Exhibit 10.1
---------------------------------------------------------------
XXXXXX & XXXXX, INC.
and
SUBSIDIARY GUARANTORS
-----------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of November 18, 1997
------------------------------
$850,000,000
------------------------------
THE CHASE MANHATTAN BANK,
as Administrative Agent
CHASE SECURITIES INC.,
As Arranger
CIBC INC.,
as Syndication Agent and Co-Arranger
and
ING (U.S.) CAPITAL CORPORATION,
as Documentation Agent and Co-Arranger
---------------------------------------------------------------
Exhibit 10.1
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it
is attached but is inserted for convenience of reference only.
Page
Section 1. Definitions and Accounting Matters..................................................................-1-
1.01 Certain Defined Terms............................................................................-1-
1.02 Accounting Terms and Determinations.............................................................-17-
1.03 Types...........................................................................................-18-
Section 2. Commitments, Loans, Notes and Prepayments..........................................................-18-
2.01 Loans...........................................................................................-18-
2.02 Borrowings of Loans.............................................................................-18-
2.03 Letters of Credit...............................................................................-19-
2.04 Changes of Commitments..........................................................................-23-
2.05 Commitment Fees; Excess Usage Fee...............................................................-23-
2.06 Lending Offices.................................................................................-23-
2.07 Several Obligations; Remedies Independent.......................................................-24-
2.08 Notes...........................................................................................-24-
2.09 Optional Prepayments and Conversions or Continuations of Loans..................................-24-
2.10 Mandatory Prepayments...........................................................................-25-
Section 3. Payments of Principal and Interest.................................................................-25-
3.01 Repayment of Loans..............................................................................-25-
3.02 Interest........................................................................................-25-
Section 4. Payments; Pro Rata Treatment; Computations; Etc....................................................-26-
4.01 Payments........................................................................................-26-
4.02 Pro Rata Treatment..............................................................................-27-
4.03 Computations....................................................................................-27-
4.04 Minimum Amounts.................................................................................-27-
4.05 Certain Notices.................................................................................-28-
4.06 Non-Receipt of Funds by the Administrative Agent................................................-28-
4.07 Sharing of Payments, Etc........................................................................-29-
Section 5. Yield Protection, Etc..............................................................................-30-
5.01 Additional Costs................................................................................-30-
5.02 Limitation on Types of Loans....................................................................-32-
5.03 Illegality......................................................................................-32-
5.04 Treatment of Affected Loans.....................................................................-32-
5.05 Compensation....................................................................................-33-
5.06 Additional Costs in Respect of Letters of Credit................................................-34-
5.07 U.S. Taxes......................................................................................-34-
5.08 Replacement of Certain Lenders..................................................................-35-
5.09 Consistent Treatment............................................................................-35-
Section 6. Guarantee..........................................................................................-35-
6.01 Guarantee.......................................................................................-35-
6.02 Obligations Unconditional.......................................................................-36-
-i-
Exhibit 10.1
6.03 Reinstatement...................................................................................-36-
6.04 Subrogation.....................................................................................-37-
6.05 Remedies........................................................................................-37-
6.06 Continuing Guarantee............................................................................-37-
6.07 Rights of Contribution..........................................................................-37-
6.08 Limitation on Guarantee Obligations.............................................................-37-
6.09 Release of Guarantors...........................................................................-37-
Section 7. Conditions Precedent...............................................................................-38-
7.01 Initial Extension of Credit.....................................................................-38-
7.02 Initial and Subsequent Extensions of Credit.....................................................-39-
Section 8. Representations and Warranties.....................................................................-40-
8.01 Corporate Existence.............................................................................-40-
8.02 Financial Condition.............................................................................-40-
8.03 Litigation......................................................................................-40-
8.04 No Breach.......................................................................................-40-
8.05 Action..........................................................................................-41-
8.06 Approvals.......................................................................................-41-
8.07 Use of Credit...................................................................................-41-
8.08 ERISA...........................................................................................-41-
8.09 Taxes...........................................................................................-41-
8.10 Investment Company Act..........................................................................-41-
8.11 Public Utility Holding Company Act..............................................................-41-
8.12 Material Agreements and Liens...................................................................-41-
8.13 Environmental Matters...........................................................................-42-
8.14 Capitalization..................................................................................-42-
8.15 Subsidiaries, Etc...............................................................................-42-
8.16 True and Complete Disclosure....................................................................-43-
Section 9. Covenants of the Company...........................................................................-43-
9.01 Financial Statements; Information; Etc..........................................................-43-
9.02 Litigation......................................................................................-45-
9.03 Existence, Etc..................................................................................-45-
9.04 Insurance.......................................................................................-46-
9.05 Prohibition of Fundamental Changes..............................................................-46-
9.06 Limitation on Liens.............................................................................-47-
9.07 Indebtedness....................................................................................-48-
9.08 Investments.....................................................................................-48-
9.09 Dividend Payments...............................................................................-49-
9.10 Financial Covenants.............................................................................-50-
9.11 Capital Expenditures; Sale Lease-backs; Etc.....................................................-52-
9.12 Subordinated Indebtedness.......................................................................-53-
9.13 Lines of Business...............................................................................-53-
9.14 Transactions with Affiliates....................................................................-53-
9.15 Use of Proceeds.................................................................................-53-
9.16 Certain Obligations Respecting Subsidiaries.....................................................-54-
9.17 Additional Subsidiary Guarantors................................................................-54-
9.18 Modifications of Certain Documents..............................................................-54-
9.19 Sales of Accounts...............................................................................-54-
9.20 Release of Collateral...........................................................................-55-
-ii-
Exhibit 10.1
Section 10. Events of Default.................................................................................-55-
Section 11. The Administrative Agent..........................................................................-57-
11.01 Appointment, Powers and Immunities.............................................................-57-
11.02 Reliance by Administrative Agent...............................................................-57-
11.03 Defaults.......................................................................................-58-
11.04 Rights as a Lender.............................................................................-58-
11.05 Indemnification................................................................................-58-
11.06 Non-Reliance on Administrative Agent and Other Lenders.........................................-58-
11.07 Failure to Act.................................................................................-59-
11.08 Resignation or Removal of Administrative Agent.................................................-59-
11.09 Agency Fee.....................................................................................-59-
11.10 Consents under Basic Documents.................................................................-59-
Section 12. Miscellaneous.....................................................................................-59-
12.01 Waiver.........................................................................................-59-
12.02 Notices........................................................................................-60-
12.03 Expenses, Etc..................................................................................-60-
12.04 Amendments, Etc................................................................................-61-
12.05 Successors and Assigns.........................................................................-61-
12.06 Assignments and Participations.................................................................-61-
12.07 Survival.......................................................................................-63-
12.08 Captions.......................................................................................-63-
12.09 Counterparts...................................................................................-63-
12.10 Governing Law; Submission to Jurisdiction......................................................-63-
12.11 Waiver of Jury Trial...........................................................................-63-
12.12 Complete Agreement.............................................................................-63-
12.13 Confidentiality................................................................................-64-
SCHEDULE I - Material Agreements and Liens
SCHEDULE II - Subsidiaries and Investments
EXHIBIT A-1 - Form of Revolving Credit Note
EXHIBIT A-2 - Form of Swingline Note
EXHIBIT B-1 - Form of Existing Security Agreement
EXHIBIT B-2 - Form of Amendment to Security Agreement
EXHIBIT C - Form of Opinion of Counsel to the Obligors
EXHIBIT D - Form of Opinion of Special New York Counsel to Chase, CIBC and ING
EXHIBIT E - Form of Compliance Certificate
-iii-
Exhibit 10.1
AMENDED AND RESTATED CREDIT AGREEMENT dated as of November 18,
1997, among: XXXXXX & XXXXX, INC., a corporation duly organized and
validly existing under the laws of the State of Delaware (together with
its successors and assigns, the "Company"); each of the Subsidiaries of
the Company identified under the caption "SUBSIDIARY GUARANTORS" on the
signature pages hereto (each such Subsidiary and each other Subsidiary of
the Company that becomes a "Subsidiary Guarantor" pursuant to Section
9.17 hereof, together with its successors and assigns, but excluding any
Released Guarantors, individually, a "Subsidiary Guarantor" and,
collectively, the "Subsidiary Guarantors" and, together with the Company,
the "Obligors"); each of the lenders named under the caption "Lenders" on
the signature pages hereof (together with its successors and assigns,
individually, a "Lender" and, collectively, the "Lenders"); THE CHASE
MANHATTAN BANK, in its capacity as Swingline Bank under Section 2.01(b)
hereof (in such capacity, together with its successors in such capacity,
the "Swingline Bank"); and THE CHASE MANHATTAN BANK, as agent for the
Lenders (in such capacity, together with its successors in such capacity,
the "Administrative Agent").
The Company and the Subsidiary Guarantors are engaged as an
integrated group in the business of distributing and selling books and
related products, and in related or complementary businesses, and in
furnishing the required supplies, services, equipment, credit and other
facilities for such integrated operation. This integrated operation
requires financing on such a basis that credit supplied to the Company be
made available from time to time to the Subsidiary Guarantors, as
required for the continued successful operation of the Obligors,
separately, and the integrated operation of the Obligors as a whole. In
that connection, the Obligors, certain of the Lenders and the
Administrative Agent entered into a Credit Agreement dated as of March
28, 1996 (the "Existing Credit Agreement") pursuant to which said Lenders
agreed to extend credit to the Company in an aggregate amount not
exceeding $550,000,000. The Obligors have requested that the Lenders
increase the aggregate Commitments to extend credit to the Company (all
or a substantial portion of which will be made available by the Company
to the Subsidiary Guarantors) to an aggregate principal amount not
exceeding $850,000,000 to refinance certain existing indebtedness of the
Obligors, including all of the obligations under the existing Credit
Agreement, to enable certain acquisitions and capital expenditures by the
Obligors, for working capital and for other corporate purposes.
To induce the Lenders to extend such credit, the Obligors desire
to enter into this Agreement, which will amend and restate the Existing
Credit Agreement in all respects, and pursuant to which the Lenders will
make loans to and issue or participate in letters of credit for account
of the Company, the Swingline Bank will make loans to the Company, each
Subsidiary Guarantor will guarantee the credit so extended to the Company
and each of the Obligors will agree to execute and deliver security
agreements providing for security interests and liens to be granted by
the Obligors on certain of their respective Properties as collateral
security for the obligations of the Obligors to the Lenders, the
Swingline Bank and the Administrative Agent hereunder. Each Obligor
expects to derive benefit, directly or indirectly, from the credit so
extended to the Company, both in its separate capacity and as a member of
the integrated group, because the successful operation of each Obligor is
dependent on the continued successful performance of the functions of the
integrated group as a whole.
Accordingly, the parties hereto agree 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):
"Affiliate" shall mean, as to any specified Person, any other Person
that directly or indirectly controls, or is under common control with, or is
controlled by, such specified Person and, if such other Person is an individual,
any member of the immediate family (including parents, spouse, children and
siblings) of such individual and any trust whose principal beneficiary is such
individual or one or more members of such immediate family and any Person
Exhibit 10.1
who is controlled by any such member or trust. 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 that owns directly or
indirectly securities having 10% or more of the voting power for the election of
directors or other governing body of a corporation or 10% or more of the
partnership or other ownership interests of any other Person will be deemed to
control such corporation or other Person. Notwithstanding the foregoing, (a) no
individual shall be an Affiliate of the Company or any of its Subsidiaries
solely by reason of such individual being a director, officer or employee of the
Company or any of its Subsidiaries, (b) the Company and its Wholly Owned
Subsidiaries (other than Unrestricted Subsidiaries) shall not be Affiliates of
each other and (c) neither the Administrative Agent, the Swingline Bank nor any
Lender shall be an Affiliate of the Company or any of its Subsidiaries.
"Applicable Commitment Fee Percentage" shall mean a percentage
per annum calculated by reference to the Fixed Charge Ratio as at the
last day of the most recently ended four consecutive fiscal quarters of
the Company (a "Testing Date"), which if such Fixed Charge Ratio shall
fall within any of the ranges set forth in the Schedule A below, then the
"Applicable Commitment Fee Percentage" shall be the respective percentage
per annum set forth opposite such range in Schedule A below, during the
period commencing on the Fee Change Date for such Testing Date to but not
including the Fee Change Date for the next succeeding Testing Date
(except that notwithstanding the foregoing, (i) during any period prior
to the first Fee Change Date after the date hereof, the Applicable
Commitment Fee Percentage shall be 0.175% per annum and (ii) the
Applicable Commitment Fee Percentage shall not, as a consequence of the
rate changes herein provided, be so changed to less than 0.175% per annum
for any period during which any Event of Default shall have occurred and
be continuing):
SCHEDULE A
Fixed Charge Applicable Commitment Fee Percentage (% p.a.)
Ratio Range
greater than or equal to 1.75 to 1 .125% per annum
less than 1.75 to 1, but greater than or equal to 1.55 .150% per annum
to 1
less than 1.55 to 1, but greater than or equal to 1.35 .175% per annum
to 1
less than 1.35 to 1, but greater than or equal to 1.30 .200% per annum
to 1
less than 1.30 to 1 .250% per annum
For purposes of this definition, "Fee Change Date" shall mean, for any
Testing Date, the earlier of (i) five Business Days after the
Administrative Agent receives the Company's financial statements pursuant
to Section 9.01(a) or 9.01(b) hereof for such Testing Date (except that
for any Testing Date that is a fiscal year end, for purposes of
determining the Applicable Commitment Fee Percentage, the Company may
deliver a statement setting forth a calculation of the Fixed Charge Ratio
for such fiscal year, certified by the treasurer or a senior financial
officer of the Company (and the Applicable Commitment Fee Percentage
shall be adjusted accordingly in the event that the Fixed Charge Ratio as
set forth in any such statement differs from the Fixed Charge Ratio
calculated based on the applicable audited financial statements for such
fiscal year)) and (ii) five Business Days after the date on which such
financial statements are required to be delivered pursuant to such
Section.
-2-
Exhibit 10.1
"Applicable Lending Office" shall mean (a) for each Lender and
for each Revolving Credit Loan, the "Lending Office" of such Lender (or
of an affiliate of such Lender) designated for such Revolving Credit
Loan, on the signature pages hereof or such other office of such Lender
(or of an affiliate of such Lender) as such Lender may from time to time
specify to the Administrative Agent and the Company as the office by
which its Revolving Credit Loans are to be made and maintained and (b)
for the Swingline Bank, the "Lending Office" of such Lender (or of an
affiliate of such Lender) designated for Swingline Loans on the signature
pages hereof or such other office located in the City of New York of such
Lender (or of an affiliate of such Lender) as such Lender may from time
to time specify to the Administrative Agent and the Company as the office
by which Swingline Loans are to be made and maintained.
"Applicable Margin" shall mean, for each Type of Loan, a
percentage per annum calculated by reference to the Fixed Charge Ratio as
at the last day of the most recently ended four consecutive fiscal
quarters of the Company (a "Testing Date"), which if such Fixed Charge
Ratio shall fall within any of the ranges set forth in the Schedule A
below, then the "Applicable Margin" for each Type of Loan shall be the
respective percentage per annum set forth opposite such range in Schedule
A below, during the period commencing on the Margin Change Date for such
Testing Date to but not including the Margin Change Date for the next
succeeding Testing Date (except that notwithstanding the foregoing, (i)
during any period prior to the first Margin Change Date occurring after
the date hereof, the Applicable Margin in the case of Base Rate Loans
shall be zero and the Applicable Margin in the case of Eurodollar Loans
shall be 0.625% per annum and (ii) the Applicable Margin for any Loan
shall not, as a consequence of the rate changes herein provided, be so
changed to less than, in the case of Base Rate Loans, zero and, in the
case of Eurodollar Loans, 0.625% per annum for any period during which
any Event of Default shall have occurred and be continuing:
SCHEDULE A
Fixed Charge Applicable Margin (% p.a.)
Ratio Range
Base Rate Loans Eurodollar Loans
greater than or equal to 1.75 to 1 0% per annum .375% per annum
less than 1.75 to 1, but greater than or equal to 0% per annum .500% per annum
1.55 to 1
less than 1.55 to 1, but greater than or equal to
1.35 to 1 0% per annum .625% per annum
less than 1.35 to 1, but greater than or equal to 0% per annum .750% per annum
1.30 to 1
less than 1.30 to 1 0% per annum .875% per annum
For purposes of this definition, "Margin Change Date" shall mean, for any
Testing Date, the earlier of (i) five Business Days after the
Administrative Agent receives the Company's financial statements pursuant
to Section 9.01(a) or 9.01(b) hereof for such Testing Date (except that
for any Testing Date that is a fiscal year end, for purposes of
determining the Applicable Margin, the Company may deliver a statement
setting forth a calculation of the Fixed Charge Ratio for such fiscal
year, certified by the treasurer or a senior financial officer of the
Company (and the Applicable Margin shall be adjusted accordingly in the
event that the Fixed Charge Ratio as set forth in any such statement
differs from the Fixed Charge Ratio calculated based on the applicable
audited financial statements for such fiscal year)) and (ii) five
Business Days after the date on which such financial statements are
required to be delivered pursuant to such Section.
-3-
Exhibit 10.1
"Applicable Percentage" shall mean, at any time that the Company
is Investment Grade, 50%, and, at any other time, 75%.
"X. Xxxxxx" shall mean X. Xxxxxx Bookseller, Inc., a Minnesota
corporation.
"Bankruptcy Code" shall mean the Federal Bankruptcy Code of
1978, as amended from time to time.
"Base Rate" shall mean, for any day, a rate per annum equal to
the higher of (a) the Federal Funds Rate for such day plus 1/2 of 1% and
(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 Loans that bear interest at rates
based upon the Base Rate.
"Basic Documents" shall mean, collectively, this Agreement, the
Notes, the Letter of Credit Documents and the Security Documents.
"Business Day" shall mean (a) any day on which commercial banks
are not authorized or required to close in New York City and (b) if such
day relates to a borrowing of, a payment or prepayment of principal of or
interest on, a Conversion of or into, or an Interest Period for, a
Eurodollar Loan or a notice by the Company with respect to any such
borrowing, payment, prepayment, Conversion or Interest Period, any day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"Capital Expenditures" shall mean, for any period, expenditures
made by the Company or any of its Consolidated Subsidiaries to acquire or
construct fixed assets, plant and equipment (including renewals,
improvements and replacements, but excluding repairs) during such period
computed in accordance with GAAP, other than Specified Capital
Expenditures.
"Capital Lease Obligations" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a lease of
(or other agreement conveying the right to use) Property to the extent
such obligations are required to be classified and accounted for as a
capital lease on a balance sheet of such Person under GAAP, and, for
purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP.
"Change of Control" shall mean the occurrence of any of the following:
(a) a majority of the members of the Board of Directors
of the Company no longer being composed of: (i) individuals who
are members of said Board on the date hereof, (ii) individuals
whose election or nomination to said Board was approved by
individuals referred to in clause (i) above constituting at the
time of such election or nomination at least a majority of said
Board or (iii) individuals whose election or nomination to said
Board was approved by individuals referred to in clauses (i) and
(ii) above constituting at the time of such election or
nomination at least a majority of said Board; or
(b) any Unrelated Person or any two or more Unrelated
Persons that are deemed to be a "person" under Sections 13(d)(3)
and 14(d)(2) of the Securities Exchange Act of 1934, as amended,
acquiring, directly or indirectly, effective control (whether
through legal or beneficial ownership of capital stock of the
Company, by contract or otherwise) of more than 25% of the
outstanding Voting Shares.
"Chase" shall mean The Chase Manhattan Bank, or any successor thereto.
"CIBC" shall mean CIBC Inc. and its affiliates.
-4-
Exhibit 10.1
"Closing Date" shall mean the date, no later than November 28,
1997, on which the conditions precedent specified in Section 7 hereof
have been satisfied and on which the initial extensions of credit
hereunder are made.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
"Collateral" shall have the meaning assigned to such term in
Section 3 of the Security Agreement.
"Collateral Account" shall have the meaning assigned to such
term in Section 4.01 of the Security Agreement.
"College" shall mean Xxxxxx & Xxxxx College Bookstores, Inc., a New
York corporation.
"Commitments" shall mean the Revolving Credit Commitments and the
Swingline Commitment.
"Consolidated Subsidiary" shall mean, for any Person, each
Subsidiary (other than an Unrestricted Subsidiary or a Released
Guarantor) 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.
"Continue", "Continuation" and "Continued" shall refer to the
continuation pursuant to Section 2.09 hereof of a Eurodollar Loan from
one Interest Period to the next Interest Period.
"Convert", "Conversion" and "Converted" shall refer to a
conversion pursuant to Section 2.09 hereof of one Type of Revolving
Credit Loans into another Type of Revolving Credit Loans, which may be
accompanied by the transfer by a Lender (at its sole discretion) of a
Revolving Credit Loan from one Applicable Lending Office to another.
"Debt Service" shall mean, for any period, the sum for the
Company and its Consolidated Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP) of the following: (a)
all Interest Expense for such period plus (b) all payments of principal
of Indebtedness (including, without limitation, the principal component
of any payments in respect of Capital Lease Obligations, but excluding
payments in respect of (i) the Revolving Credit Loans and Swingline
Loans, (ii) Reimbursement Obligations, (iii) Indebtedness incurred
pursuant to Section 9.07(i) hereof, (iv) loans outstanding under the
Existing Credit Agreement and (v) any redemption of the Outstanding
Subordinated Notes) scheduled to be made during such period plus (c) all
Capital Expenditures during such period.
"Default" shall mean an Event of Default or an event that with
notice or lapse of time or both would become an Event of Default.
"Disposition" shall mean any sale, assignment, transfer or other
disposition of any Property other than cash (whether now owned or
hereafter acquired) by the Company or any of its Subsidiaries (other than
an Unrestricted Subsidiary or a Released Guarantor) to any Person
excluding (a) any sale, assignment, transfer or other disposition of any
Property sold or disposed of in the ordinary course of business and on
ordinary business terms, (b) any sale, assignment or transfer from one
Wholly Owned Subsidiary of the Company to another Wholly Owned Subsidiary
(other than an Unrestricted Subsidiary or a Released Guarantor) of the
Company, (c) any Dividend Payment or Investment permitted under this
Agreement, (d) any sale, assignment, transfer or other disposition of any
Project and (e) any Disposition made pursuant to Section 9.05(d)(v)
hereof.
"Dividend Payment" shall mean dividends (in cash, Property or
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any shares of
any class of stock of the Company or of any warrants,
-5-
Exhibit 10.1
options or other rights to acquire the same, but excluding dividends payable
solely in shares of common stock of the Company.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"EBITDA" shall mean, for any period, the sum, for the Company
and its Consolidated Subsidiaries (determined on a consolidated basis,
without duplication, in accordance with GAAP), of the following: (a) net
income (calculated before income taxes, the LIFO Charge, any fees or
premiums paid and attributable to the redemption of the Outstanding
Subordinated Notes and any write-off of deferred financing fees) for such
period, plus (b) the aggregate amount of depreciation, amortization and
taxes for such period, plus (c) Interest Expense for such period, plus
(d) any accretion expense with respect to any Equity Rights of the
Company and its Consolidated Subsidiaries for such period, plus (e) all
non-cash charges taken during such period (including, without limitation,
pursuant to Statements No. 13 and 121 of the Financial Standards
Accounting Board), plus (f) net proceeds to the Company and its
Consolidated Subsidiaries during such period upon exercise of any Equity
Rights issued to directors, officers or employees of the Company or any
of its Subsidiaries, plus (g) any loss (or minus any income) attributable
to equity in Affiliates (other than Unrestricted Subsidiaries) of the
Company or any of its Consolidated Subsidiaries for such period, minus
(h) all extraordinary non-cash gains for such period.
"EBITDAR" shall mean, for any period, the sum, for the Company
and its Consolidated Subsidiaries (determined on a consolidated basis,
without duplication, in accordance with GAAP), of the following: (a)
EBITDA for such period plus (b) Rental Payments for such period.
"Eligible Assignee" shall mean (i) any commercial bank or other
financial institution organized under the laws of the United States of
America or any state thereof with assets of at least $5,000,000,000 and
(ii) any commercial bank or other financial institution organized under
the laws of any other country that is a member of the Organization for
Economic Cooperation and Development, or any political subdivision
thereof, with assets of at least $5,000,000,000 (or the equivalent in
other currencies), combined capital and surplus of at least
$1,000,000,000 (or the equivalent in other currencies) and a branch,
office or agency located in the United States of America.
"Environmental Claim" shall mean, with respect to any Person,
any written or oral notice, claim, demand or other communication
(collectively, a "claim") by any other Person alleging or asserting such
Person's liability for investigatory costs, cleanup costs, governmental
response costs, damages to natural resources or other Property, personal
injuries, fines or penalties arising out of, based on or resulting from
(a) the presence, or Release into the environment, of any Hazardous
Material at any location, whether or not owned by such Person, or (b)
circumstances forming the basis of any violation, or alleged violation,
by such Person of any Environmental Law. The term "Environmental Claim"
shall include, without limitation, any claim by any governmental
authority for enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any Environmental Law, and any claim by
any third party seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief resulting from the presence
of Hazardous Materials or arising from alleged injury or threat of injury
to the environment.
"Environmental Laws" shall mean any and all present and future
Federal, state, local and foreign laws, rules or regulations, and any
orders or decrees, in each case as now or hereafter in effect, relating
to the regulation or protection of the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or toxic or hazardous substances or wastes into the indoor or
outdoor environment, including, without limitation, ambient air, soil,
surface water, ground water, wetlands, land or subsurface strata, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants,
contaminants or toxic or hazardous substances or wastes.
"Equity Financed" shall mean, in respect of Capital Expenditures
or Investments, any Capital Expenditures or Investments to the extent
that:
-6-
Exhibit 10.1
(a) they are financed with the proceeds of an Equity
Issuance that occurred not more than 12 months prior to the date
on which such Capital Expenditures or Investments (as the case
may be) were made, and
(b) the aggregate amount of all such Capital
Expenditures and Investments financed with the proceeds of any
single Equity Issuance does not exceed $35,000,000.
"Equity Issuance" shall mean (a) any issuance or sale by the
Company after the date of this Agreement of (i) any capital stock of the
Company (including Preferred Stock but excluding any capital stock of the
Company issued upon the exercise of the warrants or the options referred
to in the parenthetical in clause (ii) below or upon the conversion of
any Preferred Stock), (ii) any warrants or options exercisable in respect
of capital stock of the Company (other than warrants or options issued to
directors, officers or employees of the Company or any of its
Subsidiaries) or (iii) any other security or instrument representing an
equity interest (or the right to obtain any equity interest) in the
Company or (b) the receipt by the Company or any of its Subsidiaries
(other than Unrestricted Subsidiaries or Released Guarantors) after the
date of this Agreement of any capital contribution (whether or not
evidenced by any equity security issued by the recipient of such
contribution); provided that Equity Issuance shall not include (x) any
such issuance or sale by any Subsidiary of the Company to the Company or
any Wholly Owned Subsidiary (other than an Unrestricted Subsidiary) of
the Company or (y) any capital contribution by the Company or any Wholly
Owned Subsidiary (other than an Unrestricted Subsidiary) of the Company
to any Subsidiary (other than an Unrestricted Subsidiary) of the Company.
"Equity Rights" shall mean, with respect to any Person, any
outstanding subscriptions, options, warrants, commitments, preemptive
rights or agreements of any kind (including, without limitation, any
stockholders' or voting trust agreements) for the issuance, sale,
registration or voting of, or outstanding securities convertible into,
any additional shares of capital stock of any class, or partnership or
other ownership interests of any type in, such Person.
"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 that is a member of any group of organizations (a) described in
Section 414(b) or (c) of the Code of which the Company is a member and
(b) solely for purposes of potential liability under Section 302(c)(11)
of ERISA and Section 412(c)(11) of the Code and the lien created under
Section 302(f) of ERISA and Section 412(n) of the Code, described in
Section 414(m) or (o) of the Code of which the Company is a member.
"Eurodollar Loans" shall mean Revolving Credit Loans the
interest rates on which are determined on the basis of rates referred to
in the definition of "Eurodollar Rate" in this Section 1.01.
"Eurodollar Rate" shall mean, with respect to any Eurodollar Loan for
any Interest Period therefor, the arithmetic mean (rounded upwards, if
necessary, to the nearest 1/100 of 1%), as determined by the Administrative
Agent, of the rates per annum (rounded upwards, if necessary, to the nearest
1/16 of 1%) quoted by the respective Reference Banks 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 such Interest Period for the offering by the
respective Reference Banks 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 to be made by
such Reference Bank for such Interest Period. If any Reference Bank (or a Wholly
Owned Subsidiary thereof) is not participating in any Eurodollar Loan during any
Interest Period therefor, the Eurodollar Rate for such Revolving Credit Loan for
such Interest Period shall be determined by reference to the amount of the
Revolving Credit Loan that such Reference Bank would have made or had
outstanding had it been participating in such Revolving Credit Loan during such
Interest Period. If any Reference Bank does not furnish the Administrative Agent
with a quote for purposes of determining the Eurodollar Rate for any Revolving
Credit Loan for any Interest Period therefor, the Eurodollar Rate
-7-
Exhibit 10.1
for such Interest Period shall be determined by reference to the quote(s) of the
other Reference Bank(s).
"Event of Default" shall have the meaning assigned to such term
in Section 10 hereof.
