regardless of whether such balances are then due to the Company), in
which case it shall promptly notify the Company and the Agent thereof, provided
that such Bank's failure to give such notice shall not affect the validity
thereof.
(b) If any Bank shall obtain payment of any principal of or interest on any
Loan made by it to the Company under this Agreement through the exercise of any
right of set-off, banker's lien or counterclaim or similar right or otherwise,
and, as a result of such payment, such Bank shall have received a greater
percentage of the principal or interest then due hereunder by the Company to
such Bank in respect of Loans than the percentage received by any other Banks,
it shall promptly purchase from such other Banks participations in (or, if and
to the extent specified by such Bank, direct interests in) the Loans made by
such other Banks (or in interest due thereon, as the case may be) in such
amounts, and make such other adjustments from time to time as shall be
equitable, to the end that all the Banks shall share the benefit of such excess
payment (net of any expenses which may be incurred by such Bank in obtaining or
preserving such excess payment) pro rata in accordance with the unpaid principal
and/or interest on the Loans held by each of the Banks. To such end all the
Banks shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored.
(c) The Company agrees that any Bank so purchasing a participation (or
direct interest) in the Loans made by other Banks (or in interest due thereon,
as the case may be) may exercise all rights of set-off, bankers' lien,
counterclaim or similar rights with respect to such participation as fully as if
such Bank were a direct holder of Loans in the amount of such participation.
(d) Nothing contained herein shall require any Bank to exercise any such
right or shall affect the right of any Bank to exercise, and retain the benefits
of exercising, any such right with respect to any other indebtedness or
obligation of the Company.
(e) If, under any applicable bankruptcy, insolvency or other similar law,
any Bank receives a secured claim in lieu of a set-off to which this Section
4.05 applies, such Bank shall, to the extent practicable, exercise its rights in
respect of such secured claim in a manner consistent with the rights of the
Banks entitled under this Section 4.05 to share in the benefits of any recovery
on such secured claim.
Section 5. Yield Protection and Illegality.
Section 5.01 Additional Costs.
(a) The Company shall pay directly to each Bank from time to time such
amounts as such Bank may determine to be necessary to compensate it for any
costs which such Bank determines are attributable to its making or maintaining
of any Fixed Rate Loans or its obligation to make any Fixed Rate Loans
hereunder, or any reduction in any amount receivable by such Bank hereunder in
respect of any of such Loans or such obligation (such increases in costs and
reductions in amounts receivable being herein called "Additional Costs"),
resulting from any Regulatory Change which:
(i) changes the basis of taxation of any amounts payable to such Bank under
this Agreement or its Notes in respect of any of such Loans (other than taxes
imposed on or measured by the overall net income of such Bank or of its
Applicable Lending Office for any of such Loans by the jurisdiction in which
such Bank has its principal office or such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than the Reserve Requirement utilized in the determination
of the Fixed Rate or LIBO Rate for such Loan) relating to any extensions of
credit or other assets of, or any deposits with or other liabilities of, such
Bank (including any of such Loans or any deposits referred to in the definition
of "Fixed Base Rate" in Section 1.01 hereof), or any commitment of such Bank
(including the Commitment of such Bank hereunder); or
(iii) imposes any other condition affecting this Agreement or its Note (or
any of such extensions of credit or liabilities) or Commitment. If any Bank
requests compensation from the Company under this Section 5.01(a), the Company
may, by notice to such Bank (with a copy to the Agent), suspend the obligation
of such Bank to make additional Loans of the type with respect to which such
compensation is requested until the Regulatory Change giving rise to such
request ceases to be in effect (in which case the provisions of Section 5.04
hereof shall be applicable).
(b) Without limiting the effect of the provisions of Section 5.01(a)
hereof, in the event that, by reason of any Regulatory Change, any Bank either
(i) incurs Additional Costs based on or measured by the excess above a specified
level of the amount of a category of deposits or other liabilities of such Bank
which includes deposits by reference to which the interest rate on Eurodollar
Loans is determined as provided in this Agreement or a category of extensions of
credit or other assets of such Bank which includes Eurodollar Loans or (ii)
becomes subject to restrictions on the amount of such a category of liabilities
or assets which it may hold, then, if such Bank so elects by notice to the
Company (with a copy to the Agent), the obligation of such Bank to make
additional Loans of such type hereunder shall be suspended until such Regulatory
Change ceases to be in effect (in which case the provisions of Section 5.04
hereof shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this Section
5.01 (but without duplication), the Company shall pay directly to each Bank from
time to time on request such amounts as such Bank may determine to be necessary
to compensate such Bank for any costs which it determines are attributable to
the maintenance by such Bank (or any Applicable Lending Office), pursuant to any
law or regulation or any interpretation, directive or request (whether or not
having the force of law) of any court or governmental or monetary authority
following any Regulatory Change, or pursuant to any risk-based capital guideline
or other requirement (whether or not having the force of law and whether or not
the failure to comply therewith would be unlawful) heretofore or hereafter
issued by any government or governmental or supervisory authority, including any
implementing at the national level the Basle Accord (including without
limitation, the Final Risk-Based Capital Guidelines of the Board of Governors of
the Federal Reserve System (12 CFR Part 208, Appendix A; 00 XXX Xxxx 000,
Xxxxxxxx X) and the Final Risk-Based Capital Guidelines of the Office of the
Comptroller of the Currency (12 CFR Part 3, Appendix A), of capital in respect
of its Commitment or Loans (such compensation to include, without limitation, an
amount equal to any reduction of the rate of return on assets or equity of such
Bank (or any Applicable Lending Office) to a level below that which such Bank
(or any Applicable Lending Office) could have achieved but for such law,
regulation, interpretation, directive or request). For the purposes of this
Section 5.01(c), "Basle Accord" shall mean the proposals for a risk-based
capital framework described by the Basle Committee on Banking Regulations and
Supervisory Practices in its paper entitled "International Convergence of
Capital Measurement and Capital Standards" dated July 1988, as amended, modified
and supplemented and in effect from time to time.
(d) Each Bank will notify the Company of any event occurring after the date
of this Agreement that will entitle such Bank to compensation under paragraph
(a) or (c) of this Section 5.01 as promptly as practicable, but in any event
within 45 days, after such Bank obtains actual knowledge thereof; provided,
however, that if any Bank fails to give such notice within 45 days after it
obtains actual knowledge of such an event, such Bank shall, with respect to
compensation payable pursuant to this Section 5.01 in respect of any costs
resulting from such event, only be entitled to payment under this Section 5.01
for costs incurred from and after the date 45 days prior to the date that such
Bank does give such notice; and provided, further, that each Bank will designate
a different Applicable Lending Office for the Loans of such Bank affected by
such event if such designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the sole opinion of such Bank, be
disadvantageous to such Bank, except that such Bank shall have no obligation to
designate an Applicable Lending Office located in the United States of America.
Each Bank will furnish to the Company a certificate setting forth the basis and
amount of each request by such Bank for compensation under paragraph (a) or (c)
of this Section 5.01. Determinations and allocations by any Bank for purposes of
this Section 5.01(a) or (b) hereof, or of the effect of capital maintained
pursuant to Section 5.01(c) hereof, on its costs or rate of return of
maintaining Loans or its obligation to make Loans, or on amounts receivable by
it in respect of Loans, and of the amounts required to compensate such Bank
under this Section 5.01, shall be conclusive, provided that such determinations
and allocations are made on a reasonable basis.
5.02 Limitation on Types of Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any Fixed Base Rate for
any Interest Period:
(a) the Agent determines (which determination shall be conclusive) that
quotations of interest rates for the relevant deposits referred to in the
definition of "Fixed Base Rate" in Section 1.01 hereof are not being provided in
the relevant amounts or for the relevant maturities for purposes of determining
rates of interest for any type of Fixed Rate Loans as provided herein; or
(b) the Majority Banks determine (or any Bank that has outstanding a Money
Market Quote with respect to a LIBOR Market Loan determines), which
determination shall be conclusive, and notify (or notifies, as the case may be)
the Agent that the relevant rates of interest referred to in the definition of
"Fixed Base Rate" in Section 1.01 hereof upon the basis of which the rate of
interest for Eurodollar Loans (or LIBOR Market Loans, as the case may be) for
such Interest Period is to be determined are not likely adequate to cover the
cost to such Banks (or to such quoting Bank) of making or maintaining such type
of Loans;
then the Agent shall give the Company and each Bank prompt notice thereof, and
so long as such condition remains in effect, the Banks (or such quoting Bank)
shall be under no obligation to make additional Loans of such type.
5.03 Illegality. Notwithstanding any other provision of this Agreement, in
the event that it becomes unlawful for any Bank or its Applicable Lending Office
to honor its obligation to make or maintain Eurodollar Loans or LIBOR Market
Loans hereunder, then such Bank shall promptly notify the Company thereof (with
a copy to the Agent) and such Bank's obligation to make Eurodollar Loans shall
be suspended until such time as such Bank may again make and maintain Eurodollar
Loans (in which case the provisions of Section 5.04 hereof shall be applicable),
and such Bank shall no longer be obligated to make any LIBOR Market Loan that it
has offered to make.
5.04 Treatment of Affected Loans. If the obligation of any Bank to make
either type of Fixed Rate Loans shall be suspended pursuant to Section 5.01 or
5.03 hereof (Loans of such type being herein called "Affected Loans" and such
type being herein called the "Affected Type"), all Loans (other than Money
Market Loans) which would otherwise be made by such Bank as Loans of the
Affected Type shall be made instead as Base Rate Loans and, if an event referred
to in Section 5.01(b) or 5.03 hereof has occurred and such Bank so requests by
notice to the Company with a copy to the Agent, all Affected Loans of such Bank
then outstanding shall be automatically converted into Base Rate Loans on the
date specified by such Bank in such notice and, to the extent that Affected
Loans are so made (or converted), all payments of principal which would
otherwise be applied to such Bank's Affected Loans shall be applied instead to
such Loans.
5.05 Compensation. The Company shall pay to the Agent for account of each
Bank, upon the request of such Bank through the Agent, such amount or amounts as
shall be sufficient (in the reasonable opinion of such Bank) to compensate it
for any loss, cost or expense which such Bank determines is attributable to:
(a) any payment or conversion of a Fixed Rate Loan or a Set Rate Loan made
by such Bank for any reason (including, without limitation, the acceleration of
the Loans pursuant to Section 10 hereof) on a date other than the last day of
the Interest Period for such Loan; or
(b) any failure by the Company for any reason (including, without
limitation, the failure of any of the conditions precedent specified in Section
7 hereof to be satisfied) to borrow a Fixed Rate Loan or a Set Rate Loan (with
respect to which, in the case of a Money Market Loan, the Company has accepted a
Money Market Quote) from such Bank on the date for such borrowing specified in
the relevant notice of borrowing given pursuant to Section 2.02 or 2.03(b)
hereof.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
which otherwise would have accrued on the principal amount so paid or converted
or not borrowed for the period from the date of such payment, conversion or
failure to borrow to the last day of the Interest Period for such Loan (or, in
the case of a failure to borrow, the Interest Period for such Loan which would
have commenced on the date specified for such borrowing) at the applicable rate
of interest for such Loan provided for herein over (ii) the interest component
of the amount such Bank would have bid in the London interbank market (if such
Loan is a Eurodollar Loan or a LIBOR Market Loan) or the United States secondary
certificate of deposit market (if such Loan is a Set Rate Loan) for Dollar
deposits of leading banks in amounts comparable to such principal amount and
with maturities comparable to such period (as reasonably determined by such
Bank).
Section 6. Guarantee.
6.01 Guarantee. Each Guarantor hereby jointly and severally guarantees to
each Bank and the Agent and their respective successors and assigns the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the principal of and interest on the Loans made by the Banks to,
and the Note held by each Bank of, the Company and all other amounts from time
to time owing to the Banks or the Agent by the Company under this Agreement and
under the Notes, in each case strictly in accordance with the terms hereof and
thereof (such obligations being herein collectively called the "Guaranteed
Obligations"). Each Guarantor hereby further jointly and severally agrees that
if the Company shall fail to pay in full when due (whether at stated maturity,
by acceleration or otherwise) any of the Guaranteed Obligations, such Guarantor
will promptly pay the same, without any demand or notice whatsoever, and that in
the case of any extension of time of payment or renewal of any of the Guaranteed
Obligations, the same will be promptly paid in full when due (whether at
extended maturity, by acceleration or otherwise) in accordance with the terms of
such extension or renewal.
6.02 Obligations Unconditional. The obligations of each Guarantor under
Section 6.01 hereof are absolute and unconditional, joint and several,
irrespective of the value, genuineness, validity, regularity or enforceability
of the obligations of the Company under this Agreement, the Notes or any other
agreement or instrument referred to herein or therein, or any substitution,
release or exchange of any other guarantee of or security for any of the
Guaranteed Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 6.02 that the obligations of each Guarantor
hereunder shall be absolute and unconditional, joint and several, under any and
all circumstances. Without limiting the generality of the foregoing, it is
agreed that the occurrence of any one or more of the following shall not affect
the liability of any Guarantor hereunder:
(i) at any time or from time to time, without notice to such Guarantor, the
time for any performance of or compliance with any of the Guaranteed Obligations
shall be extended, or such performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of this Agreement
or the Notes or any other agreement or instrument referred to herein or therein
shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in this respect, or any right under this Agreement or
the Notes or any other agreement or instrument referred to herein or therein
shall be waived or any other guarantee of any of the Guaranteed Obligations or
any security therefor shall be released or exchanged in whole or in part or
otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of, the Agent or
any Bank or Banks as security for any of the Guaranteed Obligations shall fail
to be perfected.
Each Guarantor hereby expressly waives diligence, presentment, demand of
payment, protest and all notices whatsoever, and any requirement that the Agent
or any Bank exhaust any right, power or remedy or proceed against the Company
under this Agreement or the Notes or any other agreement or instrument referred
to herein or therein, or against any other Person under any other guarantee of,
or security for, any of the Guaranteed Obligations.
6.03 Reinstatement. The obligations of each Guarantor under this Section 6
shall be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of the Company in respect of the Guaranteed Obligations
is rescinded or must be otherwise restored by any holder of any of the
Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise and the Guarantors jointly and severally agree that
they will indemnify the Agent and each Bank on demand for all reasonable costs
and expenses (including, without limitation, fees of counsel) incurred by the
Agent or such Bank in connection with such rescission or restoration.
6.04 Subrogation. The Guarantors hereby agree that until the payment and
satisfaction in full of all Guaranteed Obligations and the expiration and
termination of the Commitments of the Banks under this Agreement they shall not
exercise any right or remedy arising by reason of any performance by them of
their guarantee in Section 6.01 hereof, whether by subrogation or otherwise,
against the Company or any other guarantor of any of the Guaranteed Obligations
or any security for any of the Guaranteed Obligations.
6.05 Remedies. The Guarantors jointly and severally agree that, as between
the Guarantors and the Banks, the obligations of the Company under this
Agreement and the Notes may be declared to be forthwith due and payable as
provided in Section 10 hereof (and shall be deemed to have become automatically
due and payable in the circumstances provided in said Section 10) for purposes
of Section 6.01 hereof notwithstanding any stay, injunction or other prohibition
preventing such declaration (or such obligations from becoming automatically due
and payable) as against the Company and that, in the event of such declaration
(or such obligations being deemed to have become automatically due and payable),
such obligations (whether or not due and payable by the Company) shall forthwith
become due and payable by such Guarantor for purposes of said Section 6.01.
Section 6.06 Continuing Guarantee. The guarantee in this Section 6 is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
Section 6.07 Rights of Contribution. The Guarantors hereby agree, as
between themselves, that if any Guarantor (an "Excess Funding Guarantor") shall
pay Guaranteed Obligations in excess of the Excess Funding Guarantor's Pro Rata
Share (as hereinafter defined) of such Guaranteed Obligations, the other
Guarantors shall, on demand (but subject to the next sentence hereof), pay to
the Excess Funding Guarantor an amount equal to their respective relative Pro
Rata Shares of such Excess Funding Guarantor's payment. The payment obligation
of any Guarantor to any Excess Funding Guarantor under this Section 6.07 shall
be subordinate and subject in right of payment to the prior payment in full of
the obligations of such Guarantor under the other provisions of this Section 6
and such Excess Funding Guarantor shall not exercise any right or remedy with
respect to such excess until payment and satisfaction in full of all of such
obligations. For the purposes hereof, "Pro Rata Share" shall mean, for any
Guarantor, a percentage equal to the percentage that such Guarantor's Tangible
Net Worth as at January 28, 1995 is of the aggregate Tangible Net Worth of all
of the Guarantors as at such date.
Section 7. Conditions Precedent.
7.01 Conditions to Effectiveness. The effectiveness of this Agreement is
subject to the receipt by the Agent of the following documents, each of which
shall be satisfactory to the Agent in form and substance:
(a) Corporate Action. A certificate of each Obligor dated the Closing Date
attesting to all corporate action taken by each Obligor approving this Agreement
and, in the case of the Company, the Notes and borrowings hereunder (including,
without limitation, a certificate setting forth the resolutions of the Board of
Directors of each Obligor adopted in respect of the transactions contemplated
hereby).
(b) Incumbency. A certificate of each Obligor dated the Closing Date in
respect of each of the officers (i) who is authorized to sign on its behalf this
Agreement or the Notes, as the case may be, and (ii) who will, until replaced by
another officer or officers duly authorized for that purpose, act as its
representative for the purposes of signing documents and giving notices and
other communications in connection with this Agreement and the transactions
contemplated hereby (and the Agent and each Bank may conclusively rely on such
certificate until it receives notice in writing from the Company to the
contrary).
(c) Officer's Certificate. A certificate of a senior officer of the Company
to the effect set forth in the first sentence of Section 7.02 hereof.
(d) Opinion of Counsel to the Obligors. An opinion of Xxxxxxx Xxxx &
Xxxxxxxxx, counsel to the Obligors, substantially in the form of Exhibit B
hereto.
(e) Notes. The Notes, duly completed and executed.
(f) Other Documents. Such other documents relating to the transactions
contemplated hereby as the Agent or any Bank or special New York counsel to the
Banks may reasonably request.
7.02 Initial and Subsequent Loans. The obligation of any Bank to make any
Loan (including any Money Market Loan and such Bank's initial Syndicated Loan)
to the Company upon the occasion of each borrowing hereunder is subject to the
further conditions precedent that, both immediately prior to such Loan and also
after giving effect thereto: (a) no Event of Default and, if such borrowing is a
Money Market Loan or will increase the outstanding principal amount of the
Syndicated Loans, no Default shall have occurred and be continuing; and (b) the
representations and warranties made by the Company in Section 8 hereof (other
than, if such borrowing is not a Money Market Loan and will not increase the
outstanding amount of the Syndicated Loans, the last sentence of Section 8.02
hereof and Section 8.03 hereof) shall be true and correct in all material
respects on and as of the date of the making of such Loan with the same force
and effect as if made on and as of such date. Each notice of borrowing by the
Company hereunder shall constitute a certification by the Company to the effect
set forth in the preceding sentence (both as of the date of such notice and,
unless the Company otherwise notifies the Agent prior to the date of such
borrowing, as of the date of such borrowing).
Section 8. Representations and Warranties. The Company represents and
warrants to the Banks that:
8.01 Corporate Existence. Each of the Company and its Subsidiaries: (a) is
a corporation duly organized and validly existing under the laws of the
jurisdiction of its incorporation; (b) has all requisite corporate power, and
has all material governmental licenses, authorizations, consents and approvals
necessary to own its assets and carry on its business as now being or as
proposed to be conducted; and (c) is qualified to do business in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify would have a material
adverse effect on the consolidated financial condition, operations, business or
prospects taken as a whole of the Company and its Consolidated Subsidiaries.
8.02 Financial Condition. The consolidated balance sheet of the Company and
its Consolidated Subsidiaries as at January 28, 1995 and the related
consolidated statements of income, stockholders' equity and cash flows of the
Company and its Consolidated Subsidiaries for the fiscal year ended on said
date, with the opinion thereon of Deloitte & Touche LLP., heretofore furnished
to each of the Banks, are complete and correct and fairly present the
consolidated financial condition of the Company and its Consolidated
Subsidiaries as at said date and the consolidated results of their operations
for the fiscal year ended on said date, all in accordance with generally
accepted accounting principles and practices applied on a consistent basis.