"Excess Cash Flow" shall mean, for any period, the excess of (i)
the sum of (x) EBITDA for such period , plus (y) non-cash deferred tax
charges incurred for such period, over (ii) the sum of the following
(without duplication):
(a) Capital Expenditures (other than Equity Financed
Capital Expenditures) made during such period to the extent
permitted by Section 9.11 hereof, plus
(b) the aggregate amount (without duplication) of
Investments made by the Company and its Subsidiaries in cash
during such period (other than Equity Financed Investments) that
either (x) consist of equity interests or (y) constitute
acquisitions of the capital stock or assets of other companies
(for which purpose the amount of the Investment shall include
the amount of the consideration therefor together with the
amount of any liabilities assumed), plus
(c) increases (or minus decreases) in working capital
(determined in accordance with GAAP) of the Company and its
Subsidiaries (other than Unrestricted Subsidiaries and Released
Guarantors) for such fiscal year (excluding, for this purpose,
(x) the current portion of any long-term Indebtedness, (y) any
short-term Indebtedness and (z) all cash and cash equivalents),
plus
(d) increases in long-term assets (or minus increases
in long-term liabilities) of the Company and its Subsidiaries
(other than Unrestricted Subsidiaries and Released Guarantors)
for such period, excluding (i) losses or income attributable to
equity interests in Affiliates, (ii) deferred financing fees
capitalized as long-term assets (determined in accordance with
GAAP), and (iii) the aggregate principal amount of any
outstanding Loans, plus
(e) all cash principal of and interest on Indebtedness
of the Company or any of its Subsidiaries (other than
Unrestricted Subsidiaries and Released Guarantors) paid during
such period (other than (i) Indebtedness hereunder, (ii)
Indebtedness incurred pursuant to Section 9.07(i) hereof, (iii)
Indebtedness outstanding under the Existing Credit Agreement and
(iv) the Outstanding Subordinated Notes), plus
(f) all cash income taxes paid by the Company and its
Subsidiaries (other than Unrestricted Subsidiaries and Released
Guarantors) during such period, plus
(g) the aggregate amount of all payments made by the
Company and its Subsidiaries (other than Unrestricted
Subsidiaries and Released Guarantors) during such period in
respect of Capital Lease Obligations.
"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 (a) 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 (b) if such rate is not so published for any Business
Day, the Federal Funds Rate for such Business Day shall be the average
rate quoted to Chase on such Business Day on such transactions as
determined by the Administrative Agent.
"Fee Letter" shall mean the letter dated October 2, 1997 from
Chase to the Company providing for certain fees relating to this
Agreement and the transactions contemplated hereby.
-8-
Exhibit 10.1
"Fixed Charge Ratio" shall mean, as at any date, the ratio of the
following:
(a) EBITDA for the period of four consecutive fiscal
quarters ending on or most recently ended prior to such date, to
(b) the sum of the following:
(i) Debt Service for such period, plus
(ii) the aggregate amount (without
duplication) of Investments in Affiliates for such
period that either (x) consist of equity interests or
(y) constitute acquisitions of the capital stock or
assets of other companies (for which purpose the amount
of the Investment shall include the amount of the
consideration therefor together with the amount of any
liabilities assumed), minus
(iii) the following:
(x) for purposes of Section 9.10(a)
hereof, (A) Equity Financed Investments made
in such period and (B) Equity Financed Capital
Expenditures made in such period, and
(y) for purposes of the definition of
"Applicable Margin" in this Section 1.01,
(A) Equity Financed
Investments made in such period, but
only to the extent:
(1) of the excess of
(x) the aggregate amount of
all Equity Financed
Investments made in such
period, together with the
aggregate amount of all
Investments made in such
period in compliance with
Sections 9.08(g) and 9.08(j)
hereof over (y) the maximum
amount of Investments
permitted to be made in such
period pursuant to Sections
9.08(g) and 9.08(j) hereof,
and
(2) such Equity
Financed Investments are
included in the foregoing
clause (b)(ii), and
(B) Equity Financed Capital
Expenditures made in such period, but
only to the extent of the excess of
(x) the aggregate amount of all
Equity Financed Capital Expenditures
made in such period, together with
the aggregate amount of Capital
Expenditures made in such period in
compliance with Section 9.11(a)
hereof over (y) the maximum amount of
Capital Expenditures permitted to be
made in such period pursuant to
Section 9.11(a) hereof.
"Funded Debt" shall mean, as at any date, without duplication,
the aggregate principal amount of the Loans outstanding on such date plus
the outstanding principal amount of the Senior Subordinated Debt on such
date plus the aggregate amount of Capital Lease Obligations on such date
plus the aggregate amount of any Indebtedness of the Company or any of
its Subsidiaries (other than Unrestricted Subsidiaries and Released
Guarantors) of the type described in clause (a), (b), (d) or (f) (but
only insofar as Indebtedness of the type described in clause (f)
constitutes a Guarantee of Indebtedness of the type described in clause
(a), (b) or (d)) of the definition of "Indebtedness" in this Section 1.01
permitted to be outstanding pursuant to Section 9.07 hereof.
-9-
Exhibit 10.1
"GAAP" shall mean generally accepted accounting principles
applied on a basis consistent with those which, in accordance with
Section 1.02(a) hereof, are to be used in making the calculations for
purposes of determining compliance with 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 or equity interests of
any Person, 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 such debtor's
obligations or an agreement to assure a creditor against loss, and
including, without limitation, causing a bank or other financial
institution to issue a letter of credit or other similar instrument for
the benefit of another Person, but excluding (i) endorsements for
collection or deposit in the ordinary course of business and (ii) Rental
Payments made to a lessor in the ordinary course of business so long as
there is no obligation to any Person (other than such lessor) that may
benefit from, or rely on, such Rental Payments. The terms "Guarantee" and
"Guaranteed" used as a verb shall have a correlative meaning.
"Hazardous Material" shall mean, collectively, (a) any petroleum
or petroleum products, flammable explosives, radioactive materials,
asbestos in any form that is or could become friable, urea formaldehyde
foam insulation and transformers or other equipment that contain
dielectric fluid containing polychlorinated biphenyls, (b) any chemicals
or other materials or substances which are now or hereafter become
defined as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely hazardous wastes",
"restricted hazardous wastes", "toxic substances", "toxic pollutants",
"contaminants", "pollutants" or words of similar import under any
Environmental Law and (c) any other chemical or other material or
substance, exposure to which is now or hereafter prohibited, limited or
regulated under any Environmental Law.
"Indebtedness" shall mean, for any Person: (a) obligations
created, issued or incurred by such Person for borrowed money (whether by
loan, the issuance and sale of debt securities or the sale of Property to
another Person subject to an understanding or agreement to repurchase
such Property from such Person); (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 (i) so long
as such trade accounts payable are payable within 270 days of the date
the respective goods are delivered or the respective services are
rendered or (ii) with respect to trade accounts payable which are payable
beyond 270 days of the date the respective goods are delivered or the
respective services are rendered, to the extent that the aggregate amount
outstanding of such trade accounts payable at any one time does not
exceed $50,000,000; (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 (contingent or
otherwise) of such Person in respect of letters of credit, bankers'
acceptances or similar instruments issued or accepted by banks and other
financial institutions for account of such Person; (e) Capital Lease
Obligations of such Person; and (f) Indebtedness of others Guaranteed by
such Person.
"ING" shall mean ING (U.S.) Capital Corporation and any successor
thereto.
"Interest Coverage Ratio" shall mean, as at any date, the ratio
of (a) EBITDAR for the period of four consecutive fiscal quarters ending
on or most recently ended prior to such date to (b) the sum of Interest
Expense for such period plus Rental Payments for such period (to the
extent not included in Interest Expense) for such period.
"Interest Expense" shall mean, for any period, interest expense
of the Company and its Consolidated Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP),
excluding any interest income, any write-off or amortization of deferred
financing fees and any fees or premiums paid and attributable to the
redemption of the Outstanding Subordinated Notes, but including in any
event the following: (a) all interest in respect of Indebtedness and all
cash dividends in respect of Preferred Stock accrued or capitalized
-10-
Exhibit 10.1
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, with respect to any Eurodollar
Loan, each period commencing on the date such Eurodollar Loan is made or
Converted from a Base Rate Loan or the last day of the next preceding
Interest Period in the case of a Continued Loan 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 4.05 hereof, except that each Interest Period that 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. Notwithstanding the foregoing: (i) if any
Interest Period for any Revolving Credit Loan would otherwise end after
the Revolving Credit Commitment Termination Date, such Interest Period
shall end on the Revolving Credit Commitment Termination Date; (ii) each
Interest Period that would otherwise end on a day which is not a Business
Day shall end on the next succeeding Business Day (or, 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 shall have a duration of less than one month
and, if the Interest Period for any Eurodollar Loan would otherwise be a
shorter period, such Loan shall not be available hereunder for such
period.
"Interest Rate Protection Agreement" shall mean, for any Person,
an interest rate swap, cap or collar agreement or similar arrangement
between such Person and one or more financial institutions providing for
the transfer or mitigation of interest risks either generally or under
specific contingencies.
"Investment" shall mean, for any Person: (a) the acquisition
(whether for cash, Property, services or securities or otherwise) of
capital stock, bonds, notes, debentures, partnership or other ownership
interests or other securities issued by any other Person or any agreement
to make any such acquisition (including, without limitation, any "short
sale" or any sale of any securities at a time when such securities are
not owned by the Person entering into such short sale); (b) the making of
any deposit with, or advance, loan or other extension of credit to, any
other Person (including the purchase of Property from another Person
subject to an understanding or agreement, contingent or otherwise, to
resell such Property to such other Person, but excluding any such
advance, loan or extension of credit having a term not exceeding 270 days
representing the purchase price of inventory or supplies sold by such
Person in the ordinary course of business) and (without duplication) the
entering into of any commitment to deposit funds with, advance or lend
funds to or otherwise extend credit to such other Person (other than, in
the case of the Company or any Subsidiary of the Company, a Guarantee of
Indebtedness or other liabilities of any Subsidiary (other than an
Unrestricted Subsidiary or a Released Guarantor) of the Company); (c) the
entering into of any Guarantee of, or other contingent obligation with
respect to, Indebtedness or other liability of any other Person (other
than, in the case of the Company or any Subsidiary of the Company, a
Guarantee of Indebtedness or other liabilities of any Subsidiary (other
than an Unrestricted Subsidiary or a Released Guarantor) of the Company);
or (d) the entering into of any Interest Rate Protection Agreement.
"Investment Grade" shall mean that the Company's senior
unsecured debt obligations are rated Baa3 or higher by Xxxxx'x Investors
Service, Inc. and BBB- or higher by Standard & Poor's Corporation.
"Issuing Bank" shall mean Chase, as the Lender that is the
issuer of Letters of Credit under Section 2.03 hereof, or any affiliate
of Chase designated by Chase to be the "Issuing Bank", together with its
successors and assigns in such capacity (provided that the Issuing Bank
shall at all times be a Lender or an affiliate of a Lender).
"Letter of Credit" shall have the meaning assigned to such term
in Section 2.03 hereof.
"Letter of Credit Documents" shall mean, with respect to any
Letter of Credit, collectively, any application therefor and any other
agreements, instruments, guarantees or other documents (whether general
in application or applicable only to such Letter of Credit) governing or
providing for (a) the rights and obligations of the parties
-11-
Exhibit 10.1
concerned or at risk with respect to such Letter of Credit or (b) any collateral
security for any of such obligations, each as the same may be modified and
supplemented and in effect from time to time.
"Letter of Credit Interest" shall mean, for each Lender, such
Lender's participation interest (or, in the case of the Issuing Bank, the
Issuing Bank's retained interest) in the Issuing Bank's liability under
Letters of Credit and such Lender's rights and interests in Reimbursement
Obligations and fees, interest and other amounts payable in connection
with Letters of Credit and Reimbursement Obligations.
"Letter of Credit Liability" shall mean, without duplication, at
any time and in respect of any Letter of Credit, the sum of (a) the
undrawn face amount of such Letter of Credit plus (b) the aggregate
unpaid principal amount of all Reimbursement Obligations of the Company
at such time due and payable in respect of all drawings made under such
Letter of Credit. For purposes of this Agreement, a Lender (other than
the Issuing Bank) shall be deemed to hold a Letter of Credit Liability in
an amount equal to its participation interest in the related Letter of
Credit under Section 2.03 hereof, and the Issuing Bank shall be deemed to
hold a Letter of Credit Liability in an amount equal to its retained
interest in the related Letter of Credit Liability after giving effect to
the acquisition by the Lenders other than the Issuing Bank of their
participation interests under said Section 2.03.
"Leverage Ratio" shall mean, at any time, the ratio of (a)
Funded Debt at such time to (b) EBITDA for the period of four consecutive
fiscal quarters ending on or most recently ended prior to such time.
"License Agreement" shall mean the License Agreement dated as of
February 11, 1987 between College and Xxxxxx & Xxxxx Discount Bookstores,
Inc. (a predecessor of X. Xxxxxx), as the same shall be modified and
supplemented and in effect from time to time.
"Lien" shall mean, with respect to any Property, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in
respect of such Property. For purposes of this Agreement and the other
Basic Documents, a Person shall be deemed to own subject to a Lien any
Property that 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 (other than an operating lease) relating
to such Property.
"LIFO Charge" shall mean a charge by the Company to its
consolidated earnings, before taxes, equal to the before-tax effect on
the Company's consolidated earnings as a result of using the last-in
first-out accounting method, instead of the first-in first-out accounting
method, to calculate its consolidated cost of goods sold, such charge to
be determined in accordance with GAAP.
"Loans" shall mean the Revolving Credit Loans and the Swingline Loans.
"Majority Lenders" shall mean, at all times, Lenders having at
least 51% of the aggregate unpaid principal amount of the Revolving Cedit
Loans plus the aggregate amount of all Letter of Credit Liabilities (or,
if no Revolving Credit Loans or Letter of Credit Liabilities shall be
outstanding, at least 51% of the aggregate amount of the Commitments).
"Margin Stock" shall mean "margin stock" within the meaning of
Regulations G, U and X.
"Material Adverse Effect" shall mean a material adverse effect
on (a) the Property, operations or financial condition of the Company and
its Subsidiaries taken as a whole, (b) the ability of any Obligor to
perform its obligations under any material provision of the Basic
Documents to which it is a party, (c) the validity or enforceability of
any of the Basic Documents taken as a whole, (d) the material rights and
remedies of the Lenders and the Administrative Agent under any of the
Basic Documents or (e) the timely payment of the principal of or interest
on the Loans or the Reimbursement Obligations or other amounts payable in
connection therewith.
-12-
Exhibit 10.1
"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 Available Proceeds" shall mean:
(i) in the case of any Disposition made in any fiscal
year of the Company, the amount of the Net Cash Payments
received in connection with such Disposition to the extent that
they, together with the amount of Net Cash Payments received in
connection with all other Dispositions made in such fiscal year,
exceed $30,000,000; and
(ii) in the case of any Equity Issuance, the aggregate
amount of all cash received by the Obligors in respect of such
Equity Issuance net of reasonable expenses incurred by the
Company and its Subsidiaries (other than Unrestricted
Subsidiaries) in connection therewith.
"Net Cash Payments" shall mean, with respect to any Disposition,
the aggregate amount of all cash payments received by the Company and its
Subsidiaries (other than Unrestricted Subsidiaries and Released
Guarantors) directly or indirectly in connection with such Disposition;
provided that (a) Net Cash Payments shall be net of (i) the amount of any
legal, title and recording tax expenses, commissions and other fees and
expenses paid by the Company and its Subsidiaries (other than
Unrestricted Subsidiaries and Released Guarantors) in connection with
such Disposition and (ii) any Federal, state and local income or other
taxes estimated to be payable by the Company and its Subsidiaries (other
than Unrestricted Subsidiaries and Released Guarantors) as a result of
such Disposition (but only to the extent that such estimated taxes are in
fact paid to the relevant Federal, state or local governmental authority
within 20 months of the date of such Disposition), (b) Net Cash Payments
shall be net of any repayments by the Company or any of its Subsidiaries
(other than Unrestricted Subsidiaries and Released Guarantors) of
Indebtedness (other than Indebtedness created in anticipation of such
Disposition) to the extent that (i) such Indebtedness is secured by a
Lien on the Property that is the subject of such Disposition and (ii) the
transferee of (or holder of a Lien on) such Property requires that such
Indebtedness be repaid as a condition to the purchase of such Property
and (c) Net Cash Payments shall not include any Sale Lease-back Proceeds.
"Notes" shall mean the Revolving Credit Notes and the Swingline Note.
"Outstanding Subordinated Notes" shall mean the Indebtedness of
the Company in respect of the 11-7/8% Senior Subordinated Notes of the
Company due January 15, 2003, issued under an Amended and Restated
Indenture dated as of July 23, 1993 between the Company and United States
Trust Company of New York, as Trustee.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its functions under ERISA.
"Permitted Investments" shall mean: (a) direct obligations of
the United States of America or any agency thereof or obligations
guaranteed by the United States of America or any agency thereof, in each
case, maturing within 360 days of the date of acquisition thereof, (b)
investments in time deposit accounts, certificates of deposit and money
market deposits maturing within 180 days of the date of acquisition
thereof issued by a bank or trust company which is organized under the
laws of the United States of America, any state thereof or any foreign
country recognized by the United States of America having capital,
surplus and undivided profits aggregating in excess of $300,000,000 and
whose debt is rated "A" (or such similar equivalent rating) or higher by
at least one nationally recognized statistical rating organization (as
defined in Rule 436 under the Securities Act of 1933, as amended) or any
money-market fund sponsored by any registered broker dealer or mutual
fund distributor, (c) repurchase obligations with a term of not more than
30 days for underlying securities of the types described in clause (a)
above entered into with a bank meeting the qualifications described in
clause (b) above, (d) investments in commercial paper, maturing not more
than 270 days after the date of acquisition, issued by a corporation
(other than an Affiliate
-13-
Exhibit 10.1
or Subsidiary of the Company) organized under the laws of the United States of
America or any state thereof or any foreign country recognized by the United
States of America with a rating of "P-1" (or higher) according to Xxxxx'x
Investors Service, Inc. or "A-1" (or higher) according to Standard and Poor's
Corporation, (e) investments in municipal securities with a rating of "A" (or
such similar equivalent rating) or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the Securities Act
of 1933, as amended), and (f) Dutch auction-rate securities rated "AAA" (or such
similar equivalent rating) or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the Securities Act
of 1933, as amended).
"Permitted Management Ownership" shall mean no more than 30% of
the common stock of any Subsidiary of the Company created after the date
hereof that is owned by members of the management of such Subsidiary.
"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 that 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, any Reimbursement Obligation or any other amount under this
Agreement, any Note or any other Basic Document that is not paid when due
(whether at stated maturity, by acceleration, by optional or mandatory
prepayment 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% plus the Base Rate as in effect from time to
time plus the Applicable Margin for Base Rate Loans (provided that, if
the amount so in default is principal of a Eurodollar 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 such due date to but excluding the last day of
the Interest Period, 2% plus the interest rate for such Loan as provided
in Section 3.02(a)(ii) hereof and, thereafter, the rate provided for
above in this definition).
"Preferred Stock" shall mean preferred shares (including
preferred shares that are convertible into common shares of the Company)
issued by the Company from time to time that satisfies each of the
following requirements: (i) the aggregate net proceeds to the Company
from the issuance of such preferred shares shall not exceed $150,000,000;
(ii) the preferred shares shall not (without the consent of the Majority
Lenders) in any event be redeemable (or callable by the holder) prior to
March 31, 2001; (iii) the preferred shares shall constitute stockholders'
equity within the meaning of GAAP; and (iv) dividends shall not be
payable in cash in respect of such shares at a rate per annum in excess
of the applicable interest rate on Base Rate Loans at the time of the
issuance of such shares.
"Prime Rate" shall mean the rate of interest from time to time
announced by Chase at its principal office in New York City as its prime
commercial lending rate.
"Principal Office" shall mean the principal office of Chase in
New York City.
"Prior Year Excess Cash Flow" shall mean, at any time, Excess
Cash Flow for the period of four consecutive fiscal quarters ending with
the most recently ended fiscal quarter.
"Project" shall have the meaning specified in the definition of
"Specified Capital Expenditures" in this Section 1.01.
"Property" shall mean any right or interest in or to property of
any kind whatsoever, whether real, personal or mixed and whether tangible
or intangible.
"Quarterly Dates" shall mean the last Business Day of each March,
June, September and December in each
-14-
Exhibit 10.1
year, the first of which shall be the first such day after the date of this
Agreement.
"Reference Banks" shall mean Chase, Canadian Imperial Bank of Commerce
and The Bank of New York.
"Regulation A", "Regulation D", Regulation G", "Regulation U"
and "Regulation X" shall mean, respectively, Regulation A, Regulation D,
Regulation G, Regulation U and Regulation X of the Board of Governors of
the Federal Reserve System (or any successor), as the same may be
modified and supplemented and in effect from time to time.
"Regulatory Change" shall mean, with respect to any Lender, any
change after the date of this Agreement in 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 Lender of or under
any Federal, state or foreign law or regulations (whether or not having
the force of law and whether or not failure to comply therewith would be
unlawful) by any court or governmental or monetary authority charged with
the interpretation or administration thereof.
"Reimbursement Obligations" shall mean, at any time, the
obligations of the Company then outstanding, or which may thereafter
arise in respect of all Letters of Credit then outstanding, to reimburse
amounts paid by the Issuing Bank in respect of any drawings under a
Letter of Credit.
"Related Businesses" shall have the meaning specified in Section
9.05(d)(iv) of this Agreement.
"Release" shall mean any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration of Hazardous Materials into the indoor or outdoor environment,
including, without limitation, the movement of Hazardous Materials
through ambient air, soil, surface water, ground water, wetlands, land or
subsurface strata.
"Released Guarantors" shall mean Subsidiary Guarantors that have
been released, pursuant to Section 6.09 hereof, from their guarantee
obligations under Section 6 hereof.
"Rental Payments" shall mean, for any period, for the Company
and its Consolidated Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), all rental payments
(including minimum and percentage rent payments) made or accrued during
such period in respect of any operating lease or similar arrangement for
the use of Property by the Company or any Consolidated Subsidiary (net of
any sublease rental income), but excluding payments in respect of common
area maintenance, merchants' association dues, advertisements required
pursuant to such lease or similar arrangement and allocations for real
estate tax assessments.
"Revolving Credit Commitment" shall mean, for each Lender, the
obligation of such Lender to make Revolving Credit Loans in an aggregate
principal amount at any one time outstanding up to but not exceeding (a)
in the case of a Lender that is a party to this Agreement on the date
hereof, the amount set forth opposite the name of such Lender on the
signature pages hereof under the caption "Revolving Credit Commitment"
and (b) in the case of any other Lender, the aggregate amount of
Revolving Credit Commitments of other Lenders acquired by it pursuant to
Section 12.06 hereof. The original aggregate principal amount of the
Revolving Credit Commitments is $850,000,000.
"Revolving Credit Commitment Percentage" shall mean, with
respect to any Lender, the ratio of (a) the amount of the Revolving
Credit Commitment of such Lender to (b) the aggregate amount of the
Revolving Credit Commitments of all of the Lenders.
"Revolving Credit Commitment Termination Date" shall mean
November 18, 2002.
-15-
Exhibit 10.1
"Revolving Credit Loans" shall mean the loans provided for by
Section 2.01(a) hereof, which may be Base Rate Loans and/or Eurodollar
Loans.
"Revolving Credit Notes" shall mean the promissory notes
provided for by Section 2.08(a) hereof and all promissory notes delivered
in substitution or exchange therefor, in each case as the same shall be
modified and supplemented and in effect from time to time.
"Xxxxxx" shall mean Mr. Xxxxxxx Xxxxxx.
"Sale Lease-back" shall have the meaning specified in the
definition of "Specified Capital Expenditures" in this Section 1.01.
"Sale Lease-back Proceeds" shall mean the proceeds from the sale
by the Company or one of its Subsidiaries (other than an Unrestricted
Subsidiary or a Released Guarantor) of a Project to a lessor in a Sale
Lease-back.
"Security Agreement" shall mean a Pledge and Security Agreement,
delivered in connection with the Existing Credit Agreement, in the form
of Exhibit B-1 hereto between the Company and the Subsidiary Guarantors
and the Administrative Agent, as the same shall be modified and
supplemented and in effect from time to time.
"Security Agreement Amendment" shall mean an amendment to the
Security Agreement substantially in the form of Exhibit B-2 hereto.
"Security Documents" shall mean, collectively, the Security
Agreement and all Uniform Commercial Code financing statements required
by this Agreement or the Security Agreement to be filed with respect to
the security interests created pursuant to the Security Agreement.
"Senior Subordinated Debt" shall mean:
(a) the Outstanding Subordinated Notes, and
(b) Indebtedness of, or any Equity Issuance by, the
Company in an aggregate principal amount not to exceed
$210,000,000 incurred or issued in exchange for the Outstanding
Subordinated Notes (including fees and premiums payable in
connection with such exchange), so long as each of the terms of
such Indebtedness or Equity Issuance and each provision of the
agreements or instruments evidencing or governing such
Indebtedness or Equity Issuance (including, without limitation,
as to principal amount, interest or dividend rate, redemption,
representations, covenants, events of default and subordination)
are (x) substantially identical to those of the Outstanding
Subordinated Notes or (y) are more favorable to the Company than
those of the Outstanding Subordinated Notes and are not in any
material way adverse to the interests of the Administrative
Agent and the Lenders hereunder.
"Senior Subordinated Debt Documents" shall mean all documents
and agreements executed and delivered in connection with the issuance of
any Senior Subordinated Debt, including (without limitation) the
Indenture referred to in the definition of "Outstanding Subordinated
Notes" in this Section 1.01 and the promissory notes issued thereunder,
in each case, as the same shall, subject to Section 9.18 hereof, be
modified and supplemented and in effect from time to time.
"Significant Subsidiary" shall mean, with respect to the
Company, (a) each Subsidiary that is a "Significant Subsidiary" of the
Company within the meaning of Rule 1-02 of Regulation S-X of the
Securities and Exchange Commission, and (b) each Subsidiary (other than
any Unrestricted Subsidiary or Released Guarantor) the principal business
of which is a retail bookstore business.
-16-
Exhibit 10.1
"Specified Capital Expenditures" shall mean expenditures made by
the Company or its Subsidiaries to acquire and develop real property by
building retail bookstores thereon (each such development, a "Project")
with a view to transferring title to such developed real property to
another Person (other than an Affiliate or Subsidiary of the Company)
within 24 months after the acquisition of such real property and
concurrently leasing it back from such Person (a "Sale Lease-back"),
provided that if any Project has not been made the subject of a Sale
Lease-back within 24 months after the first such expenditures are made
with respect to such Project, all of such expenditures made with respect
to such Project shall constitute Capital Expenditures (and be deemed to
have been made at the later of the end of such 24-month period and the
time actually made) for all purposes of this Agreement (and shall not
constitute Specified Capital Expenditures) and shall be:
(a) subject to the limitations in Section 9.11(a) hereof, and
(b) included in Capital Expenditures for purposes of
clause (a) of the definition of "Excess Cash Flow" in Section
1.01 hereof,
in all cases until such time (if any) as such Project is made the subject
of a Sale Lease-back (at which time such expenditures shall again
constitute Specified Capital Expenditures).
"Subsidiary" shall mean, with respect to any Person, any
corporation, partnership or other entity of which at least a majority of
the securities or other ownership interests having by the terms thereof
ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions of such corporation,
partnership or other entity (irrespective of whether or not at the time
securities or other ownership interests of any other class or classes of
such corporation, partnership or other entity 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 Subsidiaries of such Person or by such Person and one or more
Subsidiaries of such Person.
"Swingline Commitment" shall mean the obligation of the
Swingline Bank to make Swingline Loans in an aggregate amount at any one
time outstanding up to the lesser of $50,000,000 and the then aggregate
principal amount of the Revolving Credit Commitments as then in effect.
"Swingline Loans" shall mean the loans provided for by Section 2.01(b)
hereof, which shall be Base Rate Loans.
"Swingline Note" shall mean the promissory note provided for by
Section 2.08(b) hereof and all promissory notes delivered in substitution
or exchange therefor, in each case as the same shall be modified and
supplemented and in effect from time to time.
"Type" shall have the meaning assigned to such term in Section 1.03
hereof.
"Unrelated Persons" shall mean any Person other than (a) Xxxxxx,
his wife, his siblings, his children or any trust established for the
benefit of Xxxxxx, his wife, his siblings or his children and (b) any
Person directly or indirectly effectively controlled (whether through
legal or beneficial ownership of equity interests in such Person, by
contract or otherwise) by, or by any estate of, any of the Persons
referred to in clause (a).
"Unrestricted Subsidiary" shall mean a Subsidiary acquired or
established by the Company or any Subsidiary of the Company pursuant to
Section 9.05(d)(iv) hereof and designated as an "Unrestricted Subsidiary"
by a notice from the Company to the Lenders no later than three Business
Days prior to the effective date for such designation.
"U.S. Person" shall have the meaning given to that term in Section
5.07(a) hereof.
-17-
Exhibit 10.1
"Voting Shares" shall mean shares of capital stock of the
Company, of any class or classes (however designated) (a) having by the
terms thereof voting power to elect the members of the board of directors
of the Company or (b) convertible into shares of capital stock of the
Company of the type described in the foregoing clause (a).
"Wholly Owned Subsidiary" shall mean, with respect to any
Person, any corporation, partnership or other entity of which all of the
equity securities or other ownership interests (other than, in the case
of a corporation, directors' qualifying shares) are owned or controlled
by such Person or one or more Wholly Owned Subsidiaries of such Person.