Neither the Company nor any of its Subsidiaries had on said date any material
contingent liabilities, liabilities for taxes, unusual forward or long-term
commitments or unrealized or anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in said balance
sheet as at said date. Since January 28, 1995, there has been no material
adverse change in the consolidated financial condition, operations, business or
prospects taken as a whole of the Company and its Consolidated Subsidiaries from
that set forth in said financial statements as at said date.
8.03 Litigation. Except as disclosed to the Banks in writing prior to the
date of this Agreement, there are no legal or arbitral proceedings or any
proceedings by or before any governmental or regulatory authority or agency, now
pending or (to the knowledge of the Company) threatened against the Company or
any of its Subsidiaries which, if adversely determined, could reasonably be
expected to have a material adverse effect on the consolidated financial
condition, operations, business or prospects taken as a whole of the Company and
its Consolidated Subsidiaries.
8.04 No Breach. None of the execution and delivery of this Agreement and
the Notes, the consummation of the transactions herein contemplated and
compliance with the terms and provisions hereof will conflict with or result in
a breach of, or require any consent under, the charter or by-laws of any
Obligor, or any applicable law or regulation, or any order, writ, injunction or
decree of any court or governmental authority or agency, or any agreement or
instrument to which any Obligor is a party or by which any of them is bound or
to which any of them is subject, or constitute a default under any such
agreement or instrument, or result in the creation or imposition of any Lien
upon any of the revenues or assets of any of them pursuant to the terms of any
such agreement or instrument, except in each case for such conflicts, breaches,
consents, defaults or Liens which would not have a material adverse effect on
the consolidated financial condition, operations, business or prospects taken as
a whole of the Company and its Consolidated Subsidiaries.
8.05 Corporate Action. Each Obligor has all necessary corporate power and
authority to execute, deliver and perform its obligations under this Agreement
and, in the case of the Company, the Notes; the execution delivery and
performance by each Obligor of this Agreement and, in the case of the Company,
the Notes have been duly authorized by all necessary corporate action on its
part; and this Agreement has been duly and validly executed and delivered by
each Obligor and constitutes, and each of the Notes when executed and delivered
for value by the Company will constitute, its legal, valid and binding
obligation, enforceable against such Obligor in accordance with its terms.
8.06 Approvals. No authorizations, approvals or consents of, and no filings
or registrations with, any governmental or regulatory authority or agency are
necessary for the execution, deliver or performance by any Obligor of this
Agreement or, in the case of the Company, the Notes or for the validity or
enforceability thereof.
8.07 Use of Loans. Neither the Company nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose, whether immediate, incidental or ultimate, of
buying or carrying Margin Stock and no part of the proceeds of any Loan
hereunder will be used to buy or carry any margin Stock.
8.08 ERISA. The Company and the ERISA Affiliates have fulfilled their
respective obligations under the minimum funding standards of ERISA and the Code
with respect to each Plan and are in compliance in all material respects with
the presently applicable provisions of ERISA and the Code, and have not incurred
any liability to the PBGC or any Plan or Multiemployer Plan (other than to make
contributions in the ordinary course of business).
8.09 Taxes. United States Federal income tax returns of the Company and its
Subsidiaries have been closed through the fiscal year of the Company ended
February 2, 1991. The Company and its Subsidiaries have filed all United States
Federal income tax returns and all other material tax returns which are required
to be filed by them and have paid all taxes due pursuant to such returns or
pursuant to any assessment received by the Company or any of its Subsidiaries,
except for taxes contested in good faith by appropriate proceedings. The
charges, accruals and reserves on the books of the Company and its Subsidiaries
in respect of taxes and other governmental charges are, in the opinion of the
Company, adequate.
8.10 Investment Company Act. The Company is not an "investment company" or
a company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
8.11 Credit Agreements and Liens. Schedule I hereto is a complete and
correct list, as of the date of this Agreement, of each credit agreement, loan
agreement, indenture, purchase agreement, guarantee or other arrangement
providing for or otherwise relating to any Indebtedness or any extension of
credit (or commitment for any extension of credit) to, or guarantee by, the
Company or any of its Subsidiaries the aggregate principal or face amount of
which equals or exceeds (or may equal or exceed) $500,000 and (i) the aggregate
principal or face amount outstanding or which may become outstanding under each
such arrangement and (ii) the asset(s), if any, securing such Indebtedness or
extensions of credit, is correctly described in said Schedule I. The aggregate
carrying value (computed in accordance with GAAP) of the assets of the Company
and its Subsidiaries subject to a Lien on the date hereof does not exceed
$25,000,000.
8.12 Subsidiaries. Set forth in Schedule II hereto is a complete and
correct list, as of the date of this Agreement, of all Subsidiaries of the
Company (and this respective jurisdiction or incorporation of each such
Subsidiary) and the percentage of ownership by the Company (or any Subsidiary
thereof) of each of the same. Except as disclosed in said Schedule II, the
Company owns, free and clear of Liens, all outstanding shares of such
Subsidiaries (and each such Subsidiary owns, free and clear of Liens, all
outstanding shares of its Subsidiaries) and all such shares are validly issued,
fully paid and non-assessable. Each Subsidiary of the Company is a Guarantor.
Section 9. Covenants of the Company. The Company agrees that, so long as
any of the Commitments are in effect and until payment in full of all Loans
hereunder, all interest thereon and all other amounts payable by the Company
hereunder:
9.01 Financial Statements. The Company shall deliver to each of the Banks:
(a) as soon as available and in any event within 60 days after the end of
each of the first three quarterly fiscal periods of each fiscal year of the
Company, consolidated statements of income, stockholders' equity and cash flows
of the Company and its Consolidated Subsidiaries for such period and for the
period from the beginning of the respective fiscal year to the end of such
period, and the related consolidated balance as at the end of such period,
setting forth in comparative form the corresponding consolidated figures for the
corresponding period in the preceding fiscal year, accompanied by a certificate
of a senior financial officer of the Company, which certificate shall state that
said financial statements fairly present the consolidated financial condition
and results of operations of the Company and its Consolidated Subsidiaries in
accordance with generally accepted accounting principles, consistently applied,
as at the end of, and for, such period (subject to normal year-end audit
adjustments);
(b) as soon as available and in any event within 120 days after the end of
each fiscal year of the Company, consolidated statements of income,
stockholders' equity and cash flows of the Company and its Consolidated
Subsidiaries for such year and the related consolidated balance sheet as at the
end of such year, setting forth in comparative form the corresponding
consolidated figures for the preceding fiscal year, and accompanied by an
opinion thereon of independent certified public accountants of recognized
national standing, which opinion shall state that said consolidated financial
statements fairly present the consolidated financial condition and results of
operations of the Company and its Consolidated Subsidiaries as at the end of,
and for, such fiscal year, and a certificate of such accountants stating that,
in making the examination necessary for their opinion, they obtained no
knowledge, except as specifically stated, of any Default;
(c) promptly upon their becoming publicly available, copies of all
registration statements and regular periodic reports, if any, which the Company
shall have filed with the Securities and Exchange Commission (or any
governmental agency substituted therefor) or any national securities exchange;
(d) promptly upon the mailing thereof to the shareholders of the Company
generally, copies of all financial statements, reports and proxy statements so
mailed;
(e) as soon as possible, and in any event within ten days after the Company
knows or has reason to know that any of the events or conditions specified below
with respect to any Plan or Multiemployer Plan have occurred or exist, a
statement signed by a senior financial officer of the Company setting forth
details respecting such event or condition and the action, if any, which the
Company or its ERISA Affiliate proposes to take with respect thereto (and a copy
of any report or notice required to be filed with or given to PBGC by the
Company or an ERISA Affiliate with respect to such event or condition):
(i) any reportable event, as defined in Section 4043(b) of ERISA and the
regulations issued thereunder, with respect to a Plan, as to which PBGC has not
by regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event (provided that a failure
to meet the minimum funding standard of Section 412 of the Code or Section 302
of ERISA shall be a reportable event regardless of the issuance of any waivers
in accordance with Section 412(d) of the Code);
(ii) the filing under Section 4041 of ERISA of a notice of intent to
terminate any Plan or the termination of any Plan;
(iii) the institution by PBGC of proceedings under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any Plan,
or the receipt by the Company or any ERISA Affiliate of a notice from a
Multiemployer Plan that such action has been taken by PBGC with respect to such
Multiemployer Plan;
(iv) the complete or partial withdrawal by the Company or any ERISA
Affiliate under Section 4201 or 4204 of ERISA from a Multiemployer Plan, or the
receipt by the Company or any ERISA Affiliate of notice from a Multiemployer
Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245
of ERISA or that it intends to terminate or has terminated under Section 4041A
of ERISA; and
(v) the institution of a proceeding by a fiduciary of any Multiemployer
Plan against the Company or any ERISA Affiliate to enforce Section 515 of ERISA,
which proceeding is not dismissed within 30 days;
(f) promptly after the Company knows or has reason to know that any Default
has occurred, a notice of such Default describing the same in reasonable detail
and, together with such notice or as soon thereafter as possible, a description
of the action that the Company has taken and proposes to take with respect
thereto; and
(g) from time to time such other information regarding the business,
affairs or financial condition of the Company or any of its Subsidiaries
(including, without limitation, any Plan or Multiemployer Plan and any reports
or other information required to be filed under ERISA) as any Bank or the Agent
may reasonably request.
The Company will furnish to each Bank, at the time it furnishes each set of
financial statements pursuant to paragraph (a) or (b) above, a certificate of a
senior financial officer of the Company (i) to the effect that no Default has
occurred and is continuing (or, if any Default has occurred and is continuing,
describing the same in reasonable detail and describing the action that the
Company has taken and proposes to take with respect thereto) and (ii) setting
forth in reasonable detail the computations necessary to determine whether the
Company is in compliance with Sections 9.07 through and including 9.10 hereof as
of the end of the respective quarterly fiscal periods or fiscal year.