1.02 Accounting Terms and Determinations
(a) Except as otherwise expressly provided herein, (i) all
accounting terms used herein shall be interpreted, (ii) all financial
statements and all certificates and reports as to financial matters
required to be delivered to the Lenders hereunder shall (unless otherwise
disclosed to the Lenders in writing at the time of delivery thereof in
the manner described in subsection (b) below) be prepared and (iii) all
calculations made for the purposes of determining compliance with this
Agreement shall (except as otherwise expressly provided herein) be made
in accordance with or by application of generally accepted accounting
principles applied on a basis consistent with those used in the
preparation of the most recent financial statements furnished to the
Lenders hereunder (or, prior to the delivery of the first financial
statements under Section 9.01 hereof, the audited financial statements as
of February 1, 1997, referred to in Section 8.02 hereof) unless (x) the
Company shall notify the Lenders of its objection thereto at the time of
delivery of any financial statements pursuant to Section 9.01 hereof or
(y) the Majority Lenders shall notify the Company (through the
Administrative Agent) of their objection within 30 days after the
delivery of any such financial statements, in either of which events such
interpretations, statements, certificates, reports and calculations shall
be made in accordance with, or by application of, generally accepted
accounting principles on a basis consistent with those used in the
preparation of the most recent financial statements as to which no such
objection shall have been made (or, prior to the delivery of the first
financial statements under Section 9.01 hereof, the audited financial
statements as at February 1, 1997, referred to in Section 8.02 hereof).
(b) The Company shall deliver to the Lenders at the same time as
the delivery of any annual or quarterly financial statement under Section
9.01 hereof (i) 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 paragraph (a) above and (ii)
reasonable estimates of the difference between such statements arising as
a consequence thereof.
(c) The Company will not, and will not permit any of its
Subsidiaries (other than an Unrestricted Subsidiary or a Released
Guarantor) to, change the last day of its fiscal year from the Saturday
falling on or nearest to January 31 of each year, or the last days of the
first three fiscal quarters in each of its fiscal years from the Saturday
falling on or nearest to the last day of April, July and October of each
year, respectively.
1.03 Types. The "Type" of a Revolving Credit Loan refers to whether
such Revolving Credit Loan is a Base Rate Loan or a Eurodollar Loan, each of
which constitutes a Type of Revolving Credit Loan.
Section 2. Commitments, Loans, Notes and Prepayments.
2.01 Loans
(a) Revolving Credit Loans. Each Lender severally agrees, on the
terms and conditions of this Agreement,
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Exhibit 10.1
to make loans to the Company in Dollars during the period from and including the
Closing Date to but not including the Revolving Credit Commitment Termination
Date in an aggregate principal amount at any one time outstanding up to but not
exceeding the amount of the Revolving Credit Commitment of such Lender as in
effect from time to time, provided that in no event shall the aggregate
principal amount of all Revolving Credit Loans, together with the aggregate
amount of all Letter of Credit Liabilities and the aggregate amount of all
Swingline Loans, exceed the aggregate amount of the Revolving Credit Commitments
as in effect from time to time. Subject to the terms and conditions of this
Agreement, during such period the Company may borrow, repay and reborrow the
amount of the Revolving Credit Commitments by means of Base Rate Loans and
Eurodollar Loans and may Convert Revolving Credit Loans of one Type into
Revolving Credit Loans of the other Type (as provided in Section 2.09 hereof) or
Continue Revolving Credit Loans that are Eurodollar Loans (as provided in
Section 2.09 hereof).
(b) Swingline Loans. The Swingline Bank hereby agrees, on the
terms and conditions of this Agreement, to make Swingline Loans to the
Company in Dollars during the period from and including the date hereof
to but not including the Revolving Credit Commitment Termination Date in
an aggregate principal amount at any one time outstanding up to but not
exceeding the Swingline Commitment; provided that the aggregate unpaid
principal amount of all Swingline Loans and all Revolving Credit Loans,
together with the aggregate amount of all Letter of Credit Liabilities,
at any one time outstanding may not exceed the aggregate amount of the
Revolving Credit Commitments. Subject to the terms of this Agreement, the
Company may borrow, repay and reborrow the amount of the Swingline
Commitment by means of Swingline Loans.
(c) Limit on Eurodollar Loans. No more than 25 separate Interest
Periods in respect of Eurodollar Loans from each Lender may be
outstanding at any one time.
2.02 Borrowings of Loans
(a) Revolving Credit Loans. The Company shall give the
Administrative Agent (which shall promptly notify the Lenders) notice of
each borrowing of Revolving Credit Loans hereunder as provided in Section
4.05 hereof. Not later than 2:00 p.m. New York time on the date specified
for each borrowing of Revolving Credit Loans hereunder, each Lender shall
make available the amount of the Revolving Credit Loan or Revolving
Credit Loans to be made by it on such date to the Administrative Agent at
the Principal Office, in Dollars and immediately available funds, for
account of the Company. The amount so received by the Administrative
Agent shall, subject to the terms and conditions of this Agreement, be
made available by the Administrative Agent 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.
(b) Swingline Loans.
(i) The Company shall, not later than 3:00 p.m. New
York time on the date on which the Company proposes to borrow a
Swingline Loan, give the Administrative Agent and the Swingline
Bank notice of such borrowing (a "Swingline Borrowing Notice"),
which notice shall be irrevocable and effective only upon
receipt by the Swingline Bank and shall specify the principal
amount of the Swingline Loan to be borrowed (which shall be at
least $1,500,000). Not later than 4:00 p.m. New York time, on
the date specified in each Swingline Borrowing Notice hereunder,
the Swingline Bank shall, subject to the terms of this
Agreement, make the amount of the Swingline Loan to be made by
it on such date available to the Company on such date by
depositing the same, in immediately available funds, in an
account of the Company maintained with the Swingline Bank at its
principal office in New York City designated by the Company.
(ii) The Company hereby irrevocably authorizes and
empowers (which power is coupled with an interest) the Swingline
Bank to deliver, at any time and from time to time, on behalf of
the Company, to the Administrative Agent under Section 2.02(a)
hereof a notice of borrowing of Revolving Credit Loans that are
Base Rate Loans in an amount equal to the then unpaid principal
amount of Swingline Loans.
-19-
Exhibit 10.1
(iii) In the event that the power of the Swingline Bank
to give such a notice of borrowing on behalf of the Company is
terminated for any reason whatsoever (including, without
limitation, a termination resulting from the occurrence of an
event specified in clause (f) or (g) of Section 10 hereof with
respect to the Company), or the Swingline Bank is otherwise
precluded for any reason whatsoever from giving a notice of
borrowing on behalf of the Company as provided in the preceding
sentence, each Lender shall, upon notice from the Swingline
Bank, promptly purchase from the Swingline Bank a participation
in (or, if and to the extent specified by the Swingline Bank, a
direct interest in) such Swingline Loan in the amount of the
Base Rate Loan it would have been obligated to make pursuant to
such notice of borrowing. Each Lender shall, not later than 2:00
p.m. New York time on the Business Day on which such notice is
given (if such notice is given by 10:00 a.m. New York time) or
noon New York time on the next succeeding Business Day (if such
notice is given after 10:00 a.m. New York time), make available
the amount of the Base Rate Loan to be made by it (or the amount
of the participation or direct interest to be purchased by it,
as the case may be) to the Administrative Agent at the account
specified in Section 2.02(a) hereof and the amount so received
by the Administrative Agent shall be made available to the
Swingline Bank by depositing the same, in immediately available
funds, in an account of the Swingline Bank maintained at the
principal office of the Swingline Bank in New York City
designated by the Swingline Bank. Promptly following its receipt
of any payment in respect of a Swingline Loan, the Swingline
Bank shall pay to each Lender that has acquired a participation
in such Swingline Loan such Lender's proportionate share of such
payment. Anything in this Agreement to the contrary
notwithstanding (including, without limitation, in Section 7.02
hereof), the obligation of each Lender to make its Base Rate
Loan (or purchase its participation or direct interest in the
Swingline Loan, as the case may be) pursuant to this Section
2.02(b)(iii) is unconditional under any and all circumstances
whatsoever and shall not be subject to set-off, counterclaim or
defense to payment that such Lender may have or have had against
the Company, the Administrative Agent, the Swingline Bank or any
other Lender and, without limiting any of the foregoing, shall
be unconditional irrespective of (A) the occurrence of any
Default, (B) the financial condition of the Company, any
Subsidiary Guarantor, the Administrative Agent, the Swingline
Bank or any other Lender or (C) the termination or cancellation
of the Revolving Credit Commitments. The Company agrees that any
Lender so purchasing a participation (or direct interest) in
such Swingline Loan may exercise all rights of set-off, bankers'
lien, counterclaim or similar rights with respect to such
participation as fully as if such Lender were a direct holder of
a Swingline Loan in the amount of such participation; provided
that no Lender shall be obligated to purchase participations or
direct interests in any Swingline Loan pursuant to this Section
2.02(b)(iii) if such Swingline Loan was made by the Swingline
Bank after it received notice from the Administrative Agent of
the occurrence and continuance of a Default.
(iv) The Administrative Agent shall promptly furnish to
the Swingline Bank copies of each notice of the existence of any
Default or Event of Default received by it from any Lender or
any Obligor.
2.03 Letters of Credit. Subject to the terms and conditions of this
Agreement, the Revolving Credit Commitments may be utilized, upon the request
of the Company, in addition to the Loans provided for by Section 2.01(a)
hereof, by the issuance by the Issuing Bank of letters of credit (together
with any letters of credit issued by the Issuing Bank under the Existing
Credit Agreement (the "Existing Chase Letters of Credit"), collectively,
"Letters of Credit") for account of the Company or any of its Subsidiaries
(other than an Unrestricted Subsidiary or a Released Guarantor) as specified
by the Company, and the Issuing Bank agrees to issue Letters of Credit on the
terms and conditions set forth herein, provided that in no event shall (i) the
aggregate amount of all Letter of Credit Liabilities, together with the
aggregate principal amount of all Revolving Credit Loans and Swingline
Loans outstanding, exceed the aggregate amount of the Revolving Credit
Commitments as in effect from time to time, (ii) the outstanding
aggregate amount of all Letter of Credit Liabilities exceed $45,000,000
and (iii) the expiration date of any Letter of Credit extend beyond the
earlier of the Revolving Credit Commitment Termination Date and the date
12 months following the issuance of such Letter of Credit. The following
additional provisions shall apply to Letters of Credit:
-20-
Exhibit 10.1
(a) The Company shall give the Administrative Agent at
least three Business Days' irrevocable prior notice (effective
upon receipt) specifying the Business Day (which shall be no
later than 30 days preceding the Revolving Credit Commitment
Termination Date) each Letter of Credit is to be issued and the
account party or parties therefor and describing in reasonable
detail the proposed terms of such Letter of Credit (including
the beneficiary thereof) and the nature of the transactions or
obligations proposed to be supported thereby (including whether
such Letter of Credit is to be a commercial letter of credit or
a standby letter of credit). Upon receipt of any such notice,
the Administrative Agent shall advise the Issuing Bank and each
Lender of the contents thereof. Any amendment, modification or
supplement to any Letter of Credit hereunder shall be made with
prior notice to the Administrative Agent and in accordance with
clause (k) of this Section 2.03.
(b) On each day during the period commencing with the
issuance by the Issuing Bank of any Letter of Credit (or, in the
case of any Existing Chase Letter of Credit, the Closing Date)
and until such Letter of Credit shall have expired or been
terminated, the Revolving Credit Commitment of each Lender shall
be deemed to be utilized for all purposes of this Agreement in
an amount equal to such Lender's Revolving Credit Commitment
Percentage of the then undrawn face amount of such Letter of
Credit. Each Lender (other than the Issuing Bank) agrees that,
upon the issuance of any Letter of Credit hereunder, it shall
automatically and without any further action on the part of the
Administrative Agent, the Issuing Bank or such Lender acquire a
participation in the Issuing Bank's liability under such Letter
of Credit in an amount equal to such Lender's Revolving Credit
Commitment Percentage of such liability, and each Lender (other
than the Issuing Bank) thereby shall absolutely, unconditionally
and irrevocably assume, as primary obligor and not as surety,
and shall be unconditionally obligated to the Issuing Bank to
pay and discharge when due, its Revolving Credit Commitment
Percentage of the Issuing Bank's liability under such Letter of
Credit.
(c) Upon receipt from the beneficiary of any Letter of
Credit of any demand for payment under such Letter of Credit,
the Issuing Bank shall promptly notify the Company (through the
Administrative Agent) of the amount to be paid by the Issuing
Bank as a result of such demand and the date on which payment is
to be made by the Issuing Bank to such beneficiary in respect of
such demand. Notwithstanding the identity of the account party
of any Letter of Credit, the Company hereby unconditionally
agrees to pay and reimburse the Administrative Agent for account
of the Issuing Bank for the amount of each demand for payment
under such Letter of Credit at or prior to the date on which
payment is to be made by the Issuing Bank to the beneficiary
thereunder, without presentment, demand, protest or other
formalities of any kind.
(d) Forthwith upon its receipt of a notice referred to
in paragraph (c) of this Section 2.03, the Company shall advise
the Administrative Agent whether or not the Company intends to
borrow hereunder to finance its obligation to reimburse the
Issuing Bank for the amount of the related demand for payment
and, if it does, submit a notice of such borrowing as provided
in Section 4.05 hereof. In the event that the Company fails to
so advise the Administrative Agent, or if the Company fails to
reimburse the Issuing Bank for a demand for payment under a
Letter of Credit by the date of such payment, the Administrative
Agent shall give each Lender prompt notice of the amount of the
demand for payment, specifying such Lender's Revolving Credit
Commitment Percentage of the amount of the related demand for
payment.
(e) Each Lender (other than the Issuing Bank) shall pay
to the Administrative Agent for account of the Issuing Bank at
the Principal Office in Dollars and in immediately available
funds, the amount of such Lender's Revolving Credit Commitment
Percentage of any payment under a Letter of Credit upon notice
by the Issuing Bank (through the Administrative Agent) to such
Lender requesting such payment and specifying such amount. Each
such Lender's obligation to make such payments to the
Administrative Agent for account of the Issuing Bank under this
paragraph (e), and the Issuing Bank's right to receive the same,
shall be absolute and unconditional and shall not be affected by
any circumstance whatsoever, including, without limitation, the
failure of any other Lender to make its payment under this
paragraph (e), the
-21-
Exhibit 10.1
financial condition of the Company (or any other account party), the
existence of any Default or the termination of the Revolving Credit
Commitments (provided that the relevant Letter of Credit shall have
been issued by the Issuing Bank prior to the Revolving Credit
Commitment Termination Date). Each such payment to the Issuing Bank
shall be made without any offset, abatement, withholding or reduction
whatsoever.
(f) Upon the making of each payment by a Lender to the
Issuing Bank pursuant to paragraph (e) above in respect of any
Letter of Credit, such Lender shall, automatically and without
any further action on the part of the Administrative Agent, the
Issuing Bank or such Lender, acquire (i) a participation in an
amount equal to such payment in the Reimbursement Obligation
owing to the Issuing Bank by the Company hereunder and under the
Letter of Credit Documents relating to such Letter of Credit and
(ii) a participation in a percentage equal to such Lender's
Revolving Credit Commitment Percentage in any interest or other
amounts payable by the Company hereunder and under such Letter
of Credit Documents in respect of such Reimbursement Obligation
(other than the commissions, charges, costs and expenses payable
to the Issuing Bank pursuant to paragraph (g) of this Section
2.03). Upon receipt by the Issuing Bank from or for account of
the Company of any payment in respect of any Reimbursement
Obligation or any such interest or other amount (including by
way of setoff or application of proceeds of any collateral
security) the Issuing Bank shall promptly pay to the
Administrative Agent for account of each Lender entitled
thereto, such Lender's Revolving Credit Commitment Percentage of
such payment, each such payment by the Issuing Bank to be made
in the same money and funds in which received by the Issuing
Bank. In the event any payment received by the Issuing Bank and
so paid to the Lenders hereunder is rescinded or must otherwise
be returned by the Issuing Bank, each Lender shall, upon the
request of the Issuing Bank (through the Administrative Agent),
repay to the Issuing Bank (through the Administrative Agent) the
amount of such payment paid to such Lender, with interest at the
rate specified in paragraph (j) of this Section 2.03.
(g) The Company shall pay to the Issuing Bank an
issuance fee on the daily average undrawn amount of each Letter
of Credit for the period from and including the date of issuance
of such Letter of Credit (or, in the case of any Existing Chase
Letter of Credit, from and including the Closing Date) to and
including the date such Letter of Credit is drawn in full,
expires or is terminated, at a rate per annum equal to
Applicable Margin for Eurodollar Loans (without giving effect to
clause (ii) of the definition of "Applicable Margin") as in
effect from time to time (such issuance fee to be
non-refundable, to be paid in arrears on each Quarterly Date and
on the Revolving Credit Commitment Termination Date and to be
calculated, for any day, after giving effect to any payments
made under such Letter of Credit on such day). The Issuing Bank
shall pay to the Administrative Agent for account of each Lender
(other than the Issuing Bank), from time to time at reasonable
intervals (but in any event at least quarterly), but only to the
extent actually received from the Company, an amount equal to
such Lender's Revolving Credit Commitment Percentage of all such
fees in respect of each Letter of Credit (including, for the
period from and after the Closing Date, each Chase Letter of
Credit), including any such fee in respect of any period of any
renewal or extension thereof. In addition, the Company shall pay
to the Issuing Bank a fronting fee on the daily average undrawn
amount of each Letter of Credit for the period from and
including the date of issuance of such Letter of Credit (or, in
the case of any Existing Chase Letter of Credit, from and
including the Closing Date) to and including the date such
Letter of Credit is drawn in full, expires or is terminated, at
a rate per annum equal to 1/10 of 1% (such fronting fee shall be
non-refundable, shall be paid in arrears on each Quarterly Date
and on the Revolving Credit Commitment Termination Date and
shall be calculated, for any day, after giving effect to any
payments made under such Letter of Credit on such day) together
with all commissions, charges, costs and expenses in the amounts
customarily charged by the Issuing Bank from time to time in
like circumstances with respect to the issuance of each Letter
of Credit and drawings and other transactions relating thereto.
(h) Promptly following the end of each calendar quarter, the
Issuing Bank shall deliver (through
-22-
Exhibit 10.1
the Administrative Agent) to each Lender and the Company a notice
describing the aggregate amount of all Letters of Credit issued during
such quarter. Upon the request of any Lender from time to time, the
Issuing Bank shall deliver any other information reasonably requested
by such Lender with respect to each Letter of Credit then outstanding.
(i) The issuance by the Issuing Bank of each Letter of
Credit shall, in addition to the conditions precedent set forth
in Section 7 hereof, be subject to the conditions precedent that
(i) such Letter of Credit shall be in such form and contain such
terms as shall be satisfactory to the Issuing Bank consistent
with its then current practices and procedures with respect to
letters of credit of the same type, and shall support such
transactions as shall be consistent with the Company's ordinary
course of business and (ii) the Company shall have executed and
delivered such applications, agreements and other instruments
relating to such Letter of Credit as the Issuing Bank shall have
reasonably requested consistent with its then current practices
and procedures with respect to letters of credit of the same
type, provided that in the event of any conflict between any
such application, agreement or other instrument and the
provisions of this Agreement or any Security Document, the
provisions of this Agreement and the Security Documents shall
control.
(j) To the extent that any Lender fails to pay any
amount required to be paid pursuant to paragraph (e) or (f) of
this Section 2.03 on the due date therefor, such Lender shall
pay interest to the Issuing Bank (through the Administrative
Agent) on such amount from and including such due date to but
excluding the date such payment is made (i) during the period
from and including such due date to but excluding the date three
Business Days thereafter, at a rate per annum equal to the
Federal Funds Rate (as in effect from time to time) and (ii)
thereafter, at a rate per annum equal to the Base Rate (as in
effect from time to time) plus 2%.
(k) The issuance by the Issuing Bank of any
modification or supplement to any Letter of Credit hereunder
shall be subject to the same conditions applicable under this
Section 2.03 to the issuance of new Letters of Credit, and no
such modification or supplement shall be issued hereunder unless
either (i) the respective Letter of Credit affected thereby
would have complied with such conditions had it originally been
issued hereunder in such modified or supplemented form or (ii)
the Majority Lenders shall have consented thereto.
(l) Each Lender agrees that on the Closing Date it
shall automatically acquire a participation in the Issuing
Bank's liability under each Existing Chase Letter of Credit in
an amount equal to such Lender's Revolving Credit Commitment
Percentage of such liability, and each Lender thereby shall
absolutely, unconditionally and irrevocably assume, as primary
obligor and not as surety, and shall be unconditionally
obligated to the Issuing Bank to pay and discharge when due, its
Commitment Percentage of the Issuing Bank's liability under each
Existing Chase Letter of Credit.
The Company hereby indemnifies and holds harmless each Lender (including
the Issuing Bank) and the Administrative Agent from and against any and
all claims and damages, losses, liabilities, costs or expenses which such
Lender or the Administrative Agent may incur (or which may be claimed
against such Lender or the Administrative Agent by any Person whatsoever)
by reason of or in connection with the execution and delivery or transfer
of or payment or refusal to pay by the Issuing Bank under any Letter of
Credit; provided that the Company shall not be required to indemnify any
Lender or the Administrative Agent for any claims, damages, losses,
liabilities, costs or expenses to the extent, but only to the extent,
caused by (x) the willful misconduct or gross negligence of the Issuing
Bank in determining whether a request presented under any Letter of
Credit complied with the terms of such Letter of Credit or (y) the
Issuing Bank's failure to pay under any Letter of Credit after the
presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit. Nothing in this Section 2.03 is
intended to limit the other obligations of the Company, any Lender or the
Administrative Agent under this Agreement.
-23-
Exhibit 10.1
2.04 Changes of Commitments
(a) The aggregate amount of the Revolving Credit Commitments and
the Swingline Commitment shall be automatically reduced to zero on the
Revolving Credit Commitment Termination Date.
(b) The Company shall have the right at any time or from time to
time (i) so long as no Revolving Credit Loans, Swingline Loans or Letter
of Credit Liabilities are outstanding hereunder, to terminate the
Revolving Credit Commitments in full and (ii) to reduce the aggregate
unused amount of the Revolving Credit Commitments (for which purpose use
of the Revolving Credit Commitments shall be deemed to include the
aggregate amount of Letter of Credit Liabilities and Swingline Loans);
provided that (x) the Company shall give notice of each such termination
or reduction as provided in Section 4.05 hereof and (y) each partial
reduction shall be in an aggregate amount equal to $5,000,000 or any
integral multiple of $5,000,000 in excess thereof.
(c) The Company shall have the right at any time, so long as no
Swingline Loans are outstanding, to terminate the Swingline Commitment
upon not less than three Business Days' prior notice to the
Administrative Agent and the Swingline Bank, which notice shall specify
the effective date thereof.
(d) The Commitments once terminated or reduced may not be
reinstated.
2.05 Commitment Fees; Excess Usage Fee
(a) The Company shall pay to the Administrative Agent for
account of each Lender a commitment fee on the daily average unused
amount of the Revolving Credit Commitment of such Lender (for which
purpose the aggregate amount of any Letter of Credit Liabilities and the
aggregate amount of the Swingline Commitment (whether or not utilized)
shall be deemed to be a pro rata (based on the Revolving Credit
Commitments) use of each Lender's Revolving Credit Commitment), for the
period from and including the Closing Date to but not including the
earlier of the date the Revolving Credit Commitments are terminated and
the Revolving Credit Commitment Termination Date, at a rate per annum
equal to the Applicable Commitment Fee Percentage. Accrued commitment
fees payable to the Lenders in respect of the Revolving Credit
Commitments shall be payable on each Quarterly Date and on the earlier of
the date the Revolving Credit Commitments are terminated in full and the
Revolving Credit Commitment Termination Date.
(b) The Company shall pay to the Swingline Bank a commitment fee
on the daily average unused amount of the Swingline Commitment, for the
period from and including the Closing Date to but not including the
earlier of the date the Swingline Commitment is terminated in full and
the Revolving Credit Commitment Termination Date, at a rate per annum
equal to the Applicable Commitment Fee Percentage. The accrued commitment
fee payable to the Swingline Bank shall be payable on each Quarterly Date
and on the earlier of the date the Swingline Commitment is terminated in
full and the Revolving Credit Commitment Termination Date.
(c) To the extent that the average principal amount of
Eurodollar Loans outstanding during any fiscal quarter of the Company (or
the portion of the fiscal quarter that occurs prior to the date that the
Revolving Credit Commitments are terminated or expire) exceeds 50% of the
aggregate amount of the Revolving Credit Commitments on the last day of
such fiscal quarter, the Company shall pay to the Administrative Agent,
for the account of the Lenders, an excess usage fee on such excess at a
rate per annum equal to 0.125%. Accrued excess usage fee shall be payable
by the third Business Day following the last Business Day of each fiscal
quarter of the Company.
2.06 Lending Offices. The Revolving Credit Loans of each Type made by
each Lender shall be made and maintained at such Lender's Applicable Lending
Office for Revolving Credit Loans of such Type. The Swingline Loans shall be
made and maintained at the Applicable Lending Office of the Swingline Bank for
Swingline Loans.
2.07 Several Obligations; Remedies Independent. The failure of any
Lender (a "Defaulting Lender") to
-24-
Exhibit 10.1
make any Loan to be made by it on the date specified therefor shall not relieve
any other Lender of its obligation to make any Loan to be made by it on such
date, but neither any Lender nor the Administrative Agent shall be responsible
for the failure of any Defaulting Lender to make a Loan to be made by such
Defaulting Lender, and no Lender shall have any obligation to the Administrative
Agent or any other Lender for the failure by such Defaulting Lender to make any
Loan required to be made by such Defaulting Lender. The amounts payable by the
Company at any time hereunder and under the Notes to each Lender shall be a
separate and independent debt and each Lender 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 Lender or the Administrative Agent to consent to, or
be joined as an additional party in, any proceedings for such purposes.
2.08 Notes
(a) The Revolving Credit Loans made by each Lender shall be
evidenced by a single promissory note of the Company substantially in the
form of Exhibit A-1 hereto, dated the date hereof, payable to the order
of such Lender in a principal amount equal to the amount of its Revolving
Credit Commitment as originally in effect and otherwise duly completed.
(b) The Swingline Loans made by the Swingline Bank shall be
evidenced by a single promissory note of the Company in substantially the
form of Exhibit A-2 hereto, dated the date of this Agreement, payable to
the Swingline Bank in a principal amount equal to the amount of the
Swingline Commitment as originally in effect and otherwise duly
completed. The date and amount of each Swingline Loan and each payment
made on account of the principal thereof, shall be recorded by the
Swingline Bank on its books and, prior to any transfer of the Swingline
Note, endorsed by the Swingline Bank on the schedule attached to such
Swingline Note or any continuation thereof; provided that the failure by
the Swingline Bank to make any such recordation or endorsement shall not
affect any of the obligations of the Company hereunder or under the
Swingline Note to make a payment when due.
(c) The date, amount, Type, interest rate and duration of
Interest Period (if applicable) of each Revolving Credit Loan made by
each Lender to the Company, and each payment made on account of the
principal thereof, shall be recorded by such Lender on its books and,
prior to any transfer of the Revolving Credit Note evidencing Loans held
by it, endorsed by such Lender on the schedule attached to such Revolving
Credit Note or any continuation thereof; provided that the failure of
such Lender to make any such recordation or endorsement shall not affect
the obligations of the Company to make a payment when due of any amount
owing hereunder or under such Revolving Credit Note in respect of the
Revolving Credit Loans.
(e) No Lender shall be entitled to have its Revolving Credit
Notes 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 Lender's Commitments, Revolving Credit Loans and
Revolving Credit Notes pursuant to Section 12.06(b) hereof.
(f) The Swingline Bank shall not be entitled to have its
Swingline Note subdivided, by exchange for promissory notes of lesser
denominations or otherwise, except in connection with a permitted
assignment of all of any portion of the Swingline Bank's Swingline
Commitments, Swingline Loans and Swingline Note pursuant to Section
12.06(g) hereof.
2.09 Optional Prepayments and Conversions or Continuations of Loans.
Subject to Section 4.04 hereof, the Company shall have the right to prepay
Loans, or to Convert Revolving Credit Loans of one Type into Revolving Credit
Loans of another Type or Continue Revolving Credit Loans of one Type as
Revolving Credit Loans of the same Type, at any time or from time to time,
provided that the Company shall give the Administrative Agent notice of each
such prepayment, Conversion or Continuation as provided in Section 4.05 hereof
(and, upon the prepayment date specified in any such notice of prepayment, the
amount to be prepaid shall become due and payable hereunder). Notwithstanding
the foregoing, and without limiting the rights and remedies of the Lenders under
Section 10 hereof,
-25-
Exhibit 10.1
in the event that any Event of Default shall have occurred and be continuing,
the Administrative Agent may (and at the request of the Majority Lenders shall)
suspend the right of the Company to borrow any Revolving Credit Loan as a
Eurodollar Loan, to Convert any Revolving Credit Loan into a Eurodollar Loan or
to Continue any Revolving Credit Loan as a Eurodollar Loan, in which event all
Eurodollar Loans then outstanding shall be Converted (on the last day(s) of the
respective Interest Periods therefor) into Base Rate Loans.
2.10 Mandatory Prepayments
(a) Sale of Assets. Without limiting the obligation of the
Company to obtain the consent of the Majority Lenders pursuant to Section
9.05 hereof to any Disposition not otherwise permitted hereunder, not
later than five Business Days prior to the occurrence of any Disposition,
the Company will deliver to the Lenders a statement, certified by a
senior officer of the Company, in form and detail reasonably satisfactory
to the Administrative Agent, of the anticipated amount of the Net
Available Proceeds of such Disposition and no later than the Business Day
next succeeding such Disposition, to the extent the Net Available
Proceeds thereof (when taken together with the Net Available Proceeds of
all prior Dispositions for which a prepayment has not yet been made under
this Section 2.10(a)) shall exceed $5,000,000, the Company shall prepay
the Revolving Credit Loans in an aggregate amount, and the Revolving
Credit Commitments shall be automatically reduced by an amount, equal to
100% of the Net Available Proceeds of such Disposition (together with
100% of the Net Available Proceeds of all prior Dispositions as to which
prepayment has not yet been made under this Section 2.10(a)).