9.02 Litigation. The Company will promptly give to each Bank notice of all
legal or arbitral proceedings, and of all proceedings by or before any
governmental or regulatory authority or agency, and any material development in
respect of such legal or other proceedings, affecting the Company or any of its
Subsidiaries, except proceedings which, if adversely determined, would not have
a material adverse effect on the consolidated financial condition, operations,
business or prospects taken as a whole of the Company and its Consolidated
Subsidiaries.
9.03 Corporate Existence, Etc. The Company will, and will cause each of its
Subsidiaries to: preserve and maintain its corporate existence and all of its
material rights, privileges and franchises (provided that nothing in this
Section 9.03 shall prohibit any transaction expressly permitted under Section
9.05 hereof); comply with the requirements of all applicable laws, rules,
regulations and orders of governmental or regulatory authorities if failure to
comply with such requirements would materially and adversely affect the
consolidated financial condition, operations, business or prospects taken as a
whole of the Company and its Consolidated Subsidiaries; pay and discharge all
taxes, assessments and governmental charges or levies imposed on it or on its
income or profits or on any of its property prior to the date on which penalties
attach thereto, except for any such tax, assessment, charge or levy the payment
of which is being contested in good faith and by proper proceedings and against
which adequate reserves are being maintained; maintain all of its properties
used or useful in its business in good working order and condition, ordinary
wear and tear excepted; and permit representatives of any Bank or the Agent,
subject to at least two Business Days' advance notice (which notice shall not be
required at any time a Default shall be continuing) and during normal business
hours, to examine, copy and make extracts from its books and records, to inspect
its properties, and to discuss its business and affairs with its officers, all
to the extent reasonably requested by such Bank or the Agent (as the case may
be).
9.04 Insurance. The Company will, and will cause each of its Subsidiaries
to, keep insured by financially sound and reputable insurers all property of a
character usually insured by corporations engaged in the same or similar
business similarly situated against loss or damage of the kinds and in the
amounts customarily insured against by such corporations and carry such other
insurance as is usually carried by such corporations; provided that the Company
and any of its Subsidiaries may self-insure to the extent determined by
management to be consistent with prudent business practice.
9.05 Prohibition of Fundamental Changes. The Company will not, nor will it
permit any of its Subsidiaries to, enter into any transaction of merger or
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution). The Company will not, and will not
permit any of its Subsidiaries to, make any Acquisition (in one transaction or a
series of related transactions) in excess of $50,000,000. The Company will not,
and will not permit any of its Subsidiaries to, convey, sell, lease, transfer or
otherwise dispose of, in one transaction or a series of transactions, all or a
substantial part of its business or assets, whether now owned or hereafter
acquired (including, without limitation, receivables and leasehold interests,
but excluding (i) any inventory or other assets (including real property) sold
or disposed of in the ordinary course of business and (ii) obsolete or worn-out
property, tools or equipment no longer used or useful in its business).
Notwithstanding the foregoing provisions of this Section 9.05:
(a) any Subsidiary of the Company may be merged or consolidated with or
into: (i) the Company if the Company shall be the continuing or surviving
corporation or (ii) any other such Subsidiary; provided that if any such
transaction shall be between a Subsidiary and a Wholly-Owned Subsidiary, the
Wholly-Owned Subsidiary shall be the continuing or surviving corporation; and
(b) any such Subsidiary may sell, lease, transfer or otherwise dispose of
any or all of its assets (upon voluntary liquidation or otherwise) to the
Company or a Wholly-Owned Subsidiary of the Company.
9.06 Limitation on Liens. The Company will not, nor will it permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any
of its property, assets or revenues, whether now owned or hereafter acquired,
except:
(a) Liens imposed by any governmental authority for taxes, assessments or
charges not yet due or which are being contested in good faith and by
appropriate proceedings if adequate reserves with respect thereto are maintained
on the books of the Company or any of its Subsidiaries, as the case may be, in
accordance with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 30 days or which are being contested in good
faith and by appropriate proceedings;
(c) pledges or deposits under worker's compensation, unemployment insurance
and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(e) Liens on assets of corporations which become Subsidiaries of the
Company after the date of this Agreement, provided that such Liens are in
existence at the time the respective corporations become Subsidiaries of the
Company and were not created in anticipation thereof;
(f) Liens upon real property, fixtures and equipment (excluding equipment
that constitutes inventory) acquired after the date hereof (by purchase,
construction or otherwise) by the Company or any of its Subsidiaries;
(g) Liens upon the assets of the Company and its Subsidiaries in existence
on the date hereof; and
(h) any extension, renewal or replacement of the foregoing, provided,
however, that the Liens permitted hereunder shall not be spread to cover any
additional Indebtedness or property (other than a substitution of like
property).
9.07 Leverage Ratio. The Company will not permit the Leverage Ratio to
exceed 1.5 to 1.0.
9.08 Tangible Net Worth. The Company will not permit its Tangible Net Worth
to be on any date of determination thereof less than the sum of (x) $520,000,000
plus (y) 25% of the aggregate amount of Net Earnings for each quarterly period
occurring during the period commencing January 29,1 995 and ending on the date
that is the last day of the Company's fiscal quarter next preceding such date of
determination.
9.09 Current Ratio. The Company will not permit the ratio of consolidated
current assets of the Company and its Consolidated Subsidiaries to consolidated
current liabilities of the Company and its Consolidated Subsidiaries to be at
any time less than 1 to 1. For purposes hereof, the terms "current assets" and
"current liabilities" shall have the respective meanings assigned to them by
GAAP.
9.10 NOP/Interest Charges Ratio. The Company will not at any time permit
the NOP/Interest Charges Ratio to be less than 2.5 to 1.0.
9.11 Lines of Business. Neither the Company nor any of its Subsidiaries
shall engage in any substantial extent in any line or lines of business activity
other than the business of owning and operating retail stores.
9.12 Use of Proceeds. The Company will use the proceeds of the Loans
hereunder solely to refinance certain of the Indebtedness described in Schedule
I hereof and to finance the expansion of the Company's stores and for general
working capital purposes (in compliance with all applicable legal and regulatory
requirements); provided, that neither the Agent nor any Bank shall have any
responsibility as to the use of any of such proceeds.
9.13 Additional Guarantors. The Company will take such action, and will
cause each of its Subsidiaries to take such action, from time to time as shall
be necessary to ensure that all such Subsidiaries are Guarantors and, thereby,
"Obligors" hereunder. Without limiting the generality of the foregoing, in the
event that the Company or any of its Subsidiaries shall form any new Subsidiary,
which is a "Material Subsidiary" (as defined below), after the date hereof, the
Company or the respective Subsidiary will cause such new Subsidiary to become a
"Guarantor" (and, thereby, an "Obligor") hereunder pursuant to a written
instrument in form and substance satisfactory to each Bank and the Agent, and to
deliver such proof of corporate action, incumbency of officers, opinions of
counsel and other documents as is comparable to those delivered by each Obligor
pursuant to Section 7.01 hereof upon the making of the initial Loan hereunder or
as any Bank or the Agent shall have reasonably requested. For the purposes of
this Section 9.13, "Material Subsidiary" shall mean any Subsidiary of the
Company (a) whose assets equal 10% or more of the total assets of the Company
and its consolidated Subsidiaries, or (b) whose revenues equal 10% or more of
the total revenues of the Company and its consolidated Subsidiaries; in each
case, as of the end of the most recently completed fiscal year of the Company.
Section 10. Events of Default. If one or more of the following events
(herein called "Events of Default") shall occur and be continuing:
(a) The Company shall default in the payment when due of any principal of
any Loan; or the Company shall default in the payment when due of any interest
or any other amount payable by it hereunder and such default shall continue for
a period of two Business Days; or
(b) The Company or any of its Subsidiaries shall default in the payment
when due of any principal of or interest on any of its other Indebtedness
aggregating $5,000,000 or more; or any event specified in any note, agreement,
indenture or other document evidencing or relating to any such Indebtedness
shall occur if the effect of such event is to cause, or (with the giving of any
notice or the lapse of time or both) to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause, such Indebtedness to become due, or to be required to be prepaid in full
(whether by redemption, purchase or otherwise), prior to its stated maturity; or
(c) Any representation, warranty or certification made or deemed made
herein (or in any modification or supplement hereto) by the Company, or any
certificate furnished to any Bank or the Agent pursuant to the provisions hereof
(or thereof), shall prove to have been false or misleading as of the time made
or furnished in any material respect; or
(d) The Company shall default in the performance of any of its obligations
under Section 9.01(f), or any of Sections 9.03 through and including 9.12
hereof; or the Company shall default in the performance of any of its other
obligations in this Agreement and such default shall continue unremedied for a
period of thirty days after notice thereof to the Company by the Agent or any
Bank (through the Agent); or
(e) The Company or any of its Subsidiaries shall admit in writing its
inability to, or be generally unable to, pay its debts as such debts become due;
or
(f) The Company or any of its Subsidiaries shall (i) apply for or consent
to the appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of all or a substantial part of its property,
(ii) make a general assignment for the benefit of its creditors, (iii) commence
a voluntary case under the Bankruptcy Code (as now or hereafter in effect), (iv)
file a petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
readjustment of debts, (v) fail to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed against it in an
involuntary case under the Bankruptcy Code, or (vi) take any corporation action
for the purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without the application or
consent of the Company or any of its Subsidiaries, in any court of competent
jurisdiction, seeking (i) its liquidation, reorganization, dissolution or
winding-up, or the composition or readjustment of its debts, (ii) the
appointment of a trustee, receiver, custodian, liquidator or the like of the
Company or such Subsidiary or of all or any substantial part of its assets, or
(iii) similar relief in respect of the Company or such Subsidiary under any law
relating to bankruptcy, insolvency, reorganization, winding-up, or composition
or adjustment of debts, and such proceeding or case shall continue undismissed,
or an order, judgment or decree approving or ordering any of the foregoing shall
be entered and continue unstayed and in effect, for a period of 60 or more days;
or an order for relief against the Company or such Subsidiary shall be entered
in an involuntary case under the Bankruptcy Code; or
(h) A final judgment or judgments for the payment of money in excess of
$1,000,000 in the aggregate shall be rendered by a court or courts against the
Company and/or any of its Subsidiaries and the same shall not be discharged (or
provision shall not be made for such discharge), or a stay of execution thereof
shall not be procured, within 30 days from the date of entry thereof and the
Company or the relevant Subsidiary shall not, within said period of 30 days, or
such longer period during which execution of the same shall have been stayed,
appeal therefrom and cause the execution thereof to be stayed during such
appeal; or
(i) An event or condition specified in Section 9.01(e) hereof shall occur
or exist with respect to any Plan or Multiemployer Plan and, as a result of such
event or condition, together with all other such events or conditions, the
Company or any ERISA Affiliate shall incur or in the opinion of the Majority
Bank shall be reasonably likely to incur a liability to a Plan, a Multiemployer
Plan or PBGC (or any combination of the foregoing) which is, in the
determination of the Majority Banks, material in relation to the consolidated
financial condition, operations, business or prospects taken as a whole of the
Company and its Consolidated Subsidiaries; or
(j) During any period of 12 consecutive calendar months, individuals who
were directors of the Company on the first day of such period shall no longer
(other than by reason of death) constitute a majority of the board of directors
of the Company;
THEREUPON: (i) in the case of an Event of Default other than one referred to in
clause (f) or (g) of this Section 10 with respect to the Company, the Agent may
and, upon request of the Majority Banks, shall, by notice to the Company, cancel
the Commitments and/or declare the principal amount then outstanding of, and the
accrued interest on, the Loans and all other amounts payable by the Company
hereunder and under the Notes (including, without limitation, any amounts
payable under Section 5.05 hereof) to be forthwith due and payable, whereupon
such amounts shall be immediately due and payable without presentment, demand,
protest or other formalities of any kind, all of which are hereby expressly
waived by the Company; and (ii) in the case of the occurrence of an Event of
Default referred to in clause (f) or (g) of this Section 10 with respect to the
Company, the Commitments shall automatically be canceled and the principal
amount then outstanding of, and the accrued interest on, the Loans and all other
amounts payable by the Company hereunder and under the Notes (including, without
limitation, any amounts payable under Section 5.05 hereof) shall automatically
become immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by the
Company.
Section 11. The Agent.
11.01 Appointment, Powers and Immunities. Each Bank hereby irrevocably
appoints and authorizes the Agent to act as its agent hereunder with such powers
as are specifically delegated to the Agent by the terms of this Agreement,
together with such other powers as are reasonably incidental thereto. The Agent
(which term as used in this sentence and in Section 11.05 and the first sentence
of Section 11.06 hereof shall include reference to its affiliates and its own
and its affiliates' officers, directors, employees and agents): (a) shall have
no duties or responsibilities except those expressly set forth in this
Agreement, and shall not by reason of this Agreement be a trustee for any Bank;
(b) shall not be responsible to the Banks for any recitals, statements,
representations or warranties contained in this Agreement, or in any certificate
or other document referred to or provided for in, or received by any of them
under, this Agreement, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement, any Note or any other document
referred to or provided for herein or for any failure by the Company or any
other Person to perform any of its obligations hereunder or thereunder; (c)
except as otherwise expressly set forth herein, shall not be required to
initiate or conduct any litigation or collection proceedings hereunder; and (d)
shall not be responsible for any action taken or omitted to be taken by it
hereunder or under any other document or instrument referred to or provided for
herein or in connection herewith, except for its own gross negligence or willful
misconduct. The Agent may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith. The Agent may deem and treat the
payee of any Note as the holder thereof for all purposes hereof unless and until
a written notice of the assignment or transfer thereof shall have been filed
with the Agent, together with the written consent of the Company to such
assignment or transfer.
11.02 Reliance by Agent. The Agent shall be entitled to rely upon any
certification, notice or other communication (including any thereof by
telephone, telex, telegram or cable) believed by it to be genuine and correct
and to have been signed or sent by or on behalf of the proper Person or Persons,
and upon advice and statements of legal counsel, independent accountants and
other experts selected by the Agent. As to any matters not expressly provided
for by this Agreement, the Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder in accordance with instructions
signed by the Majority Banks, and such instructions of the Majority Banks and
any action taken or failure to act pursuant thereto shall be binding on all of
the Banks.
11.03 Defaults. The Agent shall not be deemed to have knowledge or notice
of the occurrence of a Default (other than the non-payment of principal of or
interest on Loans or of commitment fees) unless the Agent has received notice
from a Bank or the Company specifying such Default and stating that such notice
is a "Notice of Default". In the event that the Agent receives such a notice of
the occurrence of a Default, the Agent shall give prompt notice thereof to the
Bank (and shall give each Bank prompt notice of each such non-payment). The
Agent shall (subject to Section 11.07 hereof) take such action with respect to
such Default as shall be directed by the Majority Banks, provided that, unless
and until the Agent shall have received such directions, the Agent may (but
shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Default as it shall deem advisable in the best interest of
the Banks.
11.04 Rights as a Bank. With respect to its Commitment and the Loans made
by it, Chase (and any successor acting as Agent) in its capacity as a Bank
hereunder shall have the same rights and powers hereunder as any other Bank and
may exercise the same as though it were not acting as the Agent, and the term
"Bank" or "Banks" shall, unless the context otherwise indicates, include the
Agent in its individual capacity. Chase (and any successor acting as Agent) and
its affiliates may (without having to account therefor to any Bank) accept
deposits from, lend money to and generally engage in any kind of banking, trust
or other business with the Company (and any of its Subsidiaries or Affiliates)
as if it were not acting as the Agent, and Chase and its Subsidiaries or
Affiliates may accept fees and other consideration from the Company for services
in connection with this Agreement or otherwise without having to account for the
same to the Banks.
11.05 Indemnification. The Banks agree to indemnify the Agent (to the
extent not reimbursed under Section 12.03 hereof, but without limiting the
obligations of the Company under said Section 12.03), ratably in accordance with
their respective Commitments, for any and all liabilities obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of this
Agreement or any other documents contemplated by or referred to herein or the
transactions contemplated hereby (including, without limitation, the costs and
expenses which the Company is obligated to pay under Section 12.03 hereof but
excluding, unless a Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or of any such
other documents, provided that no Bank shall be liable for any of the foregoing
to the extent they arise from the gross negligence or willful misconduct of the
party to be indemnified.
11.06 Non-Reliance on Agent and other Banks. Each Bank agrees that it has,
independently and without reliance on the Agent or other Bank, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis of the Company and its Subsidiaries and decision to enter into this
Agreement and that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement. The Agent shall not be
required to keep itself informed as to the performance or observance by the
Company of this Agreement or any other document referred to or provided for
herein or to inspect the properties or books of the Company or any of its
Subsidiaries. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Bank with any
credit or other information concerning the affairs, financial condition or
business of the Company or any of its Subsidiaries (or any of their affiliates)
which may come into the possession of the Agent or any of its affiliates.
11.07 Failure to Act. Except for action expressly required of the Agent
hereunder, the Agent shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall receive further assurances to its
satisfaction from the Banks of their indemnification obligations under Section
11.05 hereof against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action.
11.08 Resignation or Removal of Agent. Subject to the appointment and
acceptance of a successor Agent as provided below, the Agent may resign at any
time by giving notice thereof to the Banks and the Company, and the Agent may be
removed at any time without cause by the Majority Banks. Upon any such
resignation or removal, the Majority Banks shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Majority Banks and shall have accepted such appointment within 30 days after the
retiring Agent's giving of notice of resignation or the Majority Banks' removal
of the retiring Agent, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent, which shall be a bank with a combined capital and
surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations hereunder. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Section 11 shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as the Agent.
Section 12. Miscellaneous.
12.01 Waiver. No failure on the part of the Agent or any Bank to exercise
and no delay in exercising, and no course of dealing with respect to, any right,
power or privilege under this Agreement or any Note shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege under this Agreement or any Note preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
12.02 Notices. All notices and other communications provided for herein
(including, without limitation, any modifications of, or waivers or consents
under, this Agreement) shall be given or made by telex, telecopy, telegraph,
cable or in writing (or, with respect to notices given pursuant to Section 2.03
hereof, by telephone, confirmed in writing by telex by the close of business on
the day the notice is given) and telexed, telecopied, telegraphed, cabled,
mailed or delivered (or telephoned, as the case may be) to the intended
recipient at the "Address for Notices" specified below its name on the signature
pages hereof; or, as to any party, at such other address as shall be designated
by such party in a notice to each other party. Except as otherwise provided in
this Agreement, all such communications shall be deemed to have been duly given
when transmitted by telex or telecopier, delivered to the telegraph or cable
office of personally delivered or, in the case of a mailed notice, upon receipt,
in each case given or addressed as aforesaid.
12.03 Expenses, Etc. The Company agrees to pay or reimburse each of the
Banks and the Agent for paying: (a) all reasonable out-of-pocket costs and
expenses for the Agent (including, without limitation, the reasonable fees and
expenses of external counsel to the Agent and costs allocated by the Agent's
internal legal department (which, for the purposes of this Section 12.03(a),
shall constitute out-of-pocket expenses), in connection with (i) the
negotiation, preparation, execution and delivery of this Agreement and the Notes
and the making of the Loans hereunder and (ii) any amendment, modification or
waiver of any of the terms of this Agreement or any of the Notes; (b) all
reasonable costs and expenses of the Banks and the Agent (including reasonable
counsels' fees and costs allocated by their respective internal legal
departments) in connection with any Default and any enforcement or collection
proceedings resulting therefrom; and (c) all transfer, stamp, documentary or
other similar taxes, assessments or charges levied by any governmental or
revenue authority in respect of this Agreement, any of the Notes or any other
document referred to herein.
12.04 Amendments, Etc. Except as otherwise expressly provided in this
Agreement, any provision of this Agreement may be amended or modified only by an
instrument in writing signed by the Company, the Guarantors, the Agent and the
Majority Banks, or by the Company, the Guarantors and the Agent acting with the
consent of the Majority Banks, and any provision of this Agreement may be waived
by the Majority Banks or by the Agent acting with the consent of the Majority
Banks; provided that no amendment, modification or waiver shall, unless by an
instrument signed by all of the Banks or by the Agent acting with the consent of
all of the Banks: (i) increase or extend the term, or extend the time or waive
any requirement for the reduction or termination, of the Commitments, (ii)
extend any date fixed for the payment of principal of or interest on any Loan,
(iii) reduce the amount of any payment of principal thereof or the rate at which
interest is payable thereon or any fee is payable hereunder, (iv) alter the
terms of this Section 12.04, (v) amend the definition of the term "Majority
Banks", (vi) waive any of the conditions precedent set forth in Section 7 hereof
or (vii) alter the form of Exhibit E hereto; and provided, further, that any
amendment of Section 11 hereof, or which increases the obligations of the Agent
hereunder, shall require the consent of the Agent.