(b) Equity Issuance. Upon any Equity Issuance (other than any
issuance of Senior Subordinated Debt) that occurs during the continuance
of any Default, the Company shall prepay the Revolving Credit Loans in an
aggregate amount equal to the Applicable Percentage of the Net Available
Proceeds thereof.
(c) Excess Cash Flow. Not later than the date 90 days after the
end of each fiscal year of the Company (beginning with the fiscal year
commencing on February 1, 1998) for which Excess Cash Flow is greater
than $25,000,000 (but only if a Default is continuing on such 90th day),
the Company shall prepay the Revolving Credit Loans in an aggregate
amount equal to 50% of Excess Cash Flow for such fiscal year.
Section 3. Payments of Principal and Interest.
3.01 Repayment of Loans
(a) Revolving Credit Loans. The Company hereby promises to pay
to the Administrative Agent for account of each Lender the entire
outstanding principal amount of such Lender's Revolving Credit Loans, and
each Revolving Credit Loan shall mature, on the Revolving Credit
Commitment Termination Date.
(b) Swingline Loans. The Company will pay (or cause to be paid)
to the Swingline Bank the principal of each Swingline Loan at or prior
to, and each Swingline Loan shall mature at, 1:00 p.m. New York time on
the Business Day immediately preceding the Revolving Credit Commitment
Termination Date.
3.02 Interest
(a) Revolving Credit Loans. The Company hereby promises to pay
to the Administrative Agent for account of each Lender interest on the
unpaid principal amount of each Revolving Credit Loan made by such Lender
for the period from and including the date of such Revolving Credit Loan
to but excluding the date such Revolving Credit Loan shall be paid in
full, at the following rates per annum:
(i) during such periods as such Revolving Credit Loan
is a Base Rate Loan, the Base Rate (as in
-26-
Exhibit 10.1
effect from time to time) plus the Applicable Margin; and
(ii) during such periods as such Revolving Credit Loan
is a Eurodollar Loan, for each Interest Period relating thereto,
the Eurodollar Rate for such Revolving Credit Loan for such
Interest Period plus the Applicable Margin.
Notwithstanding the foregoing, the Company hereby promises to pay to the
Administrative Agent for account of each Lender interest at the
applicable Post-Default Rate on any principal of any Revolving Credit
Loan made by such Lender, on any Reimbursement Obligation held by such
Lender and on any other amount payable by the Company hereunder or under
the Revolving Credit Note held by such Lender to or for account of such
Lender, which shall not be paid in full when due (whether at stated
maturity, by acceleration, by mandatory prepayment 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 Revolving Credit Loan
shall be payable (i) in the case of a Base Rate Loan, quarterly on the
Quarterly Dates, (ii) in the case of a Eurodollar Loan, on the last day
of each 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, and (iii) in the case of any Revolving Credit Loan,
upon the payment or prepayment thereof or the Conversion of such
Revolving Credit Loan to a Revolving Credit Loan of another Type (but
only on the principal amount so paid, prepaid or Converted), except that
interest payable at the Post-Default Rate shall be payable from time to
time on demand of the Lenders for whose account such interest is payable.
(b) Swingline Loans. The Company will pay (or cause to be paid)
to the Swingline Bank interest on the unpaid principal amount of each
Swingline Loan for the period from and including the day such Swingline
Loan is made to but excluding the date such Swingline Loan is paid in
full at the Federal Funds Rate (as in effect from time to time) plus 3/4
of 1%. Accrued interest on each Swingline Loan shall be payable (i)
quarterly on the Quarterly Dates and (ii) upon the payment or prepayment
thereof (but only on the portion paid or prepaid). The Company will pay
(or cause to be paid) to the Swingline Bank interest at the applicable
Post-Default Rate on any principal of or interest on any Swingline Loan
which shall not be paid in full when due for the period from and
including the date such Swingline Loan shall be due to but excluding the
date the same is paid in full. Interest payable at the Post-Default Rate
shall be payable from time to time on demand.
(c) Notice of Rates. Promptly after the determination of any
interest rate provided for herein or any change therein, the
Administrative Agent shall give notice thereof to the Lenders to which
such interest is payable and to 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, Reimbursement Obligations and other amounts to be
made by the Company under this Agreement and the Notes, and, except to
the extent otherwise provided therein, all payments to be made by the
Obligors under any other Basic Document, shall be made in Dollars, in
immediately available funds, without deduction, set-off or counterclaim,
to the Administrative Agent at the Principal Office, not later than 1:30
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).
(b) Any Lender or the Swingline 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 that is not made by such time to any ordinary
deposit account of the Company with such Lender or the Swingline Bank
(with notice to the Company and the Administrative Agent) and any such
debit shall be deemed to be a payment by the Company.
-27-
Exhibit 10.1
(c) The Company shall, at the time of making each payment under
this Agreement or any Note for account of any Lender, specify to the
Administrative Agent (which shall notify the intended recipient(s)
thereof) the Loans, Reimbursement Obligations or other amounts payable by
the Company hereunder to which such payment is to be applied, in which
case such payment shall be, subject to Section 4.02 hereof, so applied
(and in the event that the Company fails to so specify, or if an Event of
Default has occurred and is continuing, such payment shall be, subject to
said Section 4.02, applied in such manner as is determined to be
appropriate by the Majority Lenders or, if the Majority Lenders fail to
advise the Administrative Agent of their determination promptly following
a request from the Administrative Agent for such a determination, by the
Administrative Agent).
(d) Each payment received by the Administrative Agent under this
Agreement or any Note for account of any Lender or the Swingline Bank
shall be paid by the Administrative Agent promptly to such Lender or the
Swingline Bank (as the case may be), in immediately available funds, for
account of the Applicable Lending Office of such Lender or the Swingline
Bank (as the case may be) for the Loan or other obligation 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 that is not a Business Day, such date
shall be extended to the next succeeding Business Day, and interest shall
be payable on 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 of Revolving Credit Loans under
Section 2.01 hereof shall be made from the Lenders, each payment
of commitment fee under Section 2.05 hereof shall be made for
account of the Lenders and each termination or reduction of the
Commitments under Section 2.04 hereof shall be applied to the
respective Commitments of the Lenders, pro rata according to the
amounts of their respective Commitments;
(b) the making, Conversion and Continuation of
Revolving Credit Loans of a particular Type (other than
Conversions provided for by Section 5.04 hereof) shall be made
pro rata among the Lenders according to the amounts of their
respective Commitments (in the case of making of Revolving
Credit Loans) or their respective Revolving Credit Loans (in the
case of Conversions and Continuations of Revolving Credit
Loans), and Eurodollar Loans having the same Interest Period
shall be allocated pro rata among the Lenders according to the
amounts of their respective Revolving Credit Loans of such Type;
(c) each payment or prepayment of principal of
Revolving Credit Loans shall be made for account of the Lenders
pro rata in accordance with the respective unpaid principal
amounts of Revolving Credit Loans held by the Lenders; and
(d) each payment of interest on Revolving Credit Loans
shall be made for account of the Lenders pro rata in accordance
with the amounts of interest on Revolving Credit Loans then due
and payable to the respective Lenders.
4.03 Computations. Interest on Eurodollar Loans, Swingline Loans and
letter of credit fees 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 and
Reimbursement Obligations and commitment fees 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. Minimum Amounts. Except for mandatory prepayments made pursuant
to Section 2.10 hereof and Conversions or prepayments made pursuant to Section
5.04 hereof, each borrowing, Conversion and partial
-28-
Exhibit 10.1
prepayment of principal of Revolving Credit Loans shall be in an aggregate
amount equal to $5,000,000 or any integral multiple of $1,000,000 in excess
thereof (borrowings, Conversions or prepayments of or into Revolving Credit
Loans of different Types or, in the case of Eurodollar Loans, having different
Interest Periods at the same time hereunder to be deemed separate borrowings,
Conversions and prepayments for purposes of the foregoing, one for each Type or
Interest Period). Anything in this Agreement to the contrary notwithstanding,
the aggregate principal amount of Eurodollar Loans having the same Interest
Period shall be in an amount at least equal to $5,000,000 and, if any Eurodollar
Loans having the same Interest Period would otherwise be in a lesser principal
amount for any period, such Loans shall be Base Rate Loans during such period.
4.05 Certain Notices. Notices by the Company to the Administrative
Agent of terminations or reductions of Commitments and of borrowings,
Conversions, Continuations and optional prepayments of Revolving Credit Loans,
of Types of Revolving Credit Loans and of the duration of Interest Periods shall
be irrevocable and shall be effective only if received by the Administrative
Agent not later than 1:00 p.m. (or 3:00 p.m. in the case of a borrowing or
prepayment of, Conversions into, Continuations as, or the duration of an
Interest Period for, Eurodollar Loans) New York time on the number of Business
Days prior to the date of the relevant termination, reduction, borrowing,
Conversion, Continuation or optional prepayment or the first day of such
Interest Period specified below:
Number of
Business
Notice Days Prior
Termination or reduction
of Commitments Three
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans Same Day
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans Three
Each such notice of termination or reduction shall specify the amount of
the Commitments to be terminated or reduced. Each such notice of
borrowing, Conversion, Continuation or optional prepayment shall specify
the Type of each Revolving Credit Loan to be borrowed, Converted,
Continued or prepaid, the date of borrowing, Conversion, Continuation or
optional prepayment (which shall be a Business Day), and, if any such
Revolving Credit Loan is to be borrowed or Continued as, or Converted
into, a Eurodollar Loan, the duration of the Interest Period for such
Revolving Credit Loan. The Administrative Agent shall promptly notify the
Lenders of the contents of each such notice. In the event that the
Company fails to select the Type of Revolving Credit Loan, or the
duration of any Interest Period for any Eurodollar Revolving Credit Loan,
within the time period and otherwise as provided in this Section 4.05,
such Revolving Credit Loan (if outstanding as a Eurodollar Loan) will be
automatically Converted into a Base Rate Loan on the last day of the then
current Interest Period for such Revolving Credit Loan or (if outstanding
as a Base Rate Loan) will remain as, or (if not then outstanding) will be
made as, a Base Rate Loan.
4.06 Non-Receipt of Funds by the Administrative Agent. Unless the
Administrative Agent shall have been notified by a Lender or the Company (the
"Payor") prior to the date on which the Payor is to make payment to the
Administrative Agent of (in the case of a Lender) the proceeds of a Loan to be
made by such Lender, or an amount payable in respect of a participation in a
Letter of Credit Liability to be acquired by such Lender, hereunder or (in the
case of the Company) a payment to the Administrative Agent for account of one
or more of the Lenders
-29-
Exhibit 10.1
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 Administrative Agent, the Administrative 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 Administrative Agent, the recipient(s) of such
payment shall, on demand, repay to the Administrative Agent the amount so made
available together with interest thereon in respect of each day during the
period commencing on the date (the "Advance Date") such amount was so made
available by the Administrative Agent until the date the Administrative 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
Administrative Agent shall be entitled to recover such amount, on demand, from
the Payor, together with interest as aforesaid, provided that if the
recipient(s) shall fail to return, and the Payor shall fail to make, the
Required Payment to the Administrative Agent within three Business Days of the
Advance Date, then the Payor and the recipient(s) shall each be obligated to pay
interest on the Required Payment as follows:
(a) if the Required Payment shall represent a payment
to be made by the Company to the Lenders, the Company and the
recipient(s) shall each be obligated retroactively to the
Advance Date to pay interest in respect of the Required Payment
at the Post-Default Rate (and, in case the recipient(s) shall
return the Required Payment to the Administrative Agent, without
limiting the obligation of the Company under Section 3.02 hereof
to pay interest to such recipient(s) at the Post-Default Rate in
respect of the Required Payment);
(b) if the Required Payment shall represent proceeds of
a Loan to be made by the Lenders to the Company, the Payor and
the Company shall each be obligated retroactively to the Advance
Date to pay interest in respect of the Required Payment at the
rate of interest provided for such Required Payment pursuant to
Section 3.02 hereof (and, in case the Company shall return the
Required Payment to the Administrative Agent, without limiting
any claim the Company may have against the Payor in respect of
the Required Payment); and
(c) if the Required Payment shall represent a payment
to be made by a Lender to the Issuing Bank in respect of a
participation in a Letter of Credit Liability to be acquired by
such Lender, the Payor shall be obligated retroactively to the
Advance Date to pay interest in respect of the Required Payment
at the rate of interest provided for such Required Payment
pursuant to Section 3.02 hereof with respect to Base Rate Loans.
Nothing in this Section 4.06 shall require the Company to pay any greater
amount in respect of principal of any Loan, interest on any Loan or any
Letter of Credit Liability than it would be required to pay hereunder in
the absence of this Section 4.06.
4.07 Sharing of Payments, Etc.
(a) The Company agrees that, in addition to (and without
limitation of) any right of set-off, banker's lien or counterclaim a
Lender or the Swingline Bank may otherwise have, each Lender and the
Swingline 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
Lender's Revolving Credit Loans, any of the Swingline Loans, any of the
Reimbursement Obligations or any other amount payable to such Lender or
the Swingline Bank (as the case may be) hereunder, that is not paid when
due (regardless of whether such balances are then due to the Company), in
which case it shall promptly thereafter notify the Company and the
Administrative Agent thereof, provided that such Lender's or the
Swingline Bank's (as the case may be) failure to give such notice shall
not affect the validity thereof.
(b) If any Lender shall obtain from any Obligor payment of any
principal of or interest on any Loan or
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Exhibit 10.1
Letter of Credit Liability owing to it or payment of any other amount under this
Agreement or any other Basic Document through the exercise of any right of
set-off, banker's lien or counterclaim or similar right or otherwise (other than
from the Administrative Agent as provided herein), and, as a result of such
payment, such Lender shall have received a greater percentage of the principal
of or interest on the Loans or Letter of Credit Liabilities or such other
amounts then due hereunder or thereunder by such Obligor to such Lender than the
percentage received by any other Lender, it shall promptly purchase from such
other Lenders participations in (or, if and to the extent specified by such
Lender, direct interests in) the Loans or Letter of Credit Liabilities or such
other amounts, respectively, owing to such other Lenders (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 Lenders shall
share the benefit of such excess payment (net of any expenses that may be
incurred by such Lender in obtaining or preserving such excess payment) pro rata
in accordance with the unpaid principal of and/or interest on the Loans or
Letter of Credit Liabilities or such other amounts, respectively, owing to each
of the Lenders. To such end all the Lenders 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 Lender so purchasing such a
participation (or direct interest) pursuant to the foregoing clause (b)
may exercise all rights of set-off, banker's lien, counterclaim or
similar rights with respect to such participation as fully as if such
Lender were a direct holder of Loans or other amounts (as the case may
be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to
exercise any such right or shall affect the right of any Lender to
exercise, and retain the benefits of exercising, any such right with
respect to any other indebtedness or obligation of any Obligor. If, under
any applicable bankruptcy, insolvency or other similar law, any Lender
receives a secured claim in lieu of a set-off to which this Section 4.07
applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the
rights of the Lenders entitled under this Section 4.07 to share in the
benefits of any recovery on such secured claim.
Section 5. Yield Protection, Etc.
5.01 Additional Costs
(a) The Company shall pay directly to each Lender from time to
time such amounts as such Lender may reasonably and in good faith
determine to be necessary to compensate such Lender for any increased
costs that such Lender reasonably and in good faith determines are
attributable to its making or maintaining of any Eurodollar Loans or its
obligation to make any Eurodollar Loans hereunder, or any reduction in
any amount receivable by such Lender 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 that:
(i) changes the basis of taxation of any amounts
payable to such Lender under this Agreement or its Note in
respect of any of such Loans (other than taxes imposed on or
measured by the overall net income of such Lender or of its
Applicable Lending Office for any of such Loans by the
jurisdiction in which such Lender has its principal office or
such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit
or similar requirements (other than, in the case of any Lender
for any period as to which the Company is required to pay any
amount under paragraph (e) below, the reserves against
"Eurocurrency liabilities" under Regulation D therein referred
to) relating to any extensions of credit or other assets of, or
any deposits with or other liabilities of, such Lender
(including, without limitation, any of such Loans or any
deposits referred to in the definition of "Eurodollar Rate" in
Section 1.01 hereof), or any commitment of such Lender hereunder
(including, without limitation, the Commitments of such Lender);
or
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Exhibit 10.1
(iii) imposes any other condition affecting this
Agreement or its Note (or any of such extensions of credit or
liabilities) or its Commitments.
If any Lender requests compensation from the Company under this Section
5.01(a), the Company may, by notice to such Lender (with a copy to the
Administrative Agent), suspend the obligation of such Lender thereafter
to make or Continue Eurodollar Loans, or to Convert Base Rate Loans into
Eurodollar Loans, 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), provided that such suspension shall not
affect the right of such Lender to receive the compensation so requested
to the extent such Lender certifies that such compensation is still
payable notwithstanding such suspension.
(b) Without limiting the effect of the provisions of paragraph
(a) of this Section 5.01, in the event that, by reason of any Regulatory
Change, any Lender 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 Lender that 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 Lender that includes Eurodollar Loans or
(ii) becomes subject to restrictions on the amount of such a category of
liabilities or assets that it may hold, then, if such Lender so elects by
notice to the Company (with a copy to the Administrative Agent), the
obligation of such Lender to make or Continue, or to Convert Base Rate
Loans into, Eurodollar Loans 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) and the Company shall not be
obligated to pay any Additional Costs for which the Lender ceases to be
liable or to incur.
(c) Without limiting the effect of the foregoing provisions of
this Section 5.01 (but without duplication), the Company shall pay
directly to each Lender from time to time on request such amounts as such
Lender may determine reasonably and in good faith to be necessary to
compensate such Lender (or, without duplication, the bank holding company
of which such Lender is a subsidiary) for any costs that it determines
reasonably and in good faith are attributable to the maintenance by such
Lender (or any Applicable Lending Office or such bank holding company),
pursuant to any law or regulation or any interpretation, directive or
request (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful) of any court or
governmental or monetary authority
(i) following any Regulatory Change, or
(ii) implementing 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 implementing at the
national level the Basel Accord (including, without limitation,
the Final Risk-Based Capital Guidelines of the Board of
Governors of the Federal Reserve System (12 C.F.R. Part 208,
Appendix A; 00 X.X.X. Xxxx 000, Xxxxxxxx X) and the Final
Risk-Based Capital Guidelines of the Office of the Comptroller
of the Currency (12 C.F.R. Part 3, Appendix A)),
of capital in respect of its Commitments 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 Lender (or any Applicable Lending
Office or such bank holding company) to a level below that which such
Lender (or any Applicable Lending Office or such bank holding company)
could have achieved but for such law, regulation, interpretation,
directive or request). For purposes of this Section 5.01(c) and Section
5.06 hereof, "Basel Accord" shall mean the proposals for risk-based
capital framework described by the Basel 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 or any replacement thereof.
(d) Each Lender shall notify the Company and the Administrative
Agent of any event occurring after the
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Exhibit 10.1
date of this Agreement entitling such Lender to compensation under paragraph (a)
or (c) of this Section 5.01 as promptly as practicable, but in any event within
30 days, after such Lender obtains actual knowledge thereof; provided that (i)
if any Lender fails to give such notice within 30 days after it obtains actual
knowledge of such an event, such Lender 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 30 days prior to the date that such Lender does
give such notice and (ii) each Lender will designate a different Applicable
Lending Office for the Loans of such Lender affected by such event if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the reasonable opinion of such Lender, be disadvantageous to
such Lender, except that such Lender shall have no obligation to designate an
Applicable Lending Office located in the United States of America. Each Lender
will furnish to the Company a certificate setting forth the basis and amount of
each request by such Lender for compensation under paragraph (a) or (c) of this
Section 5.01. Determinations and allocations by any Lender for purposes of this
Section 5.01 of the effect of any Regulatory Change pursuant to paragraph (a) or
(b) of this Section 5.01, or of the effect of capital maintained pursuant to
paragraph (c) of this Section 5.01, 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 Lender
under this Section 5.01, shall be conclusive, provided that such determinations
and allocations are made on a reasonable basis and absent demonstrable error.
(e) Without limiting the effect of the foregoing, the Company
shall pay to each Lender on the last day of each Interest Period so long
as such Lender is maintaining reserves against "Eurocurrency liabilities"
under Regulation D (or, unless the provisions of paragraph (b) above are
applicable, so long as such Lender is, by reason of any Regulatory
Change, maintaining reserves against any other category of liabilities
which includes deposits by reference to which the interest rate on
Eurodollar Loans is determined as provided in this Agreement or against
any category of extensions of credit or other assets of such Lender which
includes any Eurodollar Loans) an additional amount (determined by such
Lender and notified to the Company through the Administrative Agent)
equal to the product of the following for each Eurodollar Loan for each
day during such Interest Period:
(i) the principal amount of such Eurodollar Loan outstanding
on such day; and
(ii) the remainder of (x) a fraction the numerator of
which is the rate (expressed as a decimal) at which interest
accrues on such Eurodollar Loan for such Interest Period as
provided in this Agreement (less the Applicable Margin) and the
denominator of which is one minus the effective rate (expressed
as a decimal) at which such reserve requirements are imposed on
such Lender on such day minus (y) such numerator; and
(iii) 1/360.
5.02 Limitations on Types of Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any Eurodollar Rate for
any Interest Period:
(a) the Administrative Agent determines reasonably and
in good faith, which determination shall be conclusive, that
quotations of interest rates for the relevant deposits referred
to in the definition of "Eurodollar 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 Eurodollar Loans as provided herein; or
(b) the Majority Lenders determine reasonably and in
good faith, which determination shall be conclusive, and notify
the Administrative Agent that the relevant rates of interest
referred to in the definition of "Eurodollar Rate" in Section
1.01 hereof upon the basis of which the rate of interest for
Eurodollar Loans for such Interest Period is to be determined
are not likely to adequately cover the cost to such Lenders of
making or maintaining Eurodollar Loans for such Interest Period;
then the Administrative Agent shall give the Company and each Lender
prompt notice thereof and, so long as such
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Exhibit 10.1
condition remains in effect, the Lenders shall be under no obligation to make
additional Eurodollar Loans, to Continue Eurodollar Loans or to Convert Base
Rate Loans into Eurodollar Loans, and the Company shall, on the last day(s) of
the then current Interest Period(s) for the outstanding Eurodollar Loans, either
prepay such Loans or Convert such Loans into Base Rate Loans in accordance with
Section 2.09 hereof.
5.03 Illegality. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender or its Applicable Lending
Office to honor its obligation to make or maintain Eurodollar Loans hereunder,
then such Lender shall promptly notify the Company thereof (with a copy to the
Administrative Agent) and such Lender's obligation to make or Continue, or to
Convert Loans of any other Type into, Eurodollar Loans shall be suspended until
such time as such Lender may again make and maintain Eurodollar Loans (in which
case the provisions of Section 5.04 hereof shall be applicable).
5.04 Treatment of Affected Loans. If the obligation of any Lender to
make Eurodollar Loans or to Continue, or to Convert Base Rate Loans into,
Eurodollar Loans shall be suspended pursuant to Section 5.01 or 5.03 hereof,
such Lender's Eurodollar Loans shall be automatically Converted into Base Rate
Loans on the last day(s) of the then current Interest Period(s) for Eurodollar
Loans (or, in the case of a Conversion required by Section 5.01(b) or 5.03
hereof, on such earlier date as such Lender may specify to the Company with a
copy to the Administrative Agent) and, unless and until such Lender gives notice
as provided below that the circumstances specified in Section 5.01 or 5.03
hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans
have been so Converted, all payments and prepayments of
principal that would otherwise be applied to such Lender's
Eurodollar Loans shall be applied instead to its Base Rate
Loans; and
(b) all Loans that would otherwise be made or Continued
by such Lender as Eurodollar Loans shall be made or Continued
instead as Base Rate Loans, and all Base Rate Loans of such
Lender that would otherwise be Converted into Eurodollar Loans
shall remain as Base Rate Loans.
If such Lender gives notice to the Company with a copy to the
Administrative Agent that the circumstances specified in Section 5.01 or
5.03 hereof that gave rise to the Conversion or non-Continuation of such
Lender's Eurodollar Loans pursuant to this Section 5.04 no longer exist
(which such Lender agrees to do promptly upon such circumstances ceasing
to exist) at a time when Eurodollar Loans made by other Lenders are
outstanding, such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s)
for such outstanding Eurodollar Loans, to the extent necessary so that,
after giving effect thereto, all Revolving Credit Loans held by the
Lenders holding Eurodollar Loans and by such Lender are held pro rata (as
to principal amounts, Types and Interest Periods) in accordance with
their respective Commitments.
5.05 Compensation. The Company shall pay to the Administrative Agent
for account of each Lender, upon the request of such Lender through the
Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost or
expense that such Lender determines is attributable to:
(a) any payment, mandatory or optional prepayment or
Conversion of a Eurodollar Loan made by such Lender 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;
(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 Eurodollar Loan from such Lender on the
date for such borrowing specified in the relevant notice of
borrowing given under Section 2.02 hereof; or
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Exhibit 10.1
(c) any failure for any reason (including, without
limitation, as provided in Section 5.02 or 5.03 hereof, but
excluding as a result of the failure by such Lender to make a
Loan it is obligated to make hereunder) of a Loan of such Lender
to be Continued as or Converted into a Eurodollar Loan on the
date for such Continuation or Conversion specified in the
relevant notice given under Section 2.09 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 that otherwise would have accrued on the principal amount so
paid, prepaid or Converted or not borrowed, Continued or Converted for
the period from the date of such payment, prepayment, Conversion or
failure to borrow, Continue or Convert to the last day of the then
current Interest Period for such Loan (or, in the case of a failure to
borrow, Continue or Convert, the Interest Period for such Loan that would
have commenced on the date specified for such borrowing, Continuation or
Conversion) at the applicable rate of interest for such Loan provided for
herein (less, in the case of any failure to borrow a Eurodollar Loan, or
to Continue a Loan as or to Convert a Loan into a Eurodollar Loan, solely
as a result of the limitation set forth in Section 5.02 or 5.03 hereof,
the Applicable Margin for such Loan) over (ii) the amount of interest
that otherwise would have accrued on such principal amount at a rate per
annum equal to the interest component of the amount such Lender would
have bid in the London interbank market 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 Lender).
5.06 Additional Costs in Respects of Letters of Credit. Without
limiting the obligations of the Company under Section 5.01 hereof (but without
duplication), if as a result of any Regulatory Change or any risk-based capital
guideline or other requirement heretofore or hereafter issued by any government
or governmental or supervisory authority implementing at the national level the
Basel Accord, there shall be imposed, modified or deemed applicable any tax,
reserve, special deposit, capital adequacy or similar requirement against or
with respect to or measured by reference to Letters of Credit issued or to be
issued hereunder and the result shall be to increase the cost to any Lender or
Lenders of issuing (or purchasing participations in) or maintaining its
obligation hereunder to issue (or purchase participations in) any Letter of
Credit or reduce any amount receivable by any Lender hereunder in respect of any
Letter of Credit (which increases in cost, or reductions in amount receivable,
shall be the result of such Lender's or Lenders' reasonable allocation of the
aggregate of such increases or reductions resulting from such event), then, upon
demand by such Lender or Lenders (through the Administrative Agent), the Company
shall pay immediately to the Administrative Agent for account of such Lender or
Lenders, from time to time as specified by such Lender or Lenders (through the
Administrative Agent), such additional amounts as shall be sufficient to
compensate such Lender or Lenders (through the Administrative Agent) for such
increased costs or reductions in amount. A statement as to such increased costs
or reductions in amount incurred by any such Lender or Lenders, submitted by
such Lender or Lenders to the Company shall be conclusive in the absence of
demonstrable error as to the amount thereof.
5.07 U.S. Taxes
(a) The Company agrees to pay to each Lender that is not a U.S.
Person such additional amounts as are necessary in order that the net
payment of any amount due to such non-U.S. Person hereunder after
deduction for or withholding in respect of any U.S. Tax imposed with
respect to such payment (or in lieu thereof, payment of such U.S. Tax by
such non-U.S. Person), will not be less than the amount stated herein to
be then due and payable, provided that the foregoing obligation to pay
such additional amounts shall not apply:
(i) to any payment to a Lender hereunder unless such Lender
is, on the date hereof (or on the date it becomes a Lender as
provided in Section 12.06(b) hereof) and on the date of any
change in the Applicable Lending Office of such Lender, either
entitled to submit a Form 1001 (relating to such Lender and
entitling it to a complete exemption from withholding on all
interest to be received by it hereunder in respect of the Loans)
or Form 4224 (relating to all interest to be received by such
Lender hereunder in respect of the Loans), or
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Exhibit 10.1
(ii) to any U.S. Tax imposed solely by reason of the failure
by such non-U.S. Person to comply with applicable certification,
information, documentation or other reporting requirements
concerning the nationality, residence, identity or connections
with the United States of America of such non-U.S. Person if
such compliance is required by statute or regulation of the
United States of America as a precondition to relief or
exemption from such U.S. Tax.
For the purposes of this Section 5.07(a), (w) "Form 1001" shall mean Form
1001 (Ownership, Exemption, or Reduced Rate Certificate) of the
Department of the Treasury of the United States of America, (x) "Form
4224" shall mean Form 4224 (Exemption from Withholding of Tax on Income
Effectively Connected with the Conduct of a Trade or Business in the
United States) of the Department of the Treasury of the United States of
America (or in relation to either such Form such successor and related
forms as may from time to time be adopted by the relevant taxing
authorities of the United States of America to document a claim to which
such Form relates), (y) "U.S. Person" shall mean a citizen, national or
resident of the United States of America, a corporation, partnership or
other entity created or organized in or under any laws of the United
States of America, or any estate or trust that is subject to Federal
income taxation regardless of the source of its income and (z) "U.S.