12.05 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
12.06 Assignments and Participations.
(a) The Company may not assign its rights or obligations hereunder or under
the Notes without the prior consent of all of the Banks and the Agent.
(b) Except as otherwise provided in Section 2.10(b) hereof, no Bank may
assign any of its Loans, its Notes or its Commitment without the prior consent
of the Company and the Agent; provided that: (i) without the consent of the
Company or the Agent, any Bank may assign to another Bank all or (subject to the
further clauses below) any portion of its Commitment; (ii) any such partial
assignment shall be in multiples of $5,000,000; and (iii) such assigning Bank
shall also simultaneously assign to such assignee Bank the same proportion of
each of its Loans then outstanding (together with the same proportion of its
Notes then outstanding). Upon written notice to the Company and the Agent of an
assignment permitted by the preceding sentence (which notice shall identify the
assignee Bank, the amount of the assigning Bank's Commitment and Loans assigned
in detail reasonably satisfactory to the Agent) and upon the effectiveness of
any assignment consented to by the Company and the Agent, the assignee shall
have, to the extent of such assignment (unless otherwise provided in such
assignment with the consent of the Company and the Agent), the obligations,
rights and benefits of a Bank hereunder holding the Commitment and Loans (or
portions thereof) assigned to it (in addition to the Commitment and Loans, if
any, theretofore held by such assignee) and the assigning Bank shall, to the
extent of such assignment, be released from the Commitment (or portions thereof)
so assigned.
(c) A Bank may sell or agree to sell to one or more other Persons a
participation in all or any part of any Loan held by it or Loans made or to be
made by it, in which event each such participant shall be entitled to the rights
and benefits of the provisions of Section 9.01(g) hereof with respect to its
participation in such Loan as if (and the Company shall be directly obligated to
such participant under such provisions as if) such participant were a "Bank" for
purposes of said Section, but shall not have any other rights or benefits under
this Agreement or any Note (the participant's rights against such Bank in
respect of such participation to be those set forth in the agreement (the
"Participation Agreement") executed by such Bank in favor of the participant).
All amounts payable by the Company to any Bank under Section 5 hereof shall be
determined as if such Bank had not sold or agreed to sell any participations in
such Loan and as if such Bank were funding all of such Loan in the same way that
it is funding the portion of such Loan in which no participations have been
sold. In no event shall a Bank that sells a participation be obligated to the
participant under the Participation Agreement to take or refrain from taking any
action hereunder or under such Bank's Note except that such Bank may agree in
the Participation Agreement that it will not, without the consent of the
participant, agree to (i) the increase or extension of the term, or the
extension of the time or waiver of any requirement for the reduction or
termination, of such Bank's Commitment, (ii) the extension of any date fixed for
the payment of principal of or interest on the related Loan or Loans or any
portion of any fees payable to the participant, (iii) the reduction of any
payment of principal thereof, or (iv) the reduction of the rate at which either
interest is payable thereon or (if the participant is entitled to any part
thereof) commitment fee is payable hereunder to a level below the rate at which
the participant is entitled to receive interest or commitment fee (as the case
may be) in respect of such participation.
(d) A Bank may furnish any information concerning the Company or any of its
Subsidiaries in the possession of such Bank from time to time to assignee and
participants (including prospective assignees and participants), subject,
however, to the provisions of Section 12.11 hereof.
(e) In addition to the assignments and participations permitted under this
Section 12.06, any Bank may assign and pledge all or any portion of its Loans
and Notes to (i) any affiliate of such Bank or (ii) any Federal Reserve Bank as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank. No such assignment shall release the assigning Bank from its obligations
hereunder.
12.07 Survival. The obligations of the Company under Section 5.01, 5.05 and
12.03 hereof shall survive the repayment of the Loans and the termination of the
Commitments.
12.08 Captions. The table of contents and captions and section headings
appearing herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.
12.09 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
12.10 Governing Law; Submission to Jurisdiction; Wavier of Jury Trial. THIS
AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK. EACH OBLIGOR HEREBY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY
FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OBLIGOR IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN
SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OBLIGOR, THE AGENT AND THE BANKS
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
12.11 Confidentiality. Each Bank and the Agent agrees (on behalf of itself
and each of its affiliates, directors, officers, employees and representatives)
to use reasonable precautions to keep confidential, in accordance with their
customary procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices, any non-public information
supplied to it by the Company pursuant to this Agreement which is identified by
the Company as being confidential at the time the same is delivered to the Banks
or the Agent, provided that nothing herein shall limit the disclosure of any
such information (i) to the extent required by statute, rule, regulation or
judicial process, (ii) to counsel for any of the Banks or the Agent, (iii) to
bank examiners, auditors or accountants, (iv) to the Agent or any other Bank (or
an Affiliate of such Bank), (v) in connection with any litigation to which any
one or more of the Banks is a party or (vi) to any assignee or participant (or
prospective assignee or participant) so long as such assignee or participant (or
prospective assignee or participant) first executes and delivers to the
respective Bank a Confidentiality Agreement in substantially the form of Exhibit
F hereto; and provided finally that in no event shall any Bank or the Agent be
obligated or required to return any materials furnished by the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
THE PEP BOYS - MANNY, MOE & XXXX
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Title: Senior Vice President and
Chief Financial Officer
Address for Notices:
0000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Telecopier No.:(000) 000-0000
Telephone No.:(000) 000-0000
Attention:Xxxxxxx X. Xxxxxx
Senior Vice President and
Chief Financial Officer
With a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
One Citicorp Center
000 Xxxx 00x Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
THE PEP BOYS - MANNY, MOE & XXXX
OF CALIFORNIA, as a Guarantor
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Title: Senior Vice President and
Chief Financial Officer
Address for Notices:
0000 X. Xxxxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopier No.:(000) 000-0000
Telephone No.:(000) 000-0000
Attention:Xxxxxxx X. Xxxxxx
Senior Vice President and
Chief Financial Officer
PBY CORPORATION, as a Guarantor
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Title: Senior Vice President and
Chief Financial Officer
Address for Notices:
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention:Xxxxxxx X. Xxxxxx
Senior Vice President and
Chief Financial Officer
THE PEP BOYS - MANNY, MOE & XXXX
OF DELAWARE, INC., as a Guarantor
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Title: Senior Vice President and
Chief Financial Officer
Address for Notices:
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention:Xxxxxxx X. Xxxxxx
Senior Vice President
Chief Financial Officer
THE PEP BOYS - MANNY, MOE & XXXX
OF PUERTO RICO, INC., as a Guarantor
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Title: Senior Vice President and
Chief Financial Officer
Address for Notices:
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention:Xxxxxxx X. Xxxxxx
Senior Vice President and
Chief Financial Officer
COLCHESTER INSURANCE COMPANY,
as a Guarantor
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Title: Senior Vice President and
Chief Financial Officer
Address for Notices:
0 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention:Xxxxxxx X. Xxxxxx
Senior Vice President and
Chief Financial Officer
CARRUS SUPPLY CORPORATION,
as a Guarantor
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Title: Senior Vice President and
Chief Financial Officer
Address for Notices:
00 Xxxxxxxxxx Xxxxxx, Xxxxx X-000
Xxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention:Xxxxxxx X. Xxxxxx
Senior Vice President and
Chief Financial Officer
Commitment THE CHASE MANHATTAN BANK
$25,000,000 (NATIONAL ASSOCIATION)
By /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Title: Vice President
Lending Office for All Loans:
The Chase Manhattan Bank
(National Association)
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices:
The Chase Manhattan Bank
(National Association)
x/x Xxxxx Xxxxxxxx Xxxxxxxxx Xxxxxxxx
Xxxxxxx Xxxxx
000 Xxxxxxx Xxxxxx - 0xx Xxxxx
Xxxxxxxxx Xxxxxxx, Xxx Xxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxx Van Besien
Vice President
Commitment CORESTATES BANK, as successor in
$25,000,000 interest to Philadelphia National Bank
By /s/ [ILLEGIBLE]
----------------------------------
Title: Vice President
Lending Office for All Loans:
CoreStates Bank
Eastern Corporate
0000 Xxxxxxxx Xxxxxx
F.C. 1-8-3-16
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000
Address for Notices for Business/Credit Matters:
CoreStates Bank
0000 Xxxxxxxx Xxxxxx
F.C. 1-8-3-16
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000
Telecopier No.:(000) 000-0000
Telephone No.:(000) 000-0000
Attention:Xxxxx Xxxxxxxx
Vice President
Address for Notices for Administrative/Operations
Matters:
CoreStates Bank
0000 Xxxxxxxx Xxxxxx
F.C. 1-8-3-16
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000
Telecopier No.:(000) 000-0000
Telephone No.:(000) 000-0000
Attention:Xxxxxx Xxxxxxx
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Terminating
Bank
By_____________________________________
Title:
Commitment BANK OF AMERICA ILLINOIS, as successor in $25,000,000
interest to Continental Bank
By /s/ [ILLEGIBLE]
----------------------------------
Title: Managing Director
Lending Office for Syndicated Loans:
Bank of America Illinois
c/o 333 X. Xxxxxxx Avenue, Dept. #5583
Xxx Xxxxxxx, XX 00000
Lending Office for Money Market Loans:
Bank of America N.T. % S.A.