Taxes" shall mean any present or future tax, assessment or other charge
or levy imposed by or on behalf of the United States of America or any
taxing authority thereof or therein.
(b) Within 30 days after paying any amount to the Administrative
Agent or any Lender from which it is required by law to make any
deduction or withholding, and within 30 days after it is required by law
to remit such deduction or withholding to any relevant taxing or other
authority, the Company shall deliver to the Administrative Agent for
delivery to such non-U.S. Person evidence satisfactory to such Person of
such deduction, withholding or payment (as the case may be).
(c) Each Lender that is a Lender on the Closing Date and is not
a U.S. Person agrees to furnish to the Administrative Agent (with a copy
to the Company) on the Closing Date an appropriately completed Form 1001
or Form 4224 and each Lender that becomes a Lender after the Closing Date
pursuant to Section 12.06(b) hereof and is not a U.S. Person agrees to
furnish to the Administrative Agent (with a copy to the Company),
promptly after becoming a Lender, an appropriately completed Form 1001 or
Form 4224.
5.08 Replacement of Certain Lenders
(a) Provided that no Default shall have occurred and be
continuing, the Company may, at any time, replace any Lender (i) that has
requested compensation from the Company pursuant to Section 5.01 or 5.06
hereof or (ii) that has given the Company the notice contemplated by
Section 5.03 hereof or (iii) which is not a U.S. Person and as to which
the Company is obligated to make payments under Section 5.07 hereof, by
giving not less than ten Business Days' prior notice to the
Administrative Agent (which shall promptly notify such Lender), that it
intends to replace such Lender with one or more banks or other financial
institutions (including, but not limited to, any other Lender under this
Agreement) selected by the Company that (a) have agreed to replace such
Lender as provided in this Section 5.08 and (b) are reasonably acceptable
to the Administrative Agent (the Administrative Agent agreeing not to
unreasonably delay notifying the Company whether a proposed replacement
lender is acceptable). Upon the effective date of any replacement under
this Section 5.08 and as a condition to such replacement, the replacement
lender or lenders shall pay to the Lender being replaced the principal of
the Loans held by such Lender and the Company shall pay to such Lender
all accrued interest on such Loans and all other amounts owing to such
Lender hereunder (including any amounts payable under Section 5.05 hereof
as if such Loans were being prepaid by the Company), whereupon each such
replacement bank (if not already a Lender) shall become a "Lender" for
all purposes of this Agreement.
(b) If any Lender that is a Reference Bank (or a Wholly Owned
Subsidiary of a Reference Bank, as the case may be) shall be replaced
pursuant to this Section 5.08, such Reference Bank shall thereupon cease
to be a Reference Bank and, if as a result of the foregoing, there shall
only be two Reference Banks remaining, then the Administrative Agent
(after consultation with the Company) shall, by notice to the Company and
the Banks, designate another
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Exhibit 10.1
Lender as a Reference Bank, so that there shall at all times be three Reference
Banks.
5.09 Consistent Treatment. Each Lender shall apply the provisions of
this Section 5 in substantially the same manner, and to the same extent, as such
Lender applies comparable provisions applicable to similarly-situated borrowers.
Section 6. Guarantee
6.01 Guarantee. The Subsidiary Guarantors hereby jointly and severally
guarantee to each Lender and the Administrative 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 Revolving Credit Loans made by the
Lenders to, and the Revolving Credit Note held by each Lender of, and the
principal of and interest on the Swingline Loans made by the Swingline
Bank to, and the Swingline Note of, the Company and all other amounts
(including, without limitation, Reimbursement Obligations) from time to
time owing to the Lenders or the Administrative Agent by the Company
under this Agreement and under the Notes and by any Obligor under any of
the other Basic Documents, in each case strictly in accordance with the
terms thereof (and giving effect to any amendment or modification of such
terms), including all amounts which would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy
Code and the operation of Sections 502(b) and 506(b) of the Bankruptcy
Code (such obligations being herein collectively called the "Guaranteed
Obligations"). The Subsidiary Guarantors hereby further jointly and
severally agree 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, the Subsidiary Guarantors 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 the Subsidiary
Guarantors 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
of the Subsidiary Guarantors 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 alter or impair the liability of any of the
Subsidiary Guarantors hereunder, which liabilities shall remain absolute and
unconditional as described above:
(i) at any time or from time to time, without notice to
the Subsidiary Guarantors, 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 any 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
(including the Guarantee hereunder of any other Subsidiary
Guarantor) or any security therefor shall be released or
exchanged in whole or in part or
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Exhibit 10.1
otherwise dealt with; or
(iv) any lien or security interest granted to, or in
favor of, the Administrative Agent or any Lender or Lenders as
security for any of the Guaranteed Obligations shall fail to be
perfected.
The Subsidiary Guarantors hereby expressly waive diligence, presentment,
demand of payment, protest and all notices whatsoever, and any
requirement that the Administrative Agent or any Lender 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 Reinstatements. The obligations of the Subsidiary Guarantors
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 Subsidiary Guarantors jointly
and severally agree that they will indemnify the Administrative Agent and each
Lender on demand for all reasonable costs and expenses (including, without
limitation, reasonable fees of counsel) incurred by the Administrative Agent or
such Lender in connection with such rescission or restoration, including any
such costs and expenses incurred in defending against any claim alleging that
such payment constituted a preference, fraudulent transfer or similar payment
under any bankruptcy, insolvency or similar law.
6.04 Subrogation. Each Subsidiary Guarantor hereby jointly and
severally agrees that until the payment and satisfaction in full of all
Guaranteed Obligations and the expiration and termination of the Commitments of
the Lenders 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 Subsidiary Guarantors jointly and severally agree
that, as between the Subsidiary Guarantors and the Lenders, 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 the Subsidiary
Guarantors for purposes of said Section 6.01.
6.06 Continuing Guarantee. The guarantee in this Section 6 is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
6.07 Rights of Contribution. The Subsidiary Guarantors hereby agree,
as between themselves, that if any Subsidiary Guarantor (an "Excess Funding
Guarantor") shall pay Guaranteed Obligations in excess of such Excess Funding
Guarantor's Pro Rata Share (as defined below) of such Guaranteed Obligations
(such excess payment, an "Excess Payment"), each other Subsidiary Guarantor
shall, on demand of such Excess Funding Guarantor (but subject to the next
sentence hereof), pay to such Excess Funding Guarantor an amount equal to such
other Subsidiary Guarantor's Pro Rata Share (such Pro Rata Share, for the
purpose of determining the amount due to the Excess Funding Guarantor under this
Section 6.07, to be determined without reference to the Excess Funding
Guarantor) of such Excess Payment. The payment obligation of each other
Subsidiary Guarantor to an 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 Subsidiary 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 Payment until payment and
satisfaction
-38-
Exhibit 10.1
in full of all of such obligations. For the purposes hereof, "Pro Rata Share"
shall mean, with respect to each Subsidiary Guarantor, the ratio (expressed as a
percentage and determined as of the Closing Date) of (a) the amount by which the
aggregate value of all of the Properties of such Subsidiary Guarantor at their
present fair saleable value exceeds the amount of all of the debts and
liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities, but excluding the obligations of such Subsidiary Guarantor under
this Section 6) of such Subsidiary Guarantor to (b) the amount by which the
aggregate value of all of the Properties of all of the Subsidiary Guarantors at
their present fair saleable value exceeds the amount of all of the debts and
liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities, but excluding the obligations of such Subsidiary Guarantor under
this Section 6) of all of the Subsidiary Guarantors.
6.08 Limitation on Guarantee Obligations. In any action or proceeding
involving any state corporate law, or any state or Federal bankruptcy,
insolvency, reorganization or other law affecting the rights of creditors
generally, if the obligations of any Subsidiary Guarantor under Section 6.01
hereof would otherwise, taking into account the provisions of Section 6.07
hereof, be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of
its liability under said Section 6.01, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further
action by such Subsidiary Guarantor, any Lender, the Administrative Agent or any
other Person, be automatically limited and reduced to the highest amount which
is valid and enforceable and not subordinated to the claims of other creditors
as determined in such action or proceeding.
6.09 Release of Guarantors. A Subsidiary Guarantor shall be released
from its guarantee obligations under Section 6 hereof, and its Properties shall
be released from the Lien of the Security Agreement, upon the request of the
Company, so long as (a) such Subsidiary Guarantor is not X. Xxxxxx Bookseller,
Inc., Xxxxxx & Noble Booksellers, Inc. or Doubleday Book Shops, Inc. and (b) the
aggregate fair market value of the assets of all such Released Guarantors
calculated as of the time of the respective release does not exceed
$150,000,000. In the event that any Subsidiary Guarantor is so released, from
and after the date of such release:
(i) all financial reports delivered pursuant to this
Agreement shall be prepared as if such Subsidiary was not a
Subsidiary of the Company (and, in addition, the Company shall
furnish the financial reports currently required under Section
9.01(a) and 9.01(c)); and
(ii) all covenants in Sections 9.10 and 9.11 hereof
shall be calculated as if such Subsidiary was not a Subsidiary
of the Company.
Section 7. Conditions Precedent.
7.01 Initial Extension of Credit. The obligation of any Lender or the
Swingline Bank to make its initial extension of credit hereunder (whether by
making a Loan or issuing a Letter of Credit) is subject to (i) the condition
precedent that such extension of credit shall be made on or before November 26,
1997 and (ii) the receipt by the Administrative Agent of the following
documents, each of which shall be satisfactory to the Administrative Agent in
form and substance:
(a) Corporate Documents. The following documents, each
certified as indicated below:
(i) for each Obligor, a copy of the charter, as
amended and in effect, of such Obligor certified as of
a recent date by the Secretary of State of its
jurisdiction of incorporation, and a certificate from
such Secretary of State dated as of a recent date as to
the good standing of and charter documents filed by
such Obligor;
(ii) for each Obligor, a certificate of the
Secretary or an Assistant Secretary of such Obligor,
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Exhibit 10.1
dated the Closing Date and certifying (A) that attached
thereto is a true and complete copy of the by-laws of
such Obligor as amended and in effect at all times from
the date on which the resolutions referred to in clause
(B) were adopted to and including the date of such
certificate, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the board
of directors of such Obligor authorizing the execution,
delivery and performance of such of the Basic Documents
to which such Obligor is or is intended to be a party
and the extensions of credit hereunder, and that such
resolutions have not been modified, rescinded or
amended and are in full force and effect, (C) that the
charter of such Obligor has not been amended since the
date of the certification thereto furnished pursuant to
subparagraph (i) above, and (D) as to the incumbency
and specimen signature of each officer of such Obligor
executing such of the Basic Documents to which such
Obligor is intended to be a party and each other
document to be delivered by such Obligor from time to
time in connection therewith (and the Administrative
Agent and each Lender may conclusively rely on such
certificate until it receives notice in writing from
such Obligor); and
(iii) for each Obligor, a certificate of another
officer of such Obligor as to the incumbency and
specimen signature of the Secretary or Assistant
Secretary, as the case may be, of such Obligor.
(b) Officer's Certificate. A certificate of a senior
officer of the Company, dated the Closing Date, to the effect
(x) set forth in the first sentence of Section 7.02 hereof and
(y) that this Agreement and the Loans constitute "Senior
Indebtedness" under the Senior Subordinated Debt Documents.
(c) Opinion of Counsel to the Obligors. An opinion,
dated the Closing Date, of Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx &
Xxxxxx LLP, counsel to the Obligors, substantially in the form
of Exhibit C hereto and covering such other matters as the
Administrative Agent may reasonably request (and each Obligor
hereby instructs such counsel to deliver such opinions to the
Lenders and the Administrative Agent).
(d) Opinion of Special New York Counsel to Chase, CIBC
and ING. An opinion, dated the Closing Date, of Xxxxx, Xxxxx &
Xxxxx, special New York counsel to Chase, CIBC and ING,
substantially in the form of Exhibit D hereto.
(e) Notes. The Notes, duly completed and executed.
(f) Security Agreement. The Security Agreement
Amendment, duly executed and delivered by the Company, the
Subsidiary Guarantors and the Administrative Agent, together
with (i) the certificates identified under the name of such
Obligor in Annex 1 to the Security Agreement, in each case
accompanied by undated stock powers executed in blank and (ii) a
consent by College, in form and substance satisfactory to the
Administrative Agent, to the creation of a Lien on the License
Agreement pursuant to the Security Agreement. In addition, the
Company and the Subsidiary Guarantors shall have taken such
other action (including, without limitation, delivering to the
Administrative Agent, for filing, appropriately completed and
duly executed copies of Uniform Commercial Code financing
statements) as the Administrative Agent shall have requested in
order to perfect the security interests created pursuant to the
Security Agreement.
(g) Insurance. Certificates of insurance evidencing the
existence of all insurance required to be maintained by the
Company pursuant to Section 9.04 hereof.
(h) Repayment of Existing Indebtedness. Evidence that
the principal of and interest on, and all other amounts owing
(including, without limitation, any contingent or other amounts
payable in respect of letters of credit) in respect of, the
Indebtedness indicated on Schedule I hereto as being repaid upon
the Closing Date shall have been (or shall be simultaneously)
repaid in full, that all commitments to extend credit under the
agreements evidencing any such Indebtedness shall have been
canceled or terminated and
-40-
Exhibit 10.1
that any Liens securing any such Indebtedness shall have been
released (or arrangements for such release satisfactory to the
Administrative Agent shall have been made).
(i) Copies of the License Agreement. A copy, certified
as true and correct by a senior officer of the Company, of the
License Agreement.
(j) Other Documents. Such other documents as the
Administrative Agent or special New York counsel to Chase, CIBC
and ING may reasonably request.
The obligation of any Lender or the Swingline Bank to make its initial
extension of credit hereunder is also subject to the payment by the
Company of such fees and reimbursement for expenses as the Company shall
have agreed to pay to any Lender or the Administrative Agent in
connection herewith, including, without limitation, the reasonable fees
and expenses of Xxxxx, Xxxxx & Xxxxx, special New York counsel to Chase,
CIBC and ING in connection with the negotiation, preparation, execution
and delivery of this Agreement and the Notes and the other Basic
Documents and the extensions of credit hereunder (to the extent that
statements for such fees and expenses have been delivered to the
Company), provided that such fees and expenses may be paid with the
proceeds of the Loans made hereunder on the Closing Date.
7.02 Initial and Subsequent Extensions of Credit. The obligation of
the Lenders and the Swingline Bank to make any Loan or otherwise extend any
credit to the Company upon the occasion of each borrowing or other extension of
credit hereunder (including the initial borrowing or other extension of credit)
is subject to the further conditions precedent that, both immediately prior to
the making of such Loan or other extension of credit and also after giving
effect thereto and to the intended use thereof:
(a) no Default shall have occurred and be continuing; and
(b) the representations and warranties made by the
Obligors in Section 8 hereof, and by each Obligor in each of the
other Basic Documents to which it is a party, shall be true and
complete on and as of the date of the making of such Loan or
other extension of credit with the same force and effect as if
made on and as of such date (or, if any such representation or
warranty is expressly stated to have been made as of a specific
date, as of such specific date).
Each notice of borrowing or request for the issuance of a Letter of
Credit 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 or request and, unless the Company otherwise notifies
the Administrative Agent prior to the date of such borrowing or issuance,
as of the date of such borrowing or issuance).
Section 8. Representatives and Warranties. Each Obligor represents
and warrants to the Administrative Agent and the Lenders that:
8.01 Corporate Existence. Each of the Company and its Subsidiaries
(other than Unrestricted Subsidiaries and Released Guarantors): (a) is a
corporation, partnership or other entity duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization; (b) has
all requisite corporate or other 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 and is in good standing in all jurisdictions in
which the nature of the business conducted by it makes such qualification
necessary and where failure so to qualify could, either individually or in the
aggregate, have a Material Adverse Effect.
8.02 Financial Condition. The Company has heretofore furnished to each
of the Lenders the consolidated balance sheet of the Company and its
Consolidated Subsidiaries as at February 1, 1997, and the related consolidated
-41-
Exhibit 10.1
statements of income and cash flows of the Company and its Consolidated
Subsidiaries for the fiscal year ended on said date, with the opinion thereon of
BDO Xxxxxxx, and the unaudited consolidated balance sheet of the Company and its
Consolidated Subsidiaries as at August 2, 1997 and the related unaudited
consolidated statements of income and cash flows of the Company and the
Consolidated Subsidiaries for the six-month period ended on such date. Such
financial statements 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. None
of the Company nor any of its Subsidiaries has on the date hereof 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
financial statements (or in the notes thereto) as at said date. Since February
1, 1997, there has been no material adverse change in the consolidated financial
condition or operations of the Company and its Consolidated Subsidiaries taken
as a whole from that set forth in said financial statements as at said date.
8.03 Litigation. 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 that would reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.
8.04 No Breach. None of the execution and delivery of this Agreement
and the Notes and the other Basic Documents, the consummation of the
transactions herein and therein contemplated or compliance with the terms and
provisions hereof and thereof 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 the Company or any of its Subsidiaries is a party or by which any of them
or any of their Property is bound or to which any of them is subject, or
constitute a default under any such agreement or instrument, or (except for the
Liens created pursuant to the Security Documents) result in the creation or
imposition of any Lien upon any material Property of the Company or any of its
Subsidiaries pursuant to the terms of any such agreement or instrument.
8.05 Action. Each Obligor has all necessary corporate power, authority
and legal right to execute, deliver and perform its obligations under each of
the Basic Documents to which it is a party; the execution, delivery and
performance by each Obligor of each of the Basic Documents to which it is a
party have been duly authorized by all necessary corporate action on its part
(including, without limitation, any required shareholder approvals); and this
Agreement has been duly and validly executed and delivered by each Obligor and
constitutes, and each of the Notes and the other Basic Documents when executed
and delivered by each Obligor party thereto (in the case of the Notes, for
value) will constitute, the legal, valid and binding obligation of each Obligor
party thereto, enforceable against such Obligors in accordance with its terms,
except as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability affecting
the enforcement of creditors' rights and (b) the application of general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
8.06 Approvals. No authorizations, approvals or consents of, and no
filings or registrations with, any governmental or regulatory authority or
agency, or any securities exchange, are necessary for the execution, delivery or
performance by any Obligor of the Basic Documents to which it is a party or for
the legality, validity or enforceability hereof or thereof, except for filings
and recordings in respect of the Liens created pursuant to the Security
Documents.
8.07 Use of Credit. Neither the Company nor any of its Subsidiaries
(other than Unrestricted 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 extension of credit hereunder will be used to
buy or carry any Margin Stock.
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Exhibit 10.1
8.08 ERISA. As to each Plan, and, to the knowledge of the Company, as
to each Multiemployer Plan, (a) such Plan or Multiemployer Plan is in compliance
in all material respects with, and has been administered in all material
respects in compliance with, the applicable provisions of ERISA, the Code and
any other Federal or State law, and (b) no event or condition has occurred and
is continuing as to which the Company would be under an obligation to furnish a
report to the Lenders under Section 9.01(e) hereof.
8.09 Taxes. The Company and its Consolidated Subsidiaries are members
of an affiliated group of corporations filing consolidated returns for Federal
income tax purposes, of which the Company is the "common parent" (within the
meaning of Section 1504 of the Code) of such group. The Company and its
Consolidated Subsidiaries have filed all Federal income tax returns and all
other material tax returns that 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 Consolidated Subsidiaries. The charges, accruals and
reserves on the books of the Company and its Consolidated Subsidiaries in
respect of taxes and other governmental charges are, in the opinion of the
Company, adequate.
8.10 Investment Company Act. Neither the Company nor any of its
Subsidiaries is 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 Public Utility Holding Company Act. Neither the Company nor any
of its Subsidiaries is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
8.12 Material Agreements and Liens.
(a) Part A of Schedule I hereto is a complete and correct list, as
of the date of this Agreement, of each credit agreement, loan agreement,
indenture, securities purchase agreement, letter of credit or other arrangement
providing for or otherwise relating to any Indebtedness or any extension of
credit (or commitment for any extension of credit), other than any trade
accounts payable (except trade accounts payable for borrowed money), to, or
guarantee of any of the foregoing by, the Company or any of its Subsidiaries
(other than any guarantees by any Obligor of obligations of Subsidiary
Guarantors under leases), and the aggregate principal or face amount outstanding
or that may become outstanding under each such arrangement is correctly
described in Part A of said Schedule I.
(b) Part B of Schedule I hereto is a complete and correct list, as
of the date of this Agreement, of each Lien securing Indebtedness of any Person
and covering any Property of the Company or any of its Subsidiaries, and the
aggregate Indebtedness secured (or which may be secured) by each such Lien and
the Property covered by each such Lien is correctly described in Part B of said
Schedule I.
8.13 Environmental Matters. Each of the Company and its Subsidiaries
(other than Unrestricted Subsidiaries) has obtained all permits, licenses and
other authorizations required under all applicable Environmental Laws to carry
on its business as now being or as proposed to be conducted, except to the
extent failure to have any such permit, license or authorization would not,
either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. Each of such permits, licenses and authorizations is in
full force and effect, and each of the Company and its Subsidiaries (other than
Unrestricted Subsidiaries) is in compliance with the terms and conditions
thereof and is also in compliance with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules and
timetables contained in any applicable Environmental Law or in any regulation,
code, plan, order, decree, judgment, injunction, notice or demand letter issued,
entered, promulgated or approved thereunder, except to the extent failure to
comply therewith would not, either individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. In addition, no notice,
notification, demand, request for information, citation, summons or order has
been issued, no complaint has been filed, no penalty
-43-
Exhibit 10.1
has been assessed and no investigation or review is pending or (to the knowledge
of the Company) threatened by any governmental or other entity with respect to
any alleged failure by the Company or any of its Subsidiaries (other than
Unrestricted Subsidiaries) to have any permit, license or other authorization
required under any applicable Environmental Law in connection with the conduct
of the business of the Company or any of its Subsidiaries (other than
Unrestricted Subsidiaries) or with respect to any generation, treatment,
storage, recycling, transportation, discharge or disposal, or any Release of any
Hazardous Materials generated by the Company or any of its Subsidiaries (other
than Unrestricted Subsidiaries).
8.14 Capitalization. The authorized capital stock of the Company
consists, on the Closing Date, of an aggregate of 100,000,000 shares of common
stock, par value $.001 per share, and 5,000,000 shares of preferred stock, par
value $.001 per share, of which 67,875,339 shares of common stock are duly and
validly issued and outstanding as of October 31, 1997 and each of which shares
of common stock is fully paid and nonassessable, and no shares of preferred
stock have been issued. As of the Closing Date, (x) except for outstanding
employee and director stock options, there are no outstanding Equity Rights with
respect to the Company and (y) there are no outstanding obligations of the
Company or any of its Subsidiaries to repurchase, redeem, or otherwise acquire
any shares of capital stock of the Company.
8.15 Subsidiaries, Etc.
(a) Set forth in Part A of Schedule II hereto is a complete and
correct list, as of the date of this Agreement, of all of the Subsidiaries of
the Company, together with, for each such Subsidiary, (i) the jurisdiction of
organization of such Subsidiary, (ii) each Person holding ownership interests in
such Subsidiary and (iii) the nature of the ownership interests held by each
such Person and the percentage of ownership of such Subsidiary represented by
such ownership interests. Except as disclosed in Part A of Schedule II hereto,
as of the date of this Agreement (x) each of the Company and its Subsidiaries
owns, free and clear of Liens (other than Liens created pursuant to the Security
Documents), and has the unencumbered right to vote, all outstanding ownership
interests in each Person shown to be held by it in Part A of Schedule II hereto,
(y) all of the issued and outstanding capital stock of each such Person
organized as a corporation is validly issued, fully paid and nonassessable and
(z) there are no outstanding Equity Rights with respect to such Person.
(b) Set forth in Part B of Schedule II hereto is a complete and
correct list, as of the date of this Agreement, of all Investments (other than
Permitted Investments and Investments disclosed in Part A of said Schedule II
hereto) held by the Company or any of its Subsidiaries in any Person and, for
each such Investment, (x) the identity of the Person or Persons holding such
Investment and (y) the nature of such Investment. Except as disclosed in Part B
of Schedule II hereto, as of the date of this Agreement, each of the Company and
its Subsidiaries owns, free and clear of all Liens (other than Liens created
pursuant to the Security Documents), all such Investments.
(c) None of the Subsidiaries of the Company is, on the date of this
Agreement, subject to any indenture, agreement, instrument or other arrangement
of the type described in Section 9.17 hereof.
8.16 True and Complete Disclosure. The information, reports, financial
statements, exhibits and schedules furnished in writing by or on behalf of any
Obligor or any of its Subsidiaries to the Administrative Agent or any Lender in
connection with the negotiation, preparation or delivery of this Agreement and
the other Basic Documents or included herein or therein or delivered pursuant
hereto or thereto, when taken as a whole, do not, as of the date hereof, contain
any untrue statement of material fact or omit to state any material fact
necessary to make the statements herein or therein, in light of the
circumstances under which they were made, not misleading. All written
information furnished after the date hereof by the Company and its Subsidiaries
to the Administrative Agent and the Lenders in connection with this Agreement
and the other Basic Documents and the transactions contemplated hereby and
thereby will be true, complete and accurate in every material respect, or (in
the case of projections) based on reasonable estimates, on the date as of which
such information is stated or certified. To the Company's knowledge, there is no
fact peculiar to the Company or any of its Subsidiaries (other than Unrestricted
Subsidiaries) that could
-44-
Exhibit 10.1
have a Material Adverse Effect that has not been disclosed herein, in the other
Basic Documents or in a report, financial statement, exhibit, schedule,
disclosure letter or other writing furnished to the Lenders for use in
connection with the transactions contemplated hereby or thereby.
Section 9. Covenants of the Company. Each Obligor covenants and agrees
with the Lenders and the Administrative Agent that, so long as any Commitment,
Loan or Letter of Credit Liability is outstanding and until payment in full of
all amounts payable by the Company hereunder:
9.01 Financial Statements; Information; Etc. The Company will deliver
the Agent in sufficient quantities for it to deliver to each of the Lenders:
(a) as soon as available and in any event within 45
days after the end of each of the first three fiscal quarters of
the Company, the Company's quarterly report on Form 10-Q for
such fiscal quarter, which includes consolidated financial
statements of the Company and its Consolidated Subsidiaries for
such fiscal quarter;
(b) as soon as possible and in any event:
(i) within 90 days after the end of each
fiscal year of the Company, the Company's annual report
on Form 10-K for such fiscal year, and consolidated
financial statements of the Company and its
Consolidated Subsidiaries for such fiscal year,
accompanied by an opinion thereon of independent
certified public accountants of recognized national
standing, which opinion shall state that the
consolidated financial statements fairly present the
consolidated financial position and results of
operations of the Company and its Consolidated
Subsidiaries;
(ii) within 45 days after the end of each of
the first three fiscal quarters of each fiscal year,
and within 90 days after the end of each fiscal year, a
certificate of the Company signed by a senior financial
officer (including the treasurer) of the Company
setting forth the information called for by Exhibit E
hereto;
(c) promptly upon their becoming available, copies of
all registration statements and regular periodic reports (which
shall include form 8-Ks), 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 public
shareholders of the Company, if any, generally or to holders of
Senior Subordinated Debt 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 believe that any
of the events or conditions specified below with respect to any
Plan or Multiemployer Plan has occurred or exists, a statement
signed by a senior financial officer (including the treasurer)
of the Company setting forth details respecting such event or
condition and the action, if any, that 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
-45-
Exhibit 10.1
such event (provided that such statement shall be required for
a failure to meet the minimum funding standard of Section 412
of the Code or Section 302 of ERISA, including, without
limitation, the failure to make on or before its due date a
required installment under Section 412(m) of the Code or
Section 302(e) of ERISA, regardless of the issuance of any
waivers in accordance with Section 412(d) of the Code unless
the present value of unfunded vested benefits under the
applicable Plan, as determined under PBGC Reg. Sec.
2615.16(b), is less than $5,000,000); and any request for a
waiver under Section 412(d) of the Code for any Plan;
(ii) the distribution under Section 4041 of
ERISA of a notice of intent to terminate any Plan or
any action taken by the Company or an ERISA Affiliate
to terminate 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 from a
Multiemployer Plan by the Company or any ERISA
Affiliate that results in liability under Section 4201
or 4204 of ERISA (including the obligation to satisfy
secondary liability as a result of a purchaser default)
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;
(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 60 days; and
(vi) the adoption of an amendment to any Plan
that, pursuant to Section 401(a)(29) of the Code or
Section 307 of ERISA, would result in the loss of
tax-exempt status of the trust of which such Plan is a
part if the Company or an ERISA Affiliate fails to
timely provide security to the Plan in accordance with
the provisions of said Sections;
(f) promptly after the Company knows or has reason to
believe that any Default has occurred, a notice of such Default
specifying that such notice is a "Notice of Default" and
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 or proposes to take with
respect thereto; and
(g) from time to time such other information regarding
the Property, financial condition or operations 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 Lender or the
Administrative Agent may reasonably request.
The Company will furnish to the Agent with sufficient copies for the Agent to
deliver to each Lender, at the time it furnishes each set of financial
statements pursuant to paragraph (a) or (b) above, a certificate of a senior
financial officer (including the treasurer) 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 or 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 9.10 and 9.11 hereof as of
the end of the respective quarterly fiscal period or fiscal year.