000 Xxxxxxxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxxxx, XX 00000
Address for Notices for Business/Credit Matters (not funding
requests):
Bank of America Illinois
c/o 000 X. Xxxxxx Xxxxxx, Xxxx. #0000, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention:Xxxxxx X. Xxxxxx
Address for Notices for Administrative/Operations
Matters,
including Fund Requests :
Bank of America Illinois
c/o 333 X. Xxxxxxx Avenue, Dept. #5583
Xxx Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention:Xxxxxx Xxxxxxx
FIRST INTERSTATE BANK OF ARIZONA, N.A.,
as a Terminating Bank
By /s/ [ILLEGIBLE]
----------------------------------
Title: Vice President
Commitment NATIONSBANK, N.A. (CAROLINAS)
$25,000,000
By /s/ [ILLEGIBLE]
----------------------------------
Title: Vice President
Lending Office for All Loans:
NationsBank , N.A. (Carolinas)
000 Xxxxx Xxxxx Xxxxxx, 0xx Floor
NC1-007-8-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Address for Notices:
NationsBank , N.A. (Carolinas)
000 Xxxxx Xxxxx Xxxxxx, 0xx Floor
XX0-000-0-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telecopier No.:(000) 000-0000
Telephone No.:(000) 000-0000
Attention:Xxxx Xxxxxx
Senior Vice President
Commitment TRUST COMPANY BANK, ATLANTA
$15,000,000
By /s/ Xxxxxxxxx X. Xxxx
----------------------------------
Title: Assistant Vice President
Lending Office for All Loans:
Trust Company Bank, Atlanta
00 Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Address for Notices for Business/Credit Matters:
Trust Company Bank, Atlanta
00 Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Telecopier No.:(000 ) 000-0000
Telephone No.:(000) 000-0000
Attention:Xxxxxxxxx X. Xxxx
Assistant Vice President
Address for Notices for Administrative/Operations
Matters:
Trust Company Bank, Atlanta
00 Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention:Xxxxxx Judge
THE FUJI BANK, LTD., as a Terminating Bank
By /s/ Xxxx Xxxxxx
----------------------------------
Title: Vice President and Manager
Commitment FIRST FIDELITY BANK, N.A.
$15,000,000
By /s/ X. Xxxxxxxx
----------------------------------
Title: Vice President
Lending Office for All Loans:
First Fidelity Bank, X.X.
Xxxxx & Chestnut Streets, 6th Fl.
Xxxxxxxxxxxx, XX 00000
Address for Notices for Business/Credit Matters:
First Fidelity Bank, N.A.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention:Xxxxxx X. Xxxxxxxx
Vice President
Address for Notices for Administrative/Operations
Matters:
First Fidelity Bank, N.A.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention:Xxxxx X. Xxxxx
Commitment PNC BANK, N.A.
$25,000,000
By /s/ Xxxxxx X. Xxxxxx
----------------------------------
Title: Vice President
Lending Office for All Loans:
PNC Bank, N.A.
000 X. Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Address for Notices for Business/Credit Matters:
PNC Bank, N.A.
000 X. Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.:(000) 000-0000
Attention:Xxxxxx X. Xxxxxx
Vice President
Address for Notices for Administrative/Operations
Matters:
PNC Bank, N.A.
000 X. Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.:(000) 000-0000
Attention:Xxxxx Xxxxxxx
Commitment NATWEST BANK, N.A., formerly known as
$25,000,000 National Westminster Bank
By /s/ [ILLEGIBLE]
----------------------------------
Title: Vice President
Lending Office for All Loans:
00 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Address for Notices for Business/Credit Matters:
NatWest Bank, N.A.
Xxx Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Telecopier No.:(000) 000-0000
Telephone No.:(000) 000-0000
Attention:Xxxxxxx X. Xxxx
Vice President
Address for Notices for Administrative/Operations
Matters:
Natwest Bank, N.A.
00 Xxxxx 00 Xxxx
Xxxxxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention:Xxxxxx Xxxxxxxxxxxxxxx
Commitment UNION BANK
$10,000,000
By /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Title: Vice President
Lending Office for All Loans:
Union Bank
000 Xxxxxxxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Address for Notices for Business/Credit Matters:
Union Bank
000 Xxxxxxxxxx Xxxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention:Xxxxxxx X. Xxxxxxx,
Vice President
With a copy to:
Union Bank
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopier No.:(000) 000-0000
Telephone No.:(000) 000-0000
Attention:Xxx Xxxxxx, Vice President
Address for Notices for Administrative/Operations
Matters:
Union Bank
000 Xxxxxxxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention:Xxxx XxXxxxxx
Commitment CREDIT SUISSE
$10,000,000
By /s/ Xxxx X. Xxxxxxxxxx
----------------------------------
Title: Associate
By /s/ Xxxxxx X. Xxxxx
----------------------------------
Title: Associate
Lending Office for All Loans:
Credit Suisse
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices for Business/Credit Matters:
Credit Suisse
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention:Xxxxxx X. Xxxxxx
Vice President
Address for Notices for Administrative/Operations
Matters:
Credit Suisse
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention:Xxxxxx XxXxxxx
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION),
as Agent
By_____________________________________
Title:
Address for Notices to Chase as Agent:
The Chase Manhattan Bank
(National Association)
4 Chase Metrotech Centerc, 13th Fl.
Xxxxxxxx, Xxx Xxxx 00000
Telecopier No.:(000) 000-0000
Telephone No.:(000) 000-0000
Attention:New York Agency Office
Xxxxx Xxxxxxx
PRICING SCHEDULE
Each of the "Applicable Margin", "Commitment Fee Rate" and "Facility Fee Rate"
means, for any day, the per annum rates set forth below in the column under such
term and in the row corresponding to the "Debt to Capital Ratio" that exists on
such day.
Debt to Capital Applicable Commitment Facility
Ratio Eurodollar Fee Rate Fee Rate
Loans
--------------- ---------- ---------- --------
<0.30 0.125% 0.000% 0.125%
>0.30 but 0.225% 0.000% 0.125%
LTE 0.35
<0.35 but 0.325% 0.025% 0.125%
LTE 0.40
>0.40 but 0.400% 0.050% 0.150%
LTE 0.45
>.045 0.625% 0.050% 0.200%
SCHEDULE II
SUBSIDIARIES OF THE PEP BOYS - MANNY, MOE & XXXX
MARCH, 30, 1995
NAME WHERE % OF SHARES
INCORPORATED WHERE INCORPORATED
------------ ------------ -------------------------
OWNED BY COMPANY
THE PEP BOYS-MANNY, MOE & CALIFORNIA 100% XXXX OF CALIFORNIA
0000 X. XXXXXXXXXX XXXX.
XXX XXXXXXX, XX 00000
PEP BOYS - MANNY, MOE & XXXX DELAWARE 100% OF DELAWARE, INC.
0000 XXXX XXXXXXXXX XXXXXX
XXXXXXXXXXXX, XX 00000
PEP BOYS - MANNY, MOE & XXXX DELAWARE 100% OF PUERTO RICO, INC.
0000 XXXX XXXXXXXXX XXXXXX
XXXXXXXXXXXX, XX 00000
COLCHESTER INSURANCE COMPANY VERMONT 100% 0 XXXXXXXXXX XXXXXX
XXXXXXXXXX, XX 00000
PBY CORPORATION DELAWARE 100% SUITE 1300
0000 XXXXX XXXXXX XXXXXX
XXXXXXXXXX, XX 00000
MMJ CORPORATION DELAWARE 100%
00 XXXXXXXXXX XXXXXX
XXXXX X-000
XXXXX, XX 00000
CARRUS SUPPLY CORPORATION DELAWARE 100% 00 XXXXXXXXXX XXXXXX
XXXXX X-000
XXXXX, XX 00000
Exhibit A-1
[Form of Note for Syndicated Loans]
PROMISSORY NOTE
$_____________ April 21, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, THE PEP BOYS - MANNY, MOE & XXXX, a Pennsylvania corporation
(the "Company"), hereby promises to pay to ____________________________ (the
"Bank"), for account of its respective Applicable Lending Offices provided for
by the Credit Agreement referred to below, at the principal office of The Chase
Manhattan Bank (National Association) at 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, the principal sum of ____________ Dollars (or such lesser amount as
shall equal the aggregate unpaid principal under the Credit Agreement), in
lawful money of the United States of America and in immediately available funds,
on the dates and in the principal amounts provided in the Credit Agreement, and
to pay interest on the unpaid principal amount of each such Syndicated Loan, at
such office, in like money and funds, for the period commencing on the date of
such Syndicated Loan until such Syndicated Loan shall be paid in full, at the
rates per annum and on the dates provided in the Credit Agreement. The date,
amount, type, interest rate and maturity date of each Syndicated Loan made by
the Bank to the Company, and each payment made on account of the principal
thereof, shall be recorded by the Bank on its books and, prior to any transfer
of this Note, endorsed by the Bank on the schedule attached hereto or any
continuation thereof.
This Note is one of the Notes referred to in the Amended and Restated Credit
Agreement (as modified and supplemented and in effect from time to time, the
"Credit Agreement") dated as of April 21, 1995 between the Company, the
Guarantors named therein, the banks named therein (including the Bank) and The
Chase Manhattan Bank (National Association), as Agent, and evidences Syndicated
Loans made by the Bank thereunder. Capitalized terms used in this Note have the
respective meanings assigned to them in the Credit Agreement. The Credit
Agreement provides for the acceleration of the maturity of this Note upon the
occurrence of certain events and for prepayments of Loans upon the terms and
conditions specified therein.
Except as permitted by Section 12.06(b) of the Credit Agreement, this Note may
not be assigned by the Bank to any other Person. THIS NOTE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
THE PEP BOYS - MANNY, MOE & XXXX
By______________________________________
Title:
SCHEDULE OF LOANS
This Note evidences Loans made under the within-described Credit Agreement to
the Company, on the dates, in the principal amounts, of the types, bearing
interest at the rates and maturing on the dates set forth below, subject to the
payments and prepayments of principal set forth below:
EXHIBIT A-2
[Form of Note for Money Market Loans]
PROMISSORY NOTE
April 21, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, THE PEP BOYS - MANNY, MOE & XXXX, a Pennsylvania corporation
(the "Company"), hereby promises to pay to ____________________________ (the
"Bank"), for account of its respective Applicable Lending Offices provided for
by the Credit Agreement referred to below, at the principal office of The Chase
Manhattan Bank (National Association) at 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, the aggregate unpaid principal amount of the Money Market Loans made
by the Bank to the Company under the Credit Agreement, in lawful money of the
United States of America and in immediately available funds, on the dates and in
the principal amounts provided in the Credit Agreement, and to pay interest on
the unpaid principal amount of each such Money Market Loan, at such office, in
like money and funds, for the period commencing on the date of such Money Market
Loan until such Money Market Loan shall be paid in full, at the rates per annum
and on the dates provided in the Credit Agreement. The date, amount, type,
interest rate and maturity date of each Money Market Loan made by the Bank to
the Company, and each payment made on account of the principal thereof, shall be
recorded by the Bank on its books and, prior to any transfer of this Note,
endorsed by the Bank on the schedule attached hereto or any continuation
thereof.
This Note is one of the Notes referred to in the Amended and Restated Credit
Agreement (as modified and supplemented and in effect from time to time, the
"Credit Agreement") dated as of April 21, 1995 between the Company, the
Guarantors named therein, the banks named therein (including the Bank) and The
Chase Manhattan Bank (National Association), as Agent, and evidences Money
Market Loans made by the Bank thereunder. Capitalized terms used in this Note
have the respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of this Note
upon the occurrence of certain events and for prepayments of Loans upon the
terms and conditions specified therein.
Except as permitted by Section 12.06(b) of the Credit Agreement, this Note may
not be assigned by the Bank to any other Person.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
THE PEP BOYS - MANNY, MOE & XXXX
By___________________________________
Title:
SCHEDULE OF LOANS
This Note evidences Loans made under the within-described Credit Agreement to
the Company, on the dates, in the principal amounts, of the types, bearing
interest at the rates and maturing on the dates set forth below, subject to the
payments and prepayments of principal set forth below:
Exhibit A
FOREIGN QUALIFICATIONS
The Pep Boys - Manny, Moe & Xxxx
Alabama Kentucky Ohio
Arkansas Louisiana Oklahoma
Colorado Maryland Pennsylvania
Delaware Massachusetts Rhode Island
District of Columbia Missouri South Carolina
Florida New Jersey Tennessee
Georgia New York Texas
Indiana North Carolina Virginia
The Pep Boys - Manny, Moe & Xxxx of California
Arizona Kansas Utah
California Nevada New Mexico
Illinois Texas
The Pep Boys - Manny, Moe & Xxxx of Delaware, Inc.
[to come based on asset transfers]
Exhibit B
THE PEP BOYS - MANNY, MOE & XXXX
Secretary's Certificate
I, Xxxxxxxxx X. Xxxxxxxx, Secretary of The Pep Boys - Manny, Moe & Xxxx, a
Pennsylvania corporation (the "Company"), DO HEREBY CERTIFY that set forth below
is a complete and accurate list of the jurisdictions in which the property
owned, leased or operated or the business conducted by the Company or any of its
subsidiaries is material to the Company and its subsidiaries, taken as a whole:
The Pep Boys - Manny, Moe & Xxxx
Alabama Kentucky Ohio
Arkansas Louisiana Oklahoma
Colorado Maryland Pennsylvania
Delaware Massachusetts Rhode Island
District of Columbia Missouri South Carolina
Florida New Jersey Tennessee
Georgia New York Texas
Indiana North Carolina Virginia
The Pep Boys - Manny, Moe & Xxxx of California
Arizona Kansas Utah
California Nevada New Mexico
Illinois Texas
The Pep Boys - Manny, Moe & Xxxx of Delaware, Inc.
[to come based on asset transfers]
IN WITNESS WHEREOF, I have executed this certificate as of this ___ day of
April, 1995.
THE PEP BOYS - MANNY, MOE & XXXX
BY:
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Secretary
EXHIBIT C
[Form of Money Market Quote Request]
[Date]
To: The Chase Manhattan Bank, N.A.,
as Agent
From: The Pep Boys - Manny, Moe & Xxxx
Re: Money Market Quote Request
Pursuant to Section 2.03 of the Amended and Restated Credit Agreement (the
"Credit Agreement") dated as of April 21, 1995 between The Pep Boys - Manny, Moe
& Xxxx, the Guarantors named therein, the Banks named therein and The Chase
Manhattan Bank, N.A., Agent, we hereby give notice that we request Money Market
Quotes for the following proposed Money Market Borrowing(s):
Borrowing Quotation Interest
Date Date 1/ Amount 2/ Type 3/ Period 4/
Terms used herein have the meanings assigned to them in the Credit Agreement.
The Pep Boys - Manny, Moe & Xxxx
By______________________________
Title:
--------------
*All numbered footnotes appear on the last page of this
Exhibit.______________
1/ For use if a Money Market Rate in a Set Rate Auction is requested to be
submitted before the Borrowing Date.
2/ Each amount must be $10,000,000 or a larger multiple of $1,000,000.
3/ Insert either "Margin" (in the case of LIBOR Market Loans) or "Rate" (in the
case of Set Rate Loans).
4/ 1, 2, 3 or 6 months, in the case of a LIBOR Market Loan or, in the case of a
Set Rate Loan, a period of up to 180 days after the making of such Set Rate Loan
and ending on a Business Day.
EXHIBIT D
[Form of Money Market Quote]
The Chase Manhattan Bank, N.A., as Agent
00 Xxxxxxx Xxxxxx -- 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Money Market Quote to
The Pep Boys - Manny, Moe & Xxxx (the "Borrower")
This Money Market Quote is given in accordance with Section 2.03(c) of the
Amended and Restated Credit Agreement (the "Credit Agreement") dated as of April
21, 1995 between The Pep Boys - Manny, Moe & Xxxx, the Guarantors named therein,
the Banks named therein and The Chase Manhattan Bank, N.A., as Agent. Terms
defined in the Credit Agreement are used herein as defined therein.
In response to the Borrower's invitation dated _________, 19__, we hereby make
the following Money Market Quote(s) on the following terms: 1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Borrowing Quotation Interest
Date Date 1/ Amount 2/ Type 3/ Period 4/ Rate 5/
---------------
*All number footnotes appear on the last page of this Exhibit.
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit Agreement,
irrevocably obligate(s) us to make the Money Market Loan(s) for which any
offer(s) [is] [are] accepted, in whole or in part (subject to the third sentence
of Section 2.03(e) of the Credit Agreement).
Very truly yours,
[Name of Bank]
Dated: By:_____________________________
Authorized Officer
-----------------
1/ As specified in the related Money Market Quote Request
2/ The principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for at least $5,000,000 or a
larger multiple of $1,000,000.
3/ Indicate "Margin" (in the case of LIBOR Market Loans) or "Rate" (in the case
of Set Rate Loans).
4/ 1, 2, 3 or 6 months in the case of a LIBOR Market Loan or, in the case of a
Set Rate Loan, a period of up to 180 days after the making of such Set Rate Loan
and ending on a Business Day, as specified in the related Money Market Quote
Request.
5/ For a LIBOR Market Loan, specify margin over or under the London interbank
offered rate determined for the applicable Interest Period. Specify percentage
(rounded to the nearest 1/10,000 of 1%) and specify whether "PLUS" or "MINUS".
For a Set Rate Loan, specify rate of interest per annum (rounded to the nearest
1/10,000 of 1%).
EXHIBIT E
[Form of Request for Extension of Commitment Termination Date]
[Date]
To the Banks Party to the credit
Agreement Referred to Below
We hereby request an extension of the Commitment Termination Date
currently specified in the definition of "Commitment Termination Date" in
Section 1.01 of the Amended and Restated Credit Agreement dated as of April 21,
1995 (as amended) between the undersigned, the Guarantors party thereto (the
"Guarantors"), the banks party thereto (the "Banks") and The Chase Manhattan
Bank (National Association) to April 21, 199_ (the "New Commitment Termination
Date"). Upon the Agent's receipt of a counterpart of this letter by each Bank
and each Guarantor indicating its consent to this request, the "Commitment
Termination Date" specified in the definition thereof in Section 1.01 of such
Credit Agreement shall be the New Commitment Termination Date.
THE PEP BOYS - MANNY, MOE & XXXX
By______________________________
Title:
[GUARANTOR A]
By______________________________
Title:
Consented:
[BANK A]
By_________________________________
Title:
THE CHASE MANHATTAN BANK, as Agent
By__________________________________
Title:
EXHIBIT F
[Form of Confidentiality Agreement]
[Date]
CONFIDENTIALITY AGREEMENT
[Insert Name and
Address of Prospective
Participant or Assignee]
Re: Amended and Restated Credit Agreement dated as of April 21, 1995
between The Pep Boys - Manny, Moe & Xxxx, the Guarantors party thereto, the
banks party thereto, and The Chase Manhattan Bank (National Association), as
Agent.
Dear__________:
As a Bank party to the above-referenced Amended and Restated Credit
Agreement (the "Credit Agreement"), we have agreed with The Pep Boys -
Manny, Moe & Xxxx (the "Company") pursuant to Section 12.11 of the Credit
Agreement to use reasonable precautions to keep confidential, except as
otherwise provided therein, all non-public information identified by the Company
as being confidential at the time same is delivered to us pursuant to the Credit
Agreement.
As provided in said Section 12.11, we are permitted to provide you,
as a prospective [holder of a participation in the Loans (as defined in the
Credit Agreement)] [assignee Bank], with certain of such non-public information
subject to the execution and delivery by you, prior to receiving such non-public
information, of a Confidentiality Agreement in this form. Such information will
not be made available to you until your execution and return to us of this
Confidentiality Agreement.
Accordingly, in consideration of the foregoing, you agree (on behalf
of yourself and each of your affiliates, directors, officers, employees and
representatives) that (A) such information will not be used by you except in
connection with the proposed [participation] [assignment] mentioned above and
(B) you shall use reasonable precautions, in accordance with your customary
procedures for handling confidential information and in accordance with safe and
sound banking practices, to keep such information confidential, provided that
nothing herein shall limit the disclosure of any such information (i) to the
extent required by statute, rule, regulation or judicial process, (ii) to your
counsel or to counsel for any of the Banks or the Agent, (iii) to bank
examiners, auditors or accountants, (iv) to the Agent or any other Bank, (v) in
connection with any litigation to which you or any one or more of the Banks is a
party; provided, further, that in no event shall you be obligated to return any
materials furnished to you pursuant to this Confidentiality Agreement.
Would you please indicate your agreement to the foregoing by signing
at the place provided below the enclosed copy of this Confidentiality Agreement.
Very truly yours,
[Insert Name of Bank]
By:________________________
Title:
The foregoing is agreed to as of the date of this letter.
[Insert name of prospective
participant or assignee]
By:_______________________