9.02 Litigation. The Company will promptly give to each Lender notice
of all legal or arbitral proceedings,
-46-
Exhibit 10.1
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 (excluding, in any event, proceedings related to the promulgation of
laws or regulations of general applicability), affecting the Company or any of
its Subsidiaries, except proceedings which would not reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect.
Without limiting the generality of the foregoing, the Company will give to each
Lender notice of the assertion of any Environmental Claim by any Person against,
or with respect to the activities of, the Company or any of its Subsidiaries and
notice of any alleged violation of or non-compliance by the Company or any of
its Subsidiaries with any applicable Environmental Law or any permit, license or
authorization required under any such Environmental Law, other than any
Environmental Claim or alleged violation that, and any such non-compliance that,
would not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect.
9.03 Existence, Etc. The Company will, and will cause each of its
Subsidiaries (other than Unrestricted Subsidiaries and Released Guarantors) to:
(a) preserve and maintain its legal existence and
(unless the loss of the same would not have a material adverse
effect on the Company or such Subsidiary, as the case may be)
all of its material rights, privileges, licenses and franchises
(provided that nothing in this Section 9.03 shall prohibit any
transaction expressly permitted by Section 9.05 hereof);
(b) comply with the requirements of all applicable
laws, rules, regulations and orders of governmental or
regulatory authorities if failure to comply with such
requirements could, either individually or in the aggregate,
have a Material Adverse Effect;
(c) 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 in accordance with GAAP;
(d) maintain all of its Properties used or useful in
its business in good working order and condition, ordinary wear
and tear excepted;
(e) keep adequate records and books of account, in
which complete entries will be made in accordance with generally
accepted accounting principles consistently applied; and
(f) permit the Administrative Agent (and, if any
Default shall be continuing, any representatives of any Lender),
during normal business hours and upon reasonable prior written
notice (and in any event no less than two Business Days prior
notice), to examine, copy and make extracts from its books and
records, to inspect any of its Properties, and to discuss its
business and affairs with its officers, all to the extent
reasonably requested (as to both the manner of such examination,
copying, extracting, inspection or discussion, and the scope
thereof) by such Lender or the Administrative 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 or, to
the extent consistent with the practice of corporations of similar size engaged
in the retailing business, through self-insurance 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, and
with such deductibles and limits on coverage, as are customarily insured against
by such corporations and carry such other insurance as is usually carried by
such corporations.
9.05 Prohibition of Fundamental Changes
(a) The Company will not, and will not permit any of its Subsidiaries
(other than Unrestricted Subsidiaries
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Exhibit 10.1
and Released Guarantors) to, enter into any transaction of merger or
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution).
(b) The Company will not, and will not permit any of its Subsidiaries
(other than Unrestricted Subsidiaries and Released Guarantors) to, acquire any
business or Property from, or capital stock of, or be a party to any acquisition
of, any Person.
(c) The Company will not, and will not permit any of its Subsidiaries
(other than Unrestricted Subsidiaries and Released Guarantors) to, convey, sell,
lease, transfer or otherwise dispose of, in one transaction or a series of
transactions, any part of its business or Property, whether now owned or
hereafter acquired (including, without limitation, receivables and leasehold
interests).
(d) Notwithstanding the foregoing paragraphs of this Section 9.05:
(i) any Subsidiary of the Company may be merged or
consolidated with or into the Company, if the Company shall be
the continuing or surviving corporation, or with or into any
other Subsidiary (other than an Unrestricted Subsidiary or a
Released Guarantor) of the Company;
(ii) the Company or any of its Subsidiaries may
purchase inventory and other Property to be sold or used in the
ordinary course of business, make Investments permitted by
Section 9.08 hereof, make Capital Expenditures permitted by
Section 9.11 hereof and make Dividend Payments pursuant to
Section 9.09 hereof;
(iii) the Company or any of its Subsidiaries may
convey, sell, lease, transfer or otherwise dispose of (x)
obsolete or worn-out Property, tools or equipment no longer used
or useful in its business so long as the aggregate fair market
value thereof sold in any single fiscal year by the Company and
its Subsidiaries (other than Unrestricted Subsidiaries and
Released Guarantors) shall not exceed $20,000,000, and (y) any
inventory or other Property sold or disposed of in the ordinary
course of business and on ordinary business terms;
(iv) the Company or any Subsidiary of the Company may
acquire, or otherwise make Investments in, the capital stock of,
Equity Rights in, and/or assets of, companies the principal
business of which is substantially related or complementary to
the existing lines of business of the Company and its
Subsidiaries (including the financing of customer purchases)
("Related Businesses"), to the extent permitted by paragraph (j)
of Section 9.08 hereof; and
(v) the Company or any Subsidiary of the Company may
convey, sell, lease, transfer or otherwise dispose of, in one
transaction or a series of transactions, (x) any Equity Right in
any Released Guarantor or Unrestricted Subsidiary and (y) any
Equity Right held by the Company or such Subsidiary in any
Person that is not a Subsidiary of the Company.
9.06 Limitation on Liens. The Company will not, and will not permit
any of its Subsidiaries (other than an Unrestricted Subsidiary or a Released
Guarantor) to, create, incur, assume or suffer to exist any Lien upon any of its
Property, whether now owned or hereafter acquired, except:
(a) Liens created pursuant to the Security Documents or
pursuant to a mortgage granted for the benefit of the Lenders
pursuant to Section 9.11(c) hereof;
(b) Liens in existence on the date hereof and listed in
Part B of Schedule I hereto;
(c) Liens imposed by any governmental authority for
taxes, assessments or charges not yet due or
-48-
Exhibit 10.1
which are being contested in good faith and by appropriate proceedings
if, unless the amount thereof is not material with respect to it or its
financial condition, adequate reserves with respect thereto are
maintained on the books of the Company or the affected Subsidiaries, as
the case may be, in accordance with GAAP;
(d) carriers', warehousemen's, mechanics',
materialmen's, repairmen's, landlord's or other like Liens
arising in the ordinary course of business which are not overdue
for a period of more than 60 days or which are being contested
in good faith and by appropriate proceedings and Liens securing
judgments but only to the extent for an amount and for a period
not resulting in an Event of Default under Section 10(h) hereof;
(e) pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation;
(f) 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;
(g) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business
and encumbrances consisting of zoning restrictions, easements,
licenses, restrictions on the use of Property or minor
imperfections in title thereto which, in the aggregate, are not
material in amount, and which do not materially interfere with
the ordinary conduct of the business of the Company or any of
its Subsidiaries;
(h) Liens upon Property acquired after the date hereof
(by purchase, construction or otherwise) by the Company or any
of its Subsidiaries, each of which Liens was created solely for
the purpose of securing Indebtedness representing, or incurred
to finance, refinance or refund, the cost (including the cost of
construction) of such Property; provided that (i) no such Lien
shall extend to or cover any Property of the Company or such
Subsidiary other than the Property so acquired and improvements
thereon and (ii) the principal amount of Indebtedness secured by
any such Lien shall at no time exceed 90% of the fair market
value (as determined in good faith by a senior financial officer
(including the treasurer) of the Company) of such Property at
the time it was acquired (by purchase, construction or
otherwise);
(i) Liens on Margin Stock held by the Company or any of
its Subsidiaries (other than any capital stock of the Company or
any of its Subsidiaries); and
(j) any extension, renewal or replacement of the
foregoing; provided that the Liens permitted by this paragraph
shall not extend to or cover any additional Indebtedness or
Property (other than a substitution of like Property).
9.07 Indebtedness. The Company will not, and will not permit any of its
Subsidiaries to, create, incur or suffer to exist any Indebtedness except:
(a) Indebtedness to the Lenders hereunder;
(b) Indebtedness outstanding on the date hereof and
listed in Part A of Schedule I hereto;
(c) the Senior Subordinated Debt;
(d) Indebtedness of Subsidiaries of the Company to the
Company or to other Subsidiaries of the Company (other than
Unrestricted Subsidiaries);
-49-
Exhibit 10.1
(e) Capital Lease Obligations to the extent permitted
by Section 9.11 hereof;
(f) Indebtedness of Unrestricted Subsidiaries;
(g) Indebtedness of Released Guarantors;
(h) additional Indebtedness of the Company and its
Subsidiaries secured by Liens permitted under Section 9.06(h)
hereof in an aggregate amount up to but not exceeding
$40,000,000 at any one time outstanding; and
(i) additional unsecured Indebtedness of the Company
and its Subsidiaries in an aggregate principal amount up to but
not exceeding $100,000,000 at any one time outstanding during
the period from (and including) October 1 in any year to January
31 of the immediately following year; provided that, in each
case, the principal amount (together with any interest thereon)
of such additional unsecured Indebtedness shall be repaid in
full by the January 31 immediately following such October 1.
9.08 Investments. The Company will not, and will not permit any of its
Subsidiaries to, make or permit to remain outstanding any Investments except:
(a) Investments outstanding on the date hereof and
identified in Part B of Schedule II hereto;
(b) Investments constituting (i) operating deposit
accounts with banks and (ii) accounts receivable arising in the
ordinary course of business on ordinary business terms that are
not overdue;
(c) Permitted Investments (provided that any Permitted
Investment of the type described in clause (d) of the definition
thereof in Section 1.01 hereof that ceases to be rated "P-1" (or
higher) according to Xxxxx'x Investors Service, Inc. or "A-1"
(or higher) according to Standard and Poor's Corporation must be
liquidated by the Company within 60 days thereafter);
(d) Investments by the Company and its Subsidiaries in
capital stock of Subsidiaries of the Company to the extent
outstanding on the Closing Date and advances made after such
date by the Company and its Subsidiaries to Subsidiaries of the
Company (other than Unrestricted Subsidiaries and Released
Guarantors) in the ordinary course of business;
(e) Interest Rate Protection Agreements for an
aggregate notional amount not exceeding $300,000,000 at any one
time;
(f) loans and advances to employees not to exceed
$5,000,000 in the aggregate as to the Company and its
Subsidiaries at any one time outstanding;
(g) loans and advances by the Company and its
Subsidiaries to Unrestricted Subsidiaries and Released
Guarantors so long as the aggregate amount thereof at any one
time outstanding shall not exceed (i) during the period
commencing on the date hereof and ending on the last day of the
fiscal year of the Company ending on or nearest to January 31,
1999, $50,000,000, (ii) during the period commencing on the
first day of the fiscal year of the Company commencing on or
nearest to February 1, 1999 and ending on the last day of such
fiscal year, $60,000,000 and (iii) thereafter, $75,000,000;
(h) Investments by Unrestricted Subsidiaries;
(i) Investments by Released Guarantors;
-50-
Exhibit 10.1
(j) in addition to Investments made in any Released
Guarantor prior to the time it became a Released Guarantor,
additional Investments by the Company and its Subsidiaries, so
long as the aggregate amount paid by the Company and its
Subsidiaries for all such Investments (whether in the form of
cash or other consideration or in the form of liabilities
assumed), net of debt Investments that have been repaid, does
not exceed the sum of:
(i) $150,000,000, plus
(ii) for any period of four consecutive fiscal
quarters of the Company, the excess (if any) of (x) 50%
of Prior Year Excess Cash Flow for such period over (y)
the sum of (A) the aggregate amount of Dividend
Payments made pursuant to Section 9.09(b) hereof, to
the extent paid in reliance on Excess Cash Flow for
such period as contemplated by clause (y) thereof, plus
(B) the amount of Capital Expenditures made by the
Company and its Subsidiaries pursuant to Section
9.11(a)(iii) hereof in such period;
provided that if (x) not later than five Business Days prior to
any Investment pursuant to this paragraph (i) where the
aggregate amount of such Investment (including liabilities
assumed) exceeds $20,000,000, the Company will deliver to the
Agent in sufficient quantities for it to deliver to the Lenders
a certificate of a senior financial officer of the Company to
the effect that, after giving effect to such Investment, the
Company will be in compliance with Section 9.10 hereof, such
certificate to be in form and detail (including calculations)
reasonably satisfactory to the Administrative Agent;
(k) Equity Financed Investments;
(l) Investments to the extent made in capital stock of the
Company; and
(m) Investments made pursuant to Section 9.11(a)(ii) hereof.
9.09 Dividend Payments. The Company will not directly or indirectly,
through a Subsidiary or otherwise, declare or make any Dividend Payment at any
time; provided that the Company may declare and make Dividend Payments in cash:
(a) to any employee of the Company or any of its
Subsidiaries upon the termination of such employee's employment
with the Company or such Subsidiary; to the extent that (i) the
aggregate amount of such Dividend Payments does not exceed
$1,000,000 in any fiscal year of the Company and (ii) on the
date of any such Dividend Payment and after giving effect
thereto, no Default shall have occurred and be continuing;
(b) at any time after January 31, 1998, so long as on
the date of such Dividend Payment and after giving effect
thereto:
(i) no Default shall have occurred and be
continuing; and
(ii) the aggregate amount of Dividend Payments
made pursuant to this clause (b) shall not exceed the
sum of the following: (x) $50,000,000, plus (y) 50% of
cumulative Excess Cash Flow for the period commencing
on February 2, 1997, minus (z) the aggregate amount of
Investments made pursuant to Section 9.08(j)(ii) hereof
and the aggregate amount of Capital Expenditures made
pursuant to Section 9.11(a)(iii) hereof; and
(c) in respect of any Preferred Stock so long as on the
date of any such Dividend Payment and after giving effect
thereto, no Default shall have occurred and be continuing.
-51-
Exhibit 10.1
9.10 Financial Covenants
(a) Fixed Charge. The Company will not permit the Fixed Charge
Ratio for the last day of any fiscal quarter of the Company ending on or
nearest to the respective dates set forth below to be less than the ratio
set forth below opposite such date.
Fiscal Quarter-end Ratio
October 31, 1997 .92 to 1
January 31, 1998 1.20 to 1
April 30, 1998 1.05 to 1
July 31, 1998 1.05 to 1
October 31, 1998 1.05 to 1
January 31, 1999 1.20 to 1
April 30, 1999 1.20 to 1
July 31, 1999 1.20 to 1
October 31, 1999 1.20 to 1
January 31, 2000, and each
fiscal quarter thereafter 1.25 to 1
(b) Interest Coverage Ratio. The Company will not permit the Interest
Coverage Ratio for the last day of any fiscal quarter of the Company ending on
or nearest to the respective dates set forth below to be less than the ratio set
forth below opposite such date:
Fiscal Quarter-end Ratio
October 31, 1997 1.40 to 1
January 31, 1998 1.40 to 1
April 30, 1998 1.40 to 1
July 31, 1998 1.40 to 1
October 31, 1998 1.40 to 1
January 31, 1999 1.45 to 1
April 30, 1999 1.45 to 1
July 31, 1999 1.45 to 1
Exhibit 10.1
October 31, 1999 1.45 to 1
January 31, 2000, and each
fiscal quarter thereafter 1.50 to 1
(c) Leverage Ratio. The Company will not permit the Leverage
Ratio on the last day of any fiscal quarter of the Company ending on or
nearest to the respective dates set forth below to exceed the ratio set
forth below opposite such date:
Fiscal Quarter-end Ratio
October 31, 1997 4.20 to 1
January 31, 1998 2.10 to 1
April 30, 1998 3.00 to 1
July 31, 1998 3.00 to 1
October 31, 1998 3.00 to 1
January 31, 1999 2.25 to 1
April 30, 1999 2.50 to 1
July 31, 1999 2.50 to 1
October 31, 1999 2.50 to 1
January 31, 2000 2.00 to 1
April 30, 2000 2.25 to 1
July 31, 2000 2.25 to 1
October 31, 2000 2.25 to 1
January 31, 2001 1.75 to 1
April 30, 2001 2.25 to 1
July 31, 2001 2.25 to 1
October 31, 2001 2.25 to 1
January 31, 2002 1.75 to 1
April 30, 2002 2.25 to 1
July 31, 2002 2.25 to 1
9.11 Capital Expenditures; Sale Lease-backs; Etc.
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Exhibit 10.1
(a) Limit on Capital Expenditures. The Company will not permit
the aggregate amount of Capital Expenditures (other than Equity Financed
Capital Expenditures) in any fiscal year of the Company to exceed the sum
of the following:
(i) for each fiscal year ending on or nearest
to the respective dates set forth below, the amount set
forth opposite such date:
Fiscal Year End Amount
January 31, 1997 $150,000,000
January 31, 1998 $150,000,000
January 31, 1999 $175,000,000
January 31, 2000 $190,000,000
January 31, 2001 $190,000,000
January 31, 2002 $190,000,000; plus
(ii)for such fiscal year, an amount not to
exceed 75% of the aggregate amount of Capital
Expenditures permitted by clause (i) of this Section
9.11(a) for the immediately preceding fiscal year (the
"Carryforward Amount") and not made in such immediately
preceding fiscal year (or, instead of using the
Carryforward Amount to make additional Capital
Expenditures in such fiscal year, all or any portion of
the Carryforward Amount may be used to make Investments
in such fiscal year); plus
(iii) for any period of four consecutive
fiscal quarters of the Company, an additional amount
not to exceed the excess (if any) of (x) 50% of Prior
Year Excess Cash Flow for such period over (y) the sum
of (A) the aggregate amount of Dividend Payments made
pursuant to Section 9.09(b) hereof, to the extent paid
in reliance on Excess Cash Flow for such period as
contemplated by clause (y) thereof, plus (B) the amount
of Investments made by the Company and its Subsidiaries
pursuant to Section 9.08(j)(ii) hereof in such fiscal
year.
For purposes of making determinations under this Section 9.11(a), any
Capital Expenditures shall be allocated first to Equity Financed Capital
Expenditures (to the extent permitted under the definition of "Equity
Financed" in Section 1.01 hereof) and then to the maximum amount of
Capital Expenditures permitted under this Section 9.11(a).
(b) Specified Capital Expenditures. The Company shall not permit
the aggregate amount of expenditures with respect to Projects that have
not yet been made the subject of a Sale Lease-back to exceed $50,000,000
at any time.
(c) Mortgages. If any Project shall not have become the subject
of a Sale Lease-back within 24 months after the first Capital
Expenditures are made with respect to such Project, the Company shall,
within 30 days after the end of such 24th month, deliver or cause to be
delivered to the Administrative Agent one or more mortgages or deeds of
trust and related fixture filings, in form and substance satisfactory to
the Administrative Agent, covering the real property and fixtures (other
than leased fixtures) included in such Project and securing the
obligations of the Obligors hereunder and under the Notes, and shall
cause the same to be duly recorded in the appropriate offices so that
such mortgage or deed of trust constitutes a first priority mortgage Lien
in and to all of such real property and fixtures. Any such mortgage or
deed of trust shall provide that, so long as no Default is continuing,
(i) the Lenders shall release such mortgage or deed of trust to permit
the sale of such real property and (ii) the proceeds of any such sale
need not be applied to the obligations of the Company hereunder.
9.12 Subordinated Indebtedness. Neither the Company nor any of its
Subsidiaries will defease, purchase,
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Exhibit 10.1
redeem, retire, exchange any securities for or otherwise acquire for value, or
set apart any money or obligations for a sinking, defeasance or other analogous
fund for, the purchase, redemption, retirement or other acquisition of, or make
any voluntary payment or prepayment of the principal of or interest on, or any
other amount owing in respect of, the Senior Subordinated Debt, except for (a)
regularly scheduled payments of principal and interest in respect thereof
required to be made pursuant to the Senior Subordinated Debt Documents to the
extent permitted to be made by the subordination provisions thereof and (b) the
redemption of the Outstanding Subordinated Notes contemplated by Section 9.15
hereof.
9.13 Lines of Business. The Company will not, and will not permit any
of its Subsidiaries to, engage in any line or lines of business activity other
than those engaged in by them on the Closing Date, any Related Businesses and
any other lines of business (in, or in connection with, any medium) related to,
or complementary with, the selling of books.
9.14 Transactions with Affiliates. Except as expressly permitted by
this Agreement, the Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly:
(a) make any Investment in an Affiliate of the Company or in
any of its Subsidiaries;
(b) transfer, sell, lease, assign or otherwise dispose of
any Property to any such Affiliate;
(c) merge into or consolidate with or purchase or
acquire Property from any such Affiliate; or
(d) enter into any other transaction directly or
indirectly with or for the benefit of any such Affiliate
(including, without limitation, Guarantees and assumptions of
obligations of any such Affiliate);
provided that (i) any Affiliate of the Company or any of its Subsidiaries
who is an individual may serve as a director, officer or employee of the
Company or any of its Subsidiaries and receive reasonable compensation
for his or her services in such capacity, (ii) the Company and its
Subsidiaries may enter into transactions (other than Investments by the
Company or any of its Subsidiaries in any Affiliate of the Company or any
of its Subsidiaries) in the ordinary course of business if the monetary
or business consideration arising therefrom would be substantially as
advantageous to the Company and its Subsidiaries as the monetary or
business consideration which would obtain in a comparable transaction
with a Person not an Affiliate of the Company or any of its Subsidiaries,
(iii) Investments may be made in Affiliates to the extent permitted under
Section 9.08 hereof and (iv) any Unrestricted Subsidiary or Released
Guarantor may enter into any transaction with a Person not an Affiliate
of the Company.
9.15 Use of Proceeds. The Company will use the proceeds of the Loans
hereunder solely to repay Indebtedness as contemplated by Section 7.01(h)
hereof, to finance Capital Expenditures permitted by Section 9.11 hereof, to
acquire Related Businesses and make other Investments as contemplated by Section
9.08 hereof, to redeem up to $190,000,000 face amount of the Outstanding
Subordinated Notes (and to pay any related fees and premiums), and for general
corporate purposes, including, without limitation, in connection with the
activities contemplated or permitted by this Agreement to be undertaken by the
Company and its Subsidiaries (in compliance with all applicable legal and
regulatory requirements); provided that (a) $200,000,000 of the Commitments
shall be used solely to redeem Outstanding Subordinated Notes (and to pay any
related fees and premiums), and (b) neither the Administrative Agent nor any
Lender shall have any responsibility as to the use of any of such proceeds.
9.16 Certain Obligations Respecting Subsidiaries
(a) Subject to Section 9.05 hereof, the Company will, and will
cause each of its Subsidiaries (other than Unrestricted Subsidiaries and
Released Guarantors) to, take such action from time to time as shall be
necessary to ensure that each of its Subsidiaries (other than
Unrestricted Subsidiaries and Released Guarantors) is, except for any
Permitted Management Ownership, a Wholly Owned Subsidiary.
-55-
Exhibit 10.1
(b) Without limiting the generality of the foregoing (but subject to
Section 9.05 hereof), the Company will not, and will not permit any of its
Subsidiaries (other than any Unrestricted Subsidiary or Released Guarantor) to,
convey, sell, transfer or otherwise dispose of any shares of capital stock of
any Subsidiary (other than an Unrestricted Subsidiary or a Released Guarantor)
owned by them, nor permit any such Subsidiary (other than an Unrestricted
Subsidiary or a Released Guarantor) to issue any shares of capital stock of any
class whatsoever to any Person (other than to the Company or another Obligor),
except for any Permitted Management Ownership. In the event that any such
additional shares of stock (other than any shares representing any Permitted
Management Ownership) shall be issued by any such Subsidiary, the respective
Obligor agrees forthwith to deliver to the Administrative Agent pursuant to the
Security Agreement the certificates representing such shares of stock,
accompanied by undated stock powers executed in blank and shall take such other
action as the Administrative Agent shall request to perfect the security
interest created therein pursuant to the Security Agreement.
9.17 Additional Subsidiary Guarantors. In the event that the Company
shall, after the date hereof, hold or acquire any Subsidiary (other than an
Unrestricted Subsidiary or a Released Guarantor) that is not a Subsidiary
Guarantor hereunder, the Company will, and will cause each of its Subsidiaries
to, cause such Subsidiary (a) to execute and deliver a written instrument in
form and substance satisfactory to the Administrative Agent pursuant to which
such Subsidiary shall become a "Subsidiary Guarantor" and, thereby, an "Obligor"
hereunder and (b) to deliver such proof of corporate action, incumbency of
officers, opinions of counsel and other documents as is consistent with that
delivered by each Obligor pursuant to Section 7.01 hereof on the Closing Date or
as the Majority Lenders or the Administrative Agent shall have reasonably
requested.
9.18 Modifications of Certain Documents
(a) The Company will not consent to any modification, supplement
or waiver of any provision of the Senior Subordinated Debt Documents
unless the same (x) results in more favorable terms or conditions for the
Company and (y) would not reasonably be expected to have a material
adverse effect on the interests of the Administrative Agent or the
Lenders.
(b) The Company will not consent to any modification, supplement
or waiver of any of the provisions of the License Agreement that would
reasonably be expected to have a material adverse effect on the interests
of the Administrative Agent or the Lenders.
9.19 Sales of Accounts. At all times during which the Company is not
Investment Grade, the Company will not, and will not permit any of its
Subsidiaries (other than Unrestricted Subsidiaries and Released Guarantors) to,
sell with or without recourse, or discount or otherwise sell for less than the
face value thereof, any of their notes or accounts receivable (or any portion
thereof), except for compromises made in the ordinary course of business.
9.20 Release of Collateral. At any time that the Company is Investment
Grade, the Agent shall, at the request of the Company, release all of the
Collateral from the Lien of the Security Agreement.
Section 10. Events of Defaults. If one or more of the following events
(herein called "Events of Default") shall occur and be continuing:
(a) The Company shall: (i) default in the payment of
any principal of any Loan or any Reimbursement Obligation when
due (whether at stated maturity or upon mandatory or optional
prepayment); or (ii) default in the payment of any interest on
any Loan, any fee or any other amount payable by it hereunder or
under any other Basic Document when due and such default shall
have continued unremedied for three or more Business Days; or
(b) The Company or any of its Significant Subsidiaries
shall default in the payment when due of any principal of or
interest on any of its Indebtedness aggregating $25,000,000 or
more (other than the
-56-
Exhibit 10.1
Indebtedness referred to in paragraph (a) above); or any event
specified in any note, agreement, indenture or other document
evidencing or relating to any such Indebtedness or any event specified
in any Interest Rate Protection Agreement 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 prepaid in full (whether by
redemption, purchase, offer to purchase or otherwise), prior to its
stated maturity or to have the interest rate thereon reset to a level
so that securities evidencing such Indebtedness trade at a level
specified in relation to the par value thereof or, in the case of an
Interest Rate Protection Agreement, to permit the payments owing under
such Interest Rate Protection Agreement to be liquidated; or
(c) Any representation, warranty or certification made
or deemed made herein or in any other Basic Document (or in any
modification or supplement hereto or thereto) by any Obligor, or
any certificate furnished to any Lender or the Administrative
Agent pursuant to the provisions hereof or thereof, shall prove
to have been false or misleading as of the time made, deemed
made or furnished in any material respect, and (if such false or
misleading representation is reasonably likely to be capable of
being promptly made to be no longer false and misleading by
actions of the Company) the same shall continue unremedied for
at least 30 days after any executive officer of the Company
knows or has reason to believe that such representation,
warranty or certification is false or misleading; or
(d) (i) The Company shall default in the performance of
any of its obligations under any of Sections 9.01(f), 9.03(a),
9.05, 9.06, 9.07, 9.08, 9.09, 9.10, 9.11, 9.12 or 9.14 hereof;
or (ii) any Obligor shall default in the performance of any of
its obligations under Section 4.02 or 5.02 of the Security
Agreement; or (iii) any Obligor shall default in the performance
of any of its other obligations in this Agreement or any other
Basic Document and such default (if remediable) shall continue
unremedied for a period of 30 days after notice thereof to the
Company by the Administrative Agent or any Lender (through the
Administrative Agent); or
(e) The Company or any of its Significant 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 Significant Subsidiaries
shall (i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee,
examiner 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, (iv) file a petition seeking to take advantage
of any other law relating to bankruptcy, insolvency,
reorganization, liquidation, dissolution, arrangement or
winding-up, or composition or readjustment of its 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
corporate 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
Significant Subsidiaries, in any court of competent
jurisdiction, seeking (i) its reorganization, liquidation,
dissolution, arrangement or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a receiver,
custodian, trustee, examiner, liquidator or the like of the
Company or such Significant Subsidiary or of all or any
substantial part of its Property, or (iii) similar relief in
respect of the Company or such Significant 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
(other than an order for relief in an involuntary case under the
Bankruptcy Code) 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 Significant Subsidiary shall be
entered in an involuntary case under the Bankruptcy Code; or
-57-
Exhibit 10.1
(h) A judgment or judgments for the payment of money in
excess of $25,000,000 in the aggregate (exclusive of judgment
amounts to the extent covered by insurance where the insurer has
admitted liability in respect of such judgment) shall be
rendered by one or more courts, administrative tribunals or
other bodies having jurisdiction against the Company or any of
its Significant 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 45
days from the date of entry thereof and the Company or the
relevant Significant Subsidiary shall not, within said period of
45 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 a liability to a Plan, a
Multiemployer Plan or PBGC (or any combination of the foregoing)
which has a Material Adverse Effect; or
(j) There shall have been asserted against the Company
or any of its Significant Subsidiaries claims or liabilities,
whether accrued, absolute or contingent, based on or arising
from the generation, storage, transport, handling or disposal of
Hazardous Materials by the Company or any of its Subsidiaries or
Affiliates, or any predecessor in interest of the Company or any
of its Subsidiaries or Affiliates, or relating to any site or
facility owned, operated or leased by the Company or any of its
Subsidiaries or Affiliates, which claims or liabilities (insofar
as they are payable by the Company or any of its Significant
Subsidiaries but after deducting any portion thereof which is
reasonably expected to be paid by other Persons jointly and
severally liable therefor), in the judgment of the Majority
Lenders are reasonably likely to be determined adversely to the
Company or any of its Significant Subsidiaries, and the amount
thereof is, either individually or in the aggregate, reasonably
likely to have a Material Adverse Effect; or
(k) Any Change of Control shall occur; or
(l) Except for expiration in accordance with its terms,
any of the Security Documents shall be terminated or shall cease
to be in full force and effect, for whatever reason; or at any
time after the Closing Date the Administrative Agent shall not
have (for the benefit of the Lenders), as collateral security
for the Secured Obligations referred to in the Security
Agreement, a valid prior perfected first Lien on and security
interest in the Properties intended to be covered by the
Security Documents, in each case subject to no equal or prior
Liens; or any of the Guarantees set forth in Section 6 hereof
shall cease to be in full force and effect for any reason;
THEREUPON: (1) in the case of an Event of Default other than one referred
to in paragraph (e), (f) or (g) of this Section 10 with respect to any
Obligor, the Administrative Agent may and, upon request of the Majority
Lenders, shall, by notice to the Company, terminate the Commitments
and/or declare all or any portion the principal amount then outstanding
of, and the accrued interest on, the Loans, the Reimbursement Obligations
and all other amounts payable by the Obligors hereunder and under the
Notes (including, without limitation, any amounts payable under Section
5.05 or 5.06 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 each Obligor; and (2) in the case of the occurrence
of an Event of Default referred to in paragraph (e), (f) or (g) of this
Section 10 with respect to any Obligor, the Commitments shall
automatically be terminated and the principal amount then outstanding of,
and the accrued interest on, the Loans, the Reimbursement Obligations and
all other amounts payable by the Obligors hereunder and under the Notes
(including, without limitation, any amounts payable under Section 5.05 or
5.06 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 each Obligor.
-58-
Exhibit 10.1
In addition, if the Administrative Agent (or the Majority
Lenders through the Administrative Agent) so requests by notice to the
Company upon or following a declaration by the Administrative Agent
pursuant to the preceding paragraph that the principal amount then
outstanding of, and accrued interest on, the Loans and Reimbursement
Obligations and all other amounts payable by the Company hereunder and
under the Notes have become due and payable, the Company shall (and, in
the case of any Event of Default referred to in paragraph (e), (f) or (g)
of this Section 10 with respect to any Obligor, forthwith, without any
demand or the taking of any other action by the Administrative Agent or
such Lenders) provide cover for the Letter of Credit Liabilities by
paying to the Administrative Agent immediately available funds in an
amount equal to the then aggregate undrawn face amount of all Letters of
Credit, which funds shall be held by the Administrative Agent in the
Collateral Account subject to and in accordance with the terms of the
Security Agreement.
Section 11. The Administrative Agent
11.01 Appointment, Powers and Immunities. Each Lender hereby
irrevocably (subject to Section 11.08 hereof) appoints and authorizes the
Administrative Agent to act as its agent hereunder and under the other Basic
Documents with such powers as are specifically delegated to the Administrative
Agent by the terms of this Agreement and of the other Basic Documents, together
with such other powers as are reasonably incidental thereto. The Administrative
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 in the other Basic Documents, and shall not by reason of this
Agreement or any other Basic Document be a trustee for any Lender; (b) shall not
be responsible to the Lenders for any recitals, statements, representations or
warranties contained in this Agreement or in any other Basic Document, or in any
certificate or other document referred to or provided for in, or received by any
of them under, this Agreement or any other Basic Document, or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement, any Note or any other Basic Document or any other document referred
to or provided for herein or therein or for any failure by the Company or any
other Person to perform any of its obligations hereunder or thereunder; (c)
shall not be required (except to the extent expressly required under Section
11.03 hereof) to initiate or conduct any litigation or collection proceedings
hereunder or under any other Basic Document; and (d) shall not be responsible
for any action taken or omitted to be taken by it hereunder or under any other
Basic Document or under any other document or instrument referred to or provided
for herein or therein or in connection herewith or therewith, except for its own
gross negligence or willful misconduct. The Administrative 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 Administrative Agent may deem and treat the payee of any Note as the holder
thereof for all purposes hereof unless and until a notice of the assignment or
transfer thereof shall have been filed with the Administrative Agent, together
with the consent of the Company to such assignment or transfer (to the extent
provided in Section 12.06(b) hereof).
11.02 Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely upon any certification, notice or other communication
(including, without limitation, any thereof by telephone, telecopy, telex,
telegram or cable) reasonably 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 Administrative Agent. As to any matters not expressly
provided for by this Agreement or any other Basic Document, the Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder or thereunder in accordance with instructions given by the
Majority Lenders, and such instructions of the Majority Lenders and any action
taken or failure to act pursuant thereto shall be binding on all of the Lenders.
11.03 Defaults. The Administrative 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, Reimbursement Obligations
-59-
Exhibit 10.1
or of commitment fees) unless the Administrative Agent has received notice from
a Lender or the Company specifying such Default and stating that such notice is
a notice of default. In the event that the Administrative Agent receives such a
notice of the occurrence of a Default, the Administrative Agent shall give
prompt notice thereof to the Lenders (and shall give each Lender prompt notice
of each such non-payment). The Administrative Agent shall (subject to Sections
11.07 and 12.04 hereof) take such action with respect to such Default as shall
be directed by the Majority Lenders, provided that, unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem advisable in
the best interest of the Lenders except to the extent that this Agreement
expressly requires that such action be taken, or not be taken, only with the
consent or upon the authorization of the Majority Lenders or all of the Lenders.
11.04 Rights as a Lender. With respect to its Commitments and the Loans
made by it, Chase (and any successor acting as Administrative Agent) in its
capacity as a Lender hereunder shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not acting as
the Administrative Agent, and the term "Lender" or "Lenders" shall, unless the
context otherwise indicates, include the Administrative Agent in its individual
capacity. Chase (and any successor acting as Administrative Agent) and its
affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Obligors (and any of their
Subsidiaries or Affiliates) as if it were not acting as the Administrative
Agent, and Chase and its affiliates may accept fees and other consideration from
the Obligors for services in connection with this Agreement or otherwise without
having to account for the same to the Lenders.
11.05 Indemnification. The Lenders agree to indemnify the
Administrative 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 the aggregate principal amount of the Loans and
Reimbursement Obligations held by the Lenders (or, if no Loans or Reimbursement
Obligations are at the time outstanding, 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 that may be imposed on, incurred by or
asserted against the Administrative Agent (including by any Lender) arising out
of or by reason of any investigation in or in any way relating to or arising out
of this Agreement or any other Basic Document or any other documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby (including, without limitation, the costs and
expenses that 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 thereof or of
any such other documents, provided that no Lender 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 Administrative Agent and Other Lenders. Each
Lender agrees that it has, independently and without reliance on the
Administrative Agent or any other Lender, 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 Administrative Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement. The Administrative Agent shall
not be required to keep itself informed as to the performance or observance by
any Obligor of this Agreement or any of the other Basic Documents or any other
document referred to or provided for herein or therein 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 Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition or business of the Company or any of its Subsidiaries (or any of their
affiliates) that may come into the possession of the Administrative Agent or any
of its affiliates.
-60-
Exhibit 10.1
11.07 Failure to Act. Except for action expressly required of the
Administrative Agent hereunder and under the other Basic Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction from the Lenders of their indemnification
obligations under Section 11.05 hereof against any and all liability and expense
that may be incurred by it by reason of taking or continuing to take any such
action.
11.08 Resignation or Removal of Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving notice thereof
to the Lenders and the Company, and the Administrative Agent may be removed at
any time with or without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall have the right (after
consultation with and, if no Default is then continuing, approval by, the
Company) to appoint a successor Administrative Agent; provided that such
successor Administrative Agent shall have total assets in excess of
$50,000,000,000. If no successor Administrative Agent shall have been so
appointed by the Majority Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent's giving of notice of
resignation or the Majority Lenders' removal of the retiring Administrative
Agent, then the retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent, that shall be a bank that has an
office in New York, New York and shall have total assets in excess of
$50,000,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative 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 Administrative Agent.
11.09 Agency Fee. So long as the Commitments are in effect and until
payment in full of the principal of and interest on the Loans and all other
amounts payable by the Company hereunder, the Company will pay to the
Administrative Agent an agency fee in the amount specified in the Fee Letter,
payable annually in advance commencing on the date of execution and delivery of
this Agreement by all parties hereto and on each anniversary thereof. Such fee,
once paid, shall be non-refundable.
11.10 Consents under Basic Documents. Except as otherwise provided in
Section 12.04 hereof with respect to this Agreement, the Administrative Agent
may, with the prior consent of the Majority Lenders (but not otherwise), consent
to any modification, supplement or waiver under any of the Basic Documents,
provided that, without the prior consent of each Lender, the Administrative
Agent shall not (except as provided herein or in the Security Documents) release
any collateral or otherwise terminate any Lien under any Basic Document
providing for collateral security, or agree to additional obligations being
secured by such collateral security (unless the Lien for such additional
obligations shall be junior to the Lien in favor of the other obligations
secured by such Basic Document).
Section 12. Miscellaneous
12.01 Waiver. No failure on the part of the Administrative Agent or any
Lender 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, requests and other communications provided
for herein and under the Security Documents (including, without limitation, any
modifications of, or waivers, requests or consents under, this
-61-
Exhibit 10.1
Agreement) shall be given or made in writing (including, without limitation, by
telex or telecopy) delivered to the intended recipient at the "Address for
Notices" specified below its name on the signature pages hereof (below the name
of the Company, in the case of any Subsidiary Guarantor); 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 or personally delivered by hand or overnight courier or, in the
case of a notice sent by first class certified mail, postage prepaid, three days
after mailing in each case given or addressed as aforesaid.
12.03 Expenses, Etc. The Company agrees to pay or reimburse each of
the Lenders and the Administrative Agent for paying: (a) all reasonable
out-of-pocket costs and expenses of the Administrative Agent (including, without
limitation, the reasonable fees and expenses of Xxxxx, Xxxxx & Xxxxx, special
New York counsel to Chase, CIBC and ING), in connection with (i) the
negotiation, preparation, execution and delivery of this Agreement and the other
Basic Documents and the extensions of credit hereunder, (ii) any modification,
supplement or waiver of any of the terms of this Agreement or any of the other
Basic Documents and (iii) any release of Collateral pursuant to Section 9.20
hereof; (b) all costs and expenses of the Lenders and the Administrative Agent
(including, without limitation, reasonable counsels' fees) in connection with
(i) any Default, any waiver whatsoever thereof, and any enforcement or
collection proceedings resulting therefrom or in connection with the negotiation
of any restructuring or "work-out" (whether or not consummated) of the
obligations of the Company hereunder or under any of the other Basic Documents
and (ii) the enforcement of this Section 12.03; 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 or any of the
other Basic Documents or any other document referred to herein or therein and
all costs, expenses, taxes, assessments and other charges incurred in connection
with any filing, registration, recording or perfection of any security interest
contemplated by any Basic Document or any other document referred to therein.
The Company hereby agrees to indemnify the Administrative Agent
and each Lender and their respective directors, officers, employees,
attorneys and agents from, and hold each of them harmless against, any
and all losses, liabilities, claims, damages or expenses incurred by any
of them (including, without limitation, any and all losses, liabilities,
claims, damages or expenses incurred by the Administrative Agent to any
Lender, whether or not the Administrative Agent or any Lender is a party
thereto but excluding costs or expenses incurred in connection with
negotiating, documenting or effecting any assignment or participation
made pursuant to Section 12.06 hereof) arising out of or by reason of any
investigation or litigation or other proceedings (including any
threatened investigation or litigation or other proceedings) relating to
the extensions of credit hereunder or any actual or proposed use by the
Company or any of its Subsidiaries of the proceeds of any of the
extensions of credit hereunder, including, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with
any such investigation or litigation or other proceedings (but excluding
any such losses, liabilities, claims, damages or expenses incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified), and each Obligor party hereto hereby agrees not to assert
any claim against the Administrative Agent, any Lender, any of their
affiliates or any of their respective directors, officers, employees,
attorneys and agents, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to
any of the transactions contemplated herein or in any other Basic
Document. Without limiting the generality of the foregoing, the Company
will (i) indemnify the Administrative Agent for any payments that the
Administrative Agent is required to make under any indemnity issued to
any bank referred to in Section 4.02 of the Security Agreement to which
remittances in respect to Accounts, as defined therein, are to be made
and (ii) indemnify the Administrative Agent and each Lender from, and
hold the Administrative Agent and each Lender harmless against, any
losses, liabilities, claims, damages or expenses described in the
preceding sentence (but excluding, as provided in the preceding sentence,
any loss, liability, claim, damage or expense incurred by reason of the
gross negligence or willful misconduct of the Person to be indemnified)
arising under any Environmental Law as a result of the past, present or
future operations of the Company or any of its Subsidiaries (or any
predecessor in interest to the Company or any of its Subsidiaries), or
the past, present or future condition of any site or facility owned,
operated or leased by the Company or any of its Subsidiaries (or any such
predecessor in interest), or any Release or threatened Release of any
Hazardous Materials from any such site or facility, including any such
Release or threatened Release which shall occur during any period when
the
-62-
Exhibit 10.1
Administrative Agent or any Lender shall be in possession of any such
site or facility following the exercise by the Administrative Agent or
any Lender of any of its rights and remedies hereunder or under any of
the Security Documents unless such Release is solely the direct result of
avoidable conduct on the part of the Administrative Agent or such Lender.
12.04 Amendments, Etc. .Except as otherwise expressly provided in
this Agreement, any provision of this Agreement may be modified or supplemented
only by an instrument in writing signed by the Company, the Administrative Agent
and the Majority Lenders, or by the Company and the Administrative Agent acting
with the consent of the Majority Lenders, and any provision of this Agreement
may be waived by the Majority Lenders or by the Administrative Agent acting with
the consent of the Majority Lenders; provided that:
(a) no modification, supplement or waiver shall, unless
by an instrument signed by all of the Lenders or by the
Administrative Agent acting with the consent of all of the
Lenders (i) increase or extend the term of the Commitments, 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, the
Reimbursement Obligations or any fee hereunder (other than any
fee payable solely for account of the Administrative Agent, the
Swingline Bank or the Issuing Bank), (iii) reduce the amount of
any such payment of principal or Reimbursement Obligations, (iv)
reduce the rate at which interest is payable thereon or any fee
is payable hereunder (other than any fee payable solely for
account of the Administrative Agent, the Swingline Bank or the
Issuing Bank), (v) increase the rights or reduce the obligations
of the Company to prepay Loans, (vi) alter the terms of any of
Sections 4.02, 4.07 and 11.10 hereof or this Section 12.04,
(vii) modify the definitions of the terms "Majority Lenders" or
modify in any other manner the number or percentage of the
Lenders required to make any determinations or waive any rights
hereunder or to modify any provision hereof, (viii) waive any of
the conditions precedent set forth in Section 7 hereof, (ix)
release any Subsidiary Guarantor from any of its obligations
under Section 6 hereof (except as provided in Section 6.09
hereof) or (x) permit any Obligor to sell all or substantially
all of its Property (except as expressly provided in this
Agreement); and
(b) any modification of any of the rights or
obligations of the Administrative Agent, the Swingline Bank or
the Issuing Bank hereunder shall require the consent of the
Administrative Agent, the Swingline Bank or the Issuing Bank (as
the case may be).
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) No Obligor may assign any of its rights or obligations
hereunder or under the Notes without the prior consent of all of the
Lenders and the Administrative Agent.
(b) Each Lender may, at any time or from time to time, assign to
one or more other Eligible Assignees or other Lenders all or any portion
of its Revolving Credit Loans, its Revolving Credit Notes, its
Commitments, and its Letter of Credit Interest (but only with the consent
of the Company and the Administrative Agent (which consents shall not be
unreasonably withheld or delayed) and, in the case of a Revolving Credit
Commitment or a Letter of Credit Interest, the Issuing Bank and, in the
case of a Revolving Credit Commitment, the Swingline Bank); provided that
(i) no such consent by the Company shall be required if any Event of
Default shall have occurred and be continuing at the time of such
assignment; (ii) any such partial assignment (other than any such
assignment to another Lender) shall be in an amount at least equal to
$10,000,000 and, after giving effect thereto, the assignor shall have a
Revolving Credit Commitment at least equal to $10,000,000; and (iii) each
such assignment shall be made in such manner so that the same portion of
the assigning Lender's Revolving Credit Loans, Revolving Credit Note,
Revolving Credit Commitment, and Letter of Credit Interest is assigned to
the respective assignee. Upon execution
-63-
Exhibit 10.1
and delivery by the assignee to the Company, the Administrative Agent and the
Issuing Lender of an instrument in writing pursuant to which such assignee
agrees to become a "Lender" hereunder (if not already a Lender) having the
Commitments, Loans and, if applicable, Letter of Credit Interest specified in
such instrument, and upon consent thereto by the Company, the Administrative
Agent and the Issuing Lender, to the extent required above, the assignee shall
have, to the extent of such assignment (unless otherwise provided in such
assignment with the consent of the Company, the Administrative Agent and the
Issuing Bank), the obligations, rights and benefits of a Lender hereunder
holding the Commitments, Loans and, if applicable, Letter of Credit Interest (or
portions thereof) assigned to it (in addition to the Commitments, Loans and
Letter of Credit Interest, if any, theretofore held by such assignee) and the
assigning Lender shall, to the extent of such assignment, be released from the
Commitments (or portion thereof) so assigned. Upon each such assignment the
assigning Lender shall pay the Administrative Agent an assignment fee of $3,500.
(c) A Lender may, at any time or from time to time, sell or
agree to sell to one or more other Persons a participation in all or any
part of any Loans or Letter of Credit Interest held by it, or in its
Commitments, in which event each purchaser of a participation (a
"Participant") shall be entitled to the rights and benefits of the
provisions of Sections 9.01(g), 5.05, 5.06, 5.07 and 12.03 hereof with
respect to its participation in such Loans, Letter of Credit Interest and
Commitments as if (and the Company shall be directly obligated to such
Participant under such provisions as if) such Participant were a "Lender"
for purposes of said Section, but, except for the rights of the Lenders
under Section 4.06(c) hereof, shall not have any other rights or benefits
under this Agreement or any Note or any other Basic Document (the
Participant's rights against such Lender in respect of such participation
to be those set forth in the agreements executed by such Lender in favor
of the Participant). All amounts payable by the Company to any Lender
under Section 5 hereof in respect of the Loans and Letter of Credit
Interest held by it, and its Commitments, shall be determined as if such
Lender had not sold or agreed to sell any participations in such Loans,
Letter of Credit Interest and Commitments, and as if such Lender were
funding each of such Loan, Letter of Credit Interest and Commitments in
the same way that it is funding the portion of such Loan, Letter of
Credit Interest and Commitments in which no participations have been
sold. In no event shall a Lender that sells a participation agree with
the Participant to take or refrain from taking any action hereunder or
under any other Basic Document except that such Lender may agree with the
Participant that such Lender will not, without the consent of the
Participant, agree to (i) increase or extend the term, or extend the time
or waive any requirement for the reduction or termination, of such
Lender's Commitments, (ii) extend any date fixed for the payment of
principal of or interest on the related Loan or Loans, Reimbursement
Obligations or any portion of any fee hereunder payable to the
Participant, (iii) reduce the amount of any such payment of principal,
(iv) reduce the rate at which interest is payable thereon, or any fee
hereunder payable to the Participant, to a level below the rate at which
the Participant is entitled to receive such interest or fee, (v) increase
the rights or reduce the obligations of the Company to prepay the related
Loans or (vi) consent to any modification, supplement or waiver of this
Agreement or any of the other Basic Documents to the extent that the
same, under Section 11.10 or 12.04 hereof, requires the consent of each
Lender.
(d) In addition to the assignments and participations permitted
by the foregoing provisions of this Section 12.06, any Lender may assign
and pledge all or any portion of its Loans and its Note to any Federal
Reserve Bank as collateral security pursuant to Regulation A and any
Operating Circular issued by such Federal Reserve Bank, and such Loans
and Note shall be fully transferrable as provided therein. No such
assignment shall release the assigning Lender from its obligations
hereunder.
(e) A Lender may furnish any information concerning the Company
or any of its Subsidiaries in the possession of such Lender from time to
time to assignees and participants (including prospective assignees and
participants), subject, however, to the provisions of Section 12.13
hereof.
(f) Anything in this Section 12.06 to the contrary
notwithstanding, neither the Company nor any of its Subsidiaries or
Affiliates may acquire (whether by assignment, participation or
otherwise), and no Lender shall assign or participate to the Company or
any of its Subsidiaries or Affiliates, any interest in any Commitments,
Loan or Reimbursement Obligation without the prior consent of each
Lender.
-64-
Exhibit 10.1
(g) The Swingline Bank may not assign or sell participations in
all or any part of its Swingline Loans, the Swingline Note or the
Swingline Commitment; provided that the Swingline Bank may assign to
another Lender all of its obligations, rights and benefits in respect of
the Swingline Loans, the Swingline Note and the Swingline Commitment with
the consent of the Company (such consent not to be unreasonably withheld
or delayed). The Company may, from time to time, upon at least 30 days
prior notice, replace the Lender then acting as Swingline Bank with one
or more other Lenders, or add one or more other Lenders as additional
Swingline Banks (and, if so replaced with more than one other Lender, or
any other Swingline Banks are so added, such Lenders acting as Swingline
Bank shall enter into arrangements to ensure compliance with the terms
and conditions hereof relating to the Swingline Commitment). Upon the
effectiveness of any such assignment, the assignee shall have the
obligations, rights and benefits of the Swingline Bank hereunder, and the
Swingline Bank shall be released from the Swingline Commitment.
12.07 Survival. The obligations of the Company under Sections 5.01,
5.05, 5.06, 5.07 and 12.03 hereof, the obligations of each Subsidiary Guarantor
under Section 6.03 hereof, and the obligations of the Lenders under Section
11.05 and Section 12.13 hereof shall survive the repayment of the Loans and
Reimbursement Obligations and the termination of the Commitments for a period of
two years (provided that any claim or demand made by the Administrative Agent or
any Lender with respect to any such obligation prior to the end of such two-year
period shall survive the expiration of such period). In addition, each
representation and warranty made, or deemed to be made by a notice of any
extension of credit (whether by means of a Loan or a Letter of Credit), herein
or pursuant hereto shall survive the making of such representation and warranty
for a period of two years (provided that any claim or demand made by the
Administrative Agent or any Lender with respect to any such representation or
warranty prior to the end of such two-year period shall survive the expiration
of such period), and no Lender shall be deemed to have waived, by reason of
making any extension of credit hereunder (whether by means of a Loan or a Letter
of Credit), any Default which may arise by reason of such representation or
warranty proving to have been false or misleading, notwithstanding that such
Lender or the Administrative Agent may have had notice or knowledge or reason to
believe that such representation or warranty was false or misleading at the time
such extension of credit was made.
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. 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 nonexclusive 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 applicable 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.
12.11 Waiver of Jury Trial. EACH OF THE OBLIGORS, THE ADMINISTRATIVE
AGENT, THE LENDERS, THE ISSUING BANK AND THE SWINGLINE BANK HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE 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.
-65-
Exhibit 10.1
12.12 Complete Agreement. This Agreement, the Notes and the other Basic
Documents contain the entire and exclusive agreement of the parties hereto with
reference to the matters discussed herein or therein. This Agreement and the
other Basic Documents supersede all prior drafts and communications with respect
thereto.
12.13 Confidentiality. Each Lender and the Administrative Agent agrees
(on behalf of itself and each of its affiliates, directors, officers, employees
and representatives) to use such precautions as it uses to maintain the
confidentiality of its own confidential information, and in accordance with safe
and sound banking practices, any information supplied to it by the Company or
any of its Subsidiaries pursuant to this Agreement that is not publicly
available, 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 Lenders or the Administrative Agent,
(iii) to bank examiners, auditors or accountants, (iv) to the Administrative
Agent or any other Lender, (v) in connection with any litigation to which any
one or more of the Lenders or the Administrative Agent is a party, (vi) to a
subsidiary or affiliate of such Lender or (vii) 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 Lender and the Company a confidentiality agreement in a form
reasonably acceptable to the Company and such Lender.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first
above written.
XXXXXX & XXXXX, INC.
By____________________________
Title:
Address for Notices:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
With a copy to:
Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx
& Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-67-
Exhibit 10.1
SUBSIDIARY GUARANTORS
X. XXXXXX BOOKSELLER, INC.
By____________________________
Title:
XXXXXX & XXXXX BOOKSELLERS, INC.
By____________________________
Title:
XXXXXXXXXXXXXX.XXX INC.
By____________________________
Title:
MARBORO BOOKS CORP.
By___________________________
Title:
DOUBLEDAY BOOK SHOPS, INC.
By___________________________
Title:
CCI HOLDINGS, INC.
By___________________________
Title:
-68-
Exhibit 10.1
LENDERS
THE CHASE MANHATTAN BANK
Revolving Credit Commitment
$70,000,000
By____________________________
Title:
Lending Office for all Loans:
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices:
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-69-
Exhibit 10.1
LENDERS
CIBC INC.
Revolving Credit Commitment
$45,000,000
By____________________________
Title:
Lending Office for all Loans:
c/o Canadian Imperial Bank of Commerce
Two Paces West, Suite 1200
0000 Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Address for Notices:
c/o Canadian Imperial Bank of Commerce
Two Paces West, Suite 1200
0000 Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxx Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-70-
Exhibit 10.1
LENDERS
ING (U.S.) CAPITAL CORPORATION
Revolving Credit Commitment
$45,000,000
By___________________________
Title:
Lending Office for all Loans:
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Address for Notices:
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xx. Xxxx X. van der Laan
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-71-
Exhibit 10.1
LENDERS
THE BANK OF NOVA SCOTIA
Revolving Credit Commitment
$35,000,000
By___________________________
Title: Authorized Signatory
Lending Office for all Loans:
The Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices:
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-72-
Exhibit 10.1
LENDERS
FIRST UNION NATIONAL BANK
Revolving Credit Commitment
$35,000,000
By___________________________
Title: Vice President
Lending Office for all Loans:
000 Xxxxx Xxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, SVP
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Address for Notices:
000 Xxxxx Xxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-73-
Exhibit 10.1
LENDERS
THE INDUSTRIAL BANK OF JAPAN, LIMITED
Revolving Credit Commitment
$35,000,000
By___________________________
Title:
Lending Office for all Loans:
The Industrial Bank of Japan, Limited
New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Address for Notices:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Mr. J. Xxxxxxx Xxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-74-
Exhibit 10.1
LENDERS
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
Revolving Credit Commitment
$35,000,000
By___________________________
Title:
By___________________________
Title:
Lending Office for all Loans:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Services Dept.
Fax: (000) 000-0000
Phone: (000) 000-0000
Address for Notices:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-75-
Exhibit 10.1
LENDERS
SUMMIT BANK
Revoling Credit Commitment
$35,000,000 By___________________________
Title:
Lending Office for all Loans:
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, X.X. 00000
Attention: Xxxx Xxxxx
Fax: 000-000-0000
Phone: 000-000-0000
Address for Notices:
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, X.X. 00000
Attention: Xxxxxxx Swiss
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
-76-
Exhibit 10.1
LENDERS
BANK OF MONTREAL
Revolving Credit Commitment
$25,000,000
By___________________________
Title:
Lending Office for all Loans:
Bank of Montreal
000 Xxxxx XxXxxxx Xxxxxx
00xx Xxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
Address for Notices:
Bank of Montreal
000 Xxxxx XxXxxxx Xxxxxx
00xx Xxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-77-
Exhibit 10.1
LENDERS
THE BANK OF NEW YORK
Revolving Credit Commitment
$25,000,000
By___________________________
Title:
Lending Office for all Loans:
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices:
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Xx.
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-78-
Exhibit 10.1
LENDERS
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
Revolving Credit Commitment
$25,000,000
By___________________________
Title:
Lending Office for all Loans:
Bank of Tokyo-Mitsubishi Trust Company
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxx
Fax: (000) 000-0000
Phone: (000) 000-0000
Address for Notices:
Bank of Tokyo-Mitsubishi Trust Company
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-00-
Xxxxxxx 00.0
XXXXXXX
XXXXXXXXXX BANK, N.A.
Revolving Credit Commitment
$25,000,000
By___________________________
Title:
Lending Office for all Loans:
Corestates Bank, N.A.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Address for Notices:
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xx. Xxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-80-
Exhibit 10.1
LENDERS
CREDIT LYONNAIS NEW YORK BRANCH
Revolving Credit Commitment
$25,000,000
By___________________________
Title:
Lending Office for all Loans:
Credit Lyonnais New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-81-
Exhibit 10.1
LENDERS
DEUTSCHE BANK AG, NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH
Revolving Credit Commitment
$25,000,000
By___________________________
Title:
By___________________________
Title:
Lending Office for all Loans:
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Address for Notices:
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxx X. X'Xxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-82-
Exhibit 10.1
LENDERS
MELLON BANK, N.A.
Revolving Credit Commitment
$25,000,000
By___________________________
Title:
Lending Office for all Loans:
Mellon Bank, N.A.
Loan Administration
Room 0000 Xxxxx Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Address for Notices:
Xxx Xxxxxx Xxxx Xxxxxx
Xxxx 000-0000
Xxxxxxxxxx, XX 00000-0000
Attention: Xx. Xxxxxxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-83-
Exhibit 10.1
LENDERS
SAKURA BANK LTD.
Revolving Credit Commitment
$25,000,000 By___________________________
Title: Vice President
Lending Office for all Loans:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
Address for Notices:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-84-
Exhibit 10.1
LENDERS
THE SUMITOMO TRUST & BANKING CO., LTD
NEW YORK BRANCH
Revolving Credit Commitment
$25,000,000 By___________________________
Title:
Lending Office for all Loans:
The Sumitomo Trust & Banking Company., Ltd.
New York Branch
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Address for Notices:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Hiro Mizuno
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-85-
Exibit 10.1
LENDERS
THE TOKAI BANK, LIMITED
NEW YORK BRANCH
Revolving Credit Commitment
$25,000,000
By___________________________
Title:
Lending Office for all Loans:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Haruyo Niki
Fax: 000-000-0000
Phone: 000-000-0000
Address for Notices:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
-86-
Exhibit 10.1
LENDERS
XXXXX FARGO BANK N.A.
Revolving Credit Commitment
$25,000,000
By___________________________
Title:
By___________________________
Title:
Lending Office for all Loans:
000 Xxxxxxxxxx Xxxxxx 0xx Xx.
Xxx Xxxxxxxxx, XX 00000
Address for Notices:
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-87-
Exhibit 10.1
LENDERS
SUNTRUST BANK, ATLANTA
Revolving Credit Commitment
$20,000,000
By___________________________
Title:
By___________________________
Title:
Lending Office for all Loans:
SunTrust Bank, Atlanta
00 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
Address for Notices:
SunTrust Bank, Atlanta
00 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
-00-
Xxxxxxx 00.0
XXXXXXX
XXX-XXXX BANK, N.V.
New York Branch
Revolving Credit Commitment
$15,000,000
By___________________________
Title:
By___________________________
Title:
Lending Office for all Loans:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-89-
Exhibit 10.1
LENDERS
DG BANK Deutsche Genossenschaftsbank
Revolving Credit Commitment
$15,000,000
By___________________________
Title:
By___________________________
Title:
Lending Office for all Loans:
Cayman Islands
Attention: Xxxxx XxXxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
Address for Notices:
000 Xxxxx Xxxxxx
XX, XX 00000
Attention: Xxxxxx Xxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-90-
Exhibit 10.1
LENDERS
FIRST HAWAIIAN BANK
Revolving Credit Commitment
$15,000,000
By___________________________
Title:
Lending Office for all Loans:
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
Address for Notices:
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Xxxxx Xxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-91-
Exhibit 10.1
LENDERS
FIRST NATIONAL BANK OF MARYLAND
Revolving Credit Commitment
$15,000,000
By___________________________
Title:
Lending Office for all Loans:
00 X.Xxxxxxx Xx.
Xxxxxxxxx, Xx. 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax: 000-000-0000
Phone: 000-000-0000
Address for Notices:
00 X.Xxxxxxx Xx.
Xxxxxxxxx, Xx. 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
-92-
Exhibit 10.1
LENDERS
FLEET NATIONAL BANK
Revolving Credit Commitment
$15,000,000
By___________________________
Title:
Lending Office for all Loans:
Fleet Bank
MA0F0320
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
Address for Notices:
Xxxxx Xxxx
XX0X0000
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No: (000) 000-0000
-93-
Exhibit 10.1
LENDERS
THE FUJI BANK, LIMITED
NEW YORK BRANCH
Revolving Credit Commitment
$15,000,000
By___________________________
Title:
Lending Office for all Loans:
The Fuji Bank, Limited
New York Branch
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices:
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-94-
Exhibit 10.1
LENDERS
HIBERNIA NATIONAL BANK
Revolving Credit Commitment
$15,000,000 By_______________
Title:
Lending Office for all Loans:
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Address for Notices:
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Ms. Xxxxxxxxx Xxxxxxx
Banking Officer
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-95-
Exhibit 10.1
LENDERS
IBJ XXXXXXXX BANK & TRUST COMPANY
Revolving Credit Commitment
$15,000,000
By___________________________
Title:
Lending Office for all Loans:
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices:
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-96-
Exhibit 10.1
LENDERS
XXXXXX BANK LTD
NEW YORK BRANCH
Revolving Credit Commitment
$15,000,000 By___________________________
Title:
By___________________________
Title:
Lending Office for all Loans:
Xxxxxx Bank Ltd.
New York Branch
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Address for Notices:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-97-
Exhibit 10.1
LENDERS
THE MITSUBISHI TRUST AND
BANKING CORPORATION
Revolving Credit Commitment
$15,000,000
By___________________________
Title:
Lending Office for all Loans:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-98-
Exhibit 10.1
LENDERS
SANWA BANK LTD
Revolving Credit Commitment
$15,000,000
By___________________________
Title:
Lending Office for all Loans:
The Sanwa Bank Ltd, New York Branch
Attention: Xxxx Xxxxxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
Address for Notices:
The Sanwa Bank, Ltd., New York Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: R. Hara
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-99-
Exhibit 10.1
LENDERS
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
Revolving Credit Commitment
$15,000,000
By___________________________
Title:
Lending Office for all Loans:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-100-
Exhibit 10.1
LENDERS
THE TOYO TRUST & BANKING CO., LTD.
Revolving Credit Commitment
$15,000,000
By___________________________
Title:
Lending Office for all Loans:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx St. Mauro, AVP
Fax: (000) 000-0000
Phone: (000) 000-0000
Address for Notices:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx St. Xxxxx, AVP
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-101-
Exhibit 10.1
LENDERS
WACHOVIA BANK, N.A.
Revolving Credit Commitment
$15,000,000
By___________________________
Title:
Lending Office for all Loans:
Wachovia Bank, N.A.
Attention: Xxxx X. Shawl
Fax: (000) 000-0000
Phone: (000) 000-0000
Address for Notices:
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-102-
Exhibit 10.1
LENDERS
THE YASUDA TRUST & BANKING COMPANY,
LIMITED
Revolving Credit Commitment
$10,000,000
By___________________________
Title:
Lending Office for all Loans:
Xxxxx 000
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: X. Xxxxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
Address for Notices:
Xxxxx 000
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: X. Xxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-103-
Exhibit 10.1
SWINGLINE BANK
Swingline Commitment THE CHASE MANHATTAN BANK
$50,000,000
By____________________________
Title:
Lending Office for all Loans:
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices:
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-104-
Exhibit 10.1
ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK ,
as Administrative Agent
By____________________________
Title:
Lending Office for all Loans:
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices:
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-105-
SCHEDULE 1
MATERIAL AGREEMENTS AND LIENS
-----------------------------
Part A -- Material Agreements
Aggregate
Principal
Balance or Amount of
Face Amount Unused
Credit Institution Type of Agreement Outstanding Commitment
------------------ ----------------- ----------- ----------
United States Trust Amended and Restated $190,000,000 0
Company of New York, Indenture of Xxxxxx &
as Trustee Noble, Inc., dated as
of 7/23/93, for 11-7/8%
Senior Subordinated
Notes
Part B - Liens
-----
Corporation Description Secured Party
----------- ----------- -------------
Xxxxxx & Xxxxx, Inc. Security interest in one Xerox Corporation
-------------------- Xerox 1090 together with 000 Xxxx Xxxxxx
any and all additions, X.X. Xxx 0000, XX 0-0
substitutions, accessories Xxxxxxxx, XX 00000
or other or different
equipment added to or
replacing part of the
specified equipment and
all proceeds.
Security interest in all Hitachi Data Systems Corp.
right, title and interest 750 Central Expressway
in, to and under (1) Xxxxx Xxxxx, XX 00000
Computer Equipment Purchase
Agreement C0149/L, dated
1/25/95, between debtor
and secured party; (2) all
payments due and to become
due under such Agreement;
and (3) all computer and
peripheral equipment
subject to such Agreement.
Xxxxxx & Xxxxx
Booksellers, Inc. Security interest in all Key Bank of Vermont
----------------- contracts, permits, plans 000 Xxxx Xxxxxx
and specifications and Xxxxxxxxxx, XX 00000
other instruments and
agreements relating to the
construction of a bookstore
located at 000 Xxxxxx Xxxxxx
Xxxxx Xxxxxxxxxx, Xxxxxxx.
-2-
SCHEDULE II
SUBSIDIARIES AND INVESTMENTS
----------------------------
Part A - Subsidiaries
------------
Registered Owner
Jurisdiction of (and Percentage of
Subsidiary Organization Ownership) Shares Outstanding
---------- ------------ ------------------ ------------------
X. Xxxxxx Bookseller, Inc. Minnesota Xxxxxx & Xxxxx, Inc. 360 shares of common
(100%) stock, par value $100.00
per share
Xxxxxx & Noble Booksellers, Inc. Delaware Xxxxxx & Xxxxx, Inc. 100 shares of common
(100%) stock, par value $1.00
per share
Marboro Books Corp. New York Xxxxxx & Noble, Inc. 10 shares of common
(100%) stock, no par value
Doubleday Book Shops, Inc. Delaware X. Xxxxxx 1,000 shares of common
Bookseller, Inc. stock, par value $1.00
(100%) per share
CCI Holdings, Inc. Texas Xxxxxx & Noble, Inc. 3,000 shares of common
(100%) stock, par value $1.00
Xxxxxx and Xxxxx.xxx Inc. Delaware Xxxxxx & Noble, Inc. 100 shares of common
(100%) stock, par value $1.00
Calmark Limited (Unrestricted United Xxxxxx & Xxxxx, Inc. 600,000 shares of
Subsidiary) Kingdom (80%) common stock, par
value (pounds)1.00
Part B - Investments
-----------
1. Note payable to Xxxxxx & Noble, Inc., dated March 13, 1996, issued by
Calendar Club Inc. (n/k/a CCI Holdings, Inc.) in the principal amount of
$3,000,000 due February 13, 2005, which note has been assumed by and is an
obligation of Calendar Club L.L.C., a Delaware limited liability company
(the "LLC").
2. Note payable to Xxxxxx & Xxxxx, Inc., dated March 13, 1996, issued by the
LLC in the principal amount of $1,500,000, due February 13, 2005.
3. CCI Holdings, Inc.'s 50% membership interest in the LLC.
4. Limited partnership interest in Parkway Plaza Associates, a New York
limited partnership.
5. 20% interest in Chapters Inc. an Ontario corporation.
PROMISSORY NOTE
$70,000,000 November 18, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, XXXXXX & NOBLE, INC., a Delaware
corporation (the "Company"), hereby promises to pay to THE CHASE
MANHATTAN BANK (the "Lender"), for account of its respective Applicable
Lending Offices provided for by the Amended and Restated Credit Agreement
referred to below, at the principal office of The Chase Manhattan Bank at
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, the principal sum of
SEVENTY MILLION DOLLARS ($70,000,000) (or such lesser amount as shall
equal the aggregate unpaid principal amount of the Revolving Credit Loans
made by the Lender to the Company under the Amended and Restated 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 Amended and Restated Credit Agreement, and to pay
interest on the unpaid principal amount of each such Revolving Credit
Loan, at such office, in like money and funds, for the period commencing
on the date of such Revolving Credit Loan until such Revolving Credit
Loan shall be paid in full, at the rates per annum and on the dates
provided in the Amended and Restated Credit Agreement.
The date, amount, Type, interest rate and duration of
Interest Period (if applicable) of each Revolving Credit Loan made by the
Lender to the Company, and each payment made on account of the principal
thereof, shall be recorded by the Lender on its books and, prior to any
transfer of this Note, endorsed by the Lender on the schedule attached
hereto or any continuation thereof, provided that the failure of the
Lender to make any such recordation or endorsement shall not affect the
obligations of the Company to make a payment when due of any amount owing
under the Amended and Restated Credit Agreement in respect of the
Revolving Credit Loans made by the Lender.
This Note is one of the Revolving Credit Notes referred
to in the Amended and Restated Credit Agreement dated as of November 18,
1997 (as modified and supplemented and in effect from time to time, the
"Amended and Restated Credit Agreement") between the Company, the
Subsidiaries of the Company identified on the signature pages thereof
under the caption "SUBSIDIARY GUARANTORS", the lenders named therein and
The Chase Manhattan Bank, as Administrative Agent, and evidences
Revolving Credit Loans made by the Lender thereunder. Terms used but not
defined in this Note have the respective meanings assigned to them in the
Amended and Restated Credit Agreement.
The Amended and Restated Credit Agreement provides for
the acceleration of the maturity of this Note upon the occurrence of
certain events and for prepayments of Revolving Credit Loans upon the
terms and conditions specified therein.
Except as permitted by Sections 12.06(b) and 12.06(d)
of the Amended and Restated Credit Agreement, this Note may not be
assigned by the Lender to any other Person.
This Note shall be governed by, and construed in
accordance with, the law of the State of New York.
XXXXXX & XXXXX, INC.
By____________________________
Title:
SCHEDULE OF LOANS
This Note evidences Revolving Credit Loans made,
Continued or Converted under the within-described Amended and Restated
Credit Agreement to the Company, on the dates, in the principal amounts,
of the Types, bearing interest at the rates and having Interest Periods
(if applicable) of the durations set forth below, subject to the
payments, Continuations, Conversions and prepayments of principal set
forth below:
Amount
Paid,
Date Made, Principal Duration of Prepaid, Unpaid
Continued or Amount Type of Interest Interest Continued Princiapal Notation
Converted of Loan Loan Rate Period or Converted Amount Made by
---------------- ------------- ------------- -------------- ------------- ------------- ------------- --------------
EXHIBIT A-2
[Form of Swingline Note]
PROMISSORY NOTE
$_______________ November __, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, XXXXXX & NOBLE, INC., a Delaware
corporation (the "Company"), hereby promises to pay to __________________
(the "Swingline Bank"), for account of its respective Applicable Lending
Offices provided for by the Amended and Restated Credit Agreement
referred to below, at the principal office of The Chase Manhattan Bank at
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 the principal sum of
_______________ Dollars (or such lesser amount as shall equal the
aggregate unpaid principal amount of the Swingline Loans made by the
Swingline Bank to the Company under the Amended and Restated 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 Amended and Restated Credit Agreement, and to pay
interest on the unpaid principal amount of each such Swingline Loan, at
such office, in like money and funds, for the period commencing on the
date of such Swingline Loan until such Swingline Loan shall be paid in
full, at the rates per annum and on the dates provided in the Amended and
Restated Credit Agreement.
The date, amount, interest rate and maturity date of
each Swingline Loan made by the Swingline Bank to the Company, and each
payment made on account of the principal thereof, shall be recorded by
the Swingline Bank on its books and, prior to any transfer of this Note,
endorsed by the Swingline Bank on the schedule attached hereto or any
continuation thereof, provided that the failure of the Swingline Bank to
make any such recordation or endorsement shall not affect the obligations
of the Company to make a payment when due of any amount owing under the
Amended and Restated Credit Agreement in respect of the Swingline Loans
made by the Swingline Bank.
This Note is the Swingline Note referred to in the
Amended and Restated Credit Agreement dated as of November __, 1997 (as
modified and supplemented and in effect from time to time, the "Amended
and Restated Credit Agreement") between the Company, the Subsidiaries of
the Company identified on the signature pages thereof under the caption
"SUBSIDIARY GUARANTORS", the lenders named therein and The Chase
Manhattan Bank, as Administrative Agent, and evidences Swingline Loans
made by the Swingline Bank thereunder. Terms used but not defined in this
Note have the respective meanings assigned to them in the Amended and
Restated Credit Agreement.
The Amended and Restated Credit Agreement provides for
the acceleration of the maturity of this Note upon the occurrence of
certain events and for prepayments of Swingline Loans upon the terms and
conditions specified therein.
Except as permitted by Sections 12.06(d) and 12.06(g)
of the Amended and Restated Credit Agreement, this Note may not be
assigned by the Swingline Bank to any other Person.
This Note shall be governed by, and construed in
accordance with, the law of the State of New York.
XXXXXX & XXXXX, INC.
By____________________________
Title:
SCHEDULE OF LOANS
This Note evidences Swingline Loans made under the
within-described Amended and Restated Credit Agreement to the Company, on
the dates, in the principal amounts, bearing interest at the rates and
maturing on the dates set forth below, subject to the payments of
principal set forth below:
Principal Unpaid
Date Amount Interest Maturity Amount Principal Notation
Made of Loan Rate Date Paid Amount Made by
------ ---------- -------- -------- ------- --------- ---------
EXHIBIT C
[Form of Opinion of Counsel to the Obligors]
November __, 1997
To the Lenders party to the
Amended and Restated Credit
Agreement referred to
below and The Chase Manhattan Bank,
as Administrative Agent
Ladies and Gentlemen:
We have acted as counsel to Xxxxxx & Xxxxx, Inc. (the
"Company") and its subsidiaries in connection with the Amended and
Restated Credit Agreement (the "Credit Agreement") dated as of November
__, 1997, among the Company, the Subsidiaries of the Company identified
on the signature pages thereof under the caption "SUBSIDIARY GUARANTORS",
the lenders named therein and The Chase Manhattan Bank, as
Administrative Agent, providing for extensions of credit to be made by
said lenders to the Company in an aggregate amount not exceeding
$850,000,000. Terms defined in the Credit Agreement are used herein as
defined therein.
In rendering the opinions expressed below, we have examined (a)
the Basic Documents and (b) the originals or conformed copies of such
corporate records, agreements and instruments of the obligors,
certificates of public officials and of officers of the Obligors, and
such other documents and records, and such matters of law, as we have
deemed appropriate as a basis for the opinions hereinafter expressed. In
our examination, we have assumed the genuineness of all signatures, the
authenticity of documents submitted to us as originals and the conformity
with authentic original documents of all documents submitted to us as
copies. When relevant facts were not independently established, we have
relied upon statements of governmental officials and upon representations
made in or pursuant to the Basic Documents and certificates and
statements of appropriate representatives of the obligors.
In rendering the opinions expressed below, we have assumed that,
other than with respect to the Obligors, all of the documents referred to
in this opinion have been duly authorized by, have been duly executed and
delivered by, and constitute legal, valid, binding and enforceable
obligations of, all of the parties to such documents, that all
signatories to such documents have been duly authorized and that all such
parties are duly organized and validly existing and have the power and
authority (corporate or other) to execute, deliver and perform such
documents.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that:
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware and
has the necessary corporate power to make and perform the Credit
Agreement and the Notes and the other Basic Documents to which it is a
party and to borrow under the Credit Agreement. Each Subsidiary
Guarantor is a corporation duly incorporated, validly existing and in
good standing under the laws of the respective state indicated opposite
its name in Schedule II to the Credit Agreement. The Company is duly
qualified to transact business in the State of New York and, to our
knowledge, the Subsidiary Guarantors are duly qualified to transact
business in all such jurisdictions where failure so to qualify would
reasonably be expected to have a material adverse effect on the
financial condition or operations of the Company and its Consolidated
Subsidiaries taken as a whole. Each Subsidiary Guarantor has the
necessary corporate power to make and perform the Credit Agreement
and the other Basic Documents to which it is a party.
2. The making and performance by each Obligor of the Credit
Agreement and the other Basic Documents to which it is a party including,
in the case of the Company, the Notes and the borrowings by the Company
under the Credit Agreement have been duly authorized by all necessary
corporate action, and do not and will not violate any provision of any
applicable law or regulation or any provision of the charter or by-laws
of any Obligor or result in the breach of, or constitute a default or
require any consent under, or (except for the Liens created pursuant to
the Security Documents) result in the creation of any Lien upon any
material Property of the Company or any Subsidiary Guarantor pursuant to,
any indenture or other material agreement or instrument known to us to
which the Company or any Subsidiary Guarantor is a party or by which the
Company or any Subsidiary Guarantor or its Properties may be bound.
3. The Credit Agreement, the Security Agreement, and the
Security Agreement Amendment constitute, and the Notes when executed and
delivered for value will constitute, legal, valid and binding obligations
of the respective Obligor enforceable in accordance with their respective
terms, except as such enforceability may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or other similar laws of general
applicability affecting the enforcement of creditors' rights and (b) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law), and
except that no opinion is expressed as to Section 4.07(c) or Section 11
(other than Section 11.09) of the Credit Agreement.
We express no opinion as to the effect, or applicability, upon
the obligations of any Subsidiary Guarantor under the Credit Agreement,
the Security Agreement, and the Security Agreement Amendment of any
Federal or state law relating to fraudulent conveyances or transfers. In
addition, we express no opinion as to (i) whether a Federal or state
court outside of the State of New York would give effect to the choice of
New York law provided for in the Credit Agreement and the Notes and in
the other Basic Documents, (ii) the second sentence of Section 12.10 of
the Credit Agreement, insofar as such sentence relates to the subject
matter jurisdiction of the United States District Court for the Southern
District of New York to adjudicate any controversy related to the Credit
Agreement or the Notes or (iii) the waiver of inconvenient forum set
forth in Section 12.10 of the Credit Agreement with respect to
proceedings in the United States District Court for the Southern District
of New York. We also wish to point out that the obligations of the
Obligors under the Security Agreement and the Security Agreement
Amendment may be subject to possible limitations upon the exercise of
remedial or procedural provisions contained in the Security Agreement and
the Security Agreement Amendment, provided that such limitations do not,
in our opinion, make the remedies and procedures which will be afforded
to the Administrative Agent and the Lenders inadequate for the practical
realization of the substantive benefits purported to be provided to the
Administrative Agent and the Lenders by the Security Agreement and the
Security Agreement Amendment. Finally, we wish to point out that
provisions of the Basic Documents which permit the Administrative Agent
or any Lender to take action or make determinations, or to benefit from
indemnities and similar undertakings of the Obligors, may be subject to a
requirement that such action be taken or such determinations be made, and
that any action or inaction by the Administrative Agent or any Lender
which may give rise to a request for payment under such an undertaking be
taken or not taken, on a reasonable basis and in good faith.
4. There are no legal or arbitral proceedings, and no
proceedings by or before any governmental or regulatory authority or
agency, pending or (to our knowledge) threatened against the Company or
any Subsidiary Guarantor that would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
5. No authorizations, consents, approvals, licenses, filings or
registrations with any governmental or regulatory authority or agency are
required in connection with the execution, delivery or performance by any
Obligor of the Basic Documents to which it is a party, except the filings
and recordings of Liens to be created pursuant to the Security Documents.
6. The Security Agreement (as amended by the Security Agreement
Amendment) is effective to create, in favor of the Administrative Agent
for the benefit of the Lenders thereunder, a valid security interest (to
the
extent that Article 9 of the Uniform Commercial Code is applicable
thereto) in the right, title and interest of the Obligors in the
Collateral (as defined in the Security Agreement), as collateral security
for the payment of the Secured Obligations (as so defined), except that
the security interest in Collateral in which any obligor acquires rights
after the commencement of a case against it under the Bankruptcy Code
will be limited by Section 552 of the Bankruptcy Code. By virtue of the
filings described in Annex 1 attached hereto, all such security interests
which can be perfected by a Uniform Commercial Code filing in the United
States of America will have been, upon such filings being completed, so
perfected. We express no opinion as to the right, title or interest of
any obligor in any of the Collateral.
7. The issued and outstanding shares of capital stock of each
Issuer under and as defined in the Security Agreement (as amended by the
Security Agreement Amendment) is correctly described in Annex 1 thereto,
and represented by the certificates therein identified. The security
interest in the Pledged Stock under and as defined in the Security
Agreement (as amended by the Security Agreement Amendment) represented by
each such certificate constitutes a valid, perfected security interest so
long as the Administrative Agent holds such certificates.
In rendering the foregoing opinions, we have assumed, without
independent investigation, that (i) the Company has not issued the Notes
and no Subsidiary Guarantor has guaranteed the Secured Obligations with
actual intent to hinder, delay or defraud their respective present or
future creditors, (ii) upon issuance of the Notes by the Company and the
guarantee by the Subsidiary Guarantors, neither the Company nor any
Subsidiary Guarantors was insolvent or engaged, or about to engage, in a
business or transaction for which the property remaining with the Company
or any Subsidiary Guarantors, as the case may be, was unreasonably small
capital, or intended to incur, or believed that it was incurring, debts
beyond its ability to pay as they become due, and (iii) each of the
Company and each Subsidiary Guarantor will satisfy in full any final
judgment against it in any action for money damages that either results
from an action pending against it on the date the Notes and the guarantee
were issued or docketed against it on such date.
The foregoing opinions are limited to matters involving the
Federal laws of the United States, the laws of the State of New York and,
to the extent necessary, the General Corporation Law of the State of
Delaware, and we do not express any opinion as to the laws of any other
jurisdiction.
This opinion letter is provided to you by us pursuant to Section
7.01(c) of the Credit Agreement and may not be relied upon by any other
person or for any purpose other than in connection with the transactions
contemplated by the Basic Documents without our prior written consent in
each instance.
Very truly yours,
ANNEX 1
Jurisdictions of filings of
U.C.C. Financing Statements
Obligor Jurisdiction of Filings
------- -----------------------
1. Xxxxxx & Xxxxx, Inc. 1. (a) Secretary of State of the State of New York
(b) Nassau County Clerk
(c) New York County Clerk
2. X. Xxxxxx Bookseller, Inc. 2. (a) Secretary of State of the State of New York
(b) Nassau County Clerk
(c) New York County Clerk
(d) Secretary of State of the State of New Jersey
(e) Middlesex County Clerk
3. Xxxxxx & Xxxxx Booksellers, Inc. 3. (a) Secretary of State of the State of New York
(b) Nassau County Clerk
(c) New York County Clerk
4. Marboro Books Corp. 4. (a) Secretary of State of the State of New York
(b) Nassau County Clerk
(c) New York County Clerk
(d) Secretary of State of the State of New Jersey
(e) Bergen County Clerk
5. Doubleday Book Shops, Inc. 5. (a) Secretary of State of the State of New York
(b) Nassau County Clerk
(c) New York County Clerk
6. CCI Holdings, Inc. 6. (a) Secretary of State of the State of New York
(b) Nassau County Clerk
(c) New York County Clerk
(d) Secretary of State of the State of Texas
(e) Xxxxxx County Clerk
7. Xxxxxx and Xxxxx Online, Inc. 7. (a) Secretary of State of the State of New York
(b) Nassau County Clerk
(c) New York County Clerk
(d) Secretary of State of the State of New Jersey
(e) Bergen County Clerk
EXHIBIT D
[Form of Opinion of Special New York Counsel
to Chase, CIBC and ING]
November __, 1997
To: The Lenders party to the
Credit Agreement referred to
below and The Chase Manhattan Bank
as Administrative Agent
Re: Xxxxxx & Xxxxx, Inc.
Ladies and Gentlemen:
We have acted as special New York counsel to The Chase Manhattan
Bank, CIBC Inc. and ING (U.S.) Capital Corporation in connection with
the Amended and Restated Credit Agreement dated as of November __, 1997
(the "Amended and Restated Credit Agreement") between Xxxxxx & Xxxxx,
Inc. (the "Company"), the Subsidiaries of the Company identified on the
signature pages thereof under the caption "SUBSIDIARY GUARANTORS" (the
"Subsidiary Guarantors"), the Lenders identified in the Amended and
Restated Credit Agreement (the "Lenders") and The Chase Manhattan Bank,
as Administrative Agent. All capitalized terms defined in the Amended and
Restated Credit Agreement are used with the same meanings, unless
otherwise defined, in this opinion letter.
In rendering the opinions expressed below, we have examined (a)
the Amended and Restated Credit Agreement, the Note, the Security
Agreement and the Security Agreement Amendment (collectively, the "Loan
Documents") and (b) such corporate records of the Obligors and such other
documents as we have deemed necessary as a basis for the opinions
expressed below. In our examination, we have assumed the genuineness of
all signatures, the authenticity of documents submitted to us as
originals and the conformity with authentic original documents of all
documents submitted to us as copies. When relevant facts were not
independently established, we have relied upon statements of governmental
officials and upon representations made in or pursuant to the Loan
Documents and certificates of appropriate representatives of the
Obligors.
In rendering the opinions expressed below, we have assumed that
all of the documents referred to in this opinion have been duly
authorized by, have been or (in the case of the Notes) will be duly
executed and delivered by, and (except, to the extent set forth below, as
to the Obligors) constitute legal, valid, binding and enforceable
obligations of, all of the parties to such documents, that all
signatories to such documents have been duly authorized and that all such
parties are duly organized and validly existing and have the power and
authority (corporate or other) to execute, deliver and perform such
documents.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that:
1. The Amended and Restated Credit Agreement constitutes, and
the Notes when duly executed and delivered for value will constitute, the
legal, valid and binding obligations of the Company, enforceable against
it in accordance with their respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally and except as
the enforceability of such Loan Documents is subject to the application
of general principles of equity (regardless of
whether considered in a proceeding in equity or at law), including
without limitation (a) the possible unavailability of specific
performance, injunctive relief or any other equitable remedy and (b)
concepts of materiality, reasonableness, good faith and fair dealing.
2. The Amended and Restated Credit Agreement constitutes the
legal, valid and binding obligation of each Subsidiary Guarantor,
enforceable against it in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights of creditors generally
and except as the enforceability of the Amended and Restated Credit
Agreement is subject to the application of general principles of equity
(regardless of whether considered in a proceeding in equity or at law),
including without limitation (a) the possible unavailability of specific
performance, injunctive relief or any other equitable remedy and (b)
concepts of materiality, reasonableness, good faith and fair dealing.
3. The Security Agreement and the Security Agreement Amendment
constitute the legal, valid and binding obligation of each Obligor,
enforceable against it in accordance with its terms, except (a) as may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights of creditors generally,
(b) as the enforceability of the Security Agreement and the Security
Agreement Amendment is subject to the application of general principles
of equity (regardless of whether considered in a proceeding in equity or
at law), including without limitation (1) the possible unavailability of
specific performance, injunctive relief or any other equitable remedy and
(2) concepts of materiality, reasonableness, good faith and fair dealing
and (c) that the enforceability of the obligations of the Obligors under
the Security Agreement and the Security Agreement Amendment may be
subject to possible limitations upon the exercise of remedial or
procedural provisions contained in the Security Agreement (as amended by
the Security Agreement Amendment), provided that (subject to clauses (a)
and (b) above) such limitations do not, in our opinion, make the remedies
and procedures afforded to the Administrative Agent and the Lenders
inadequate for the practical realization of the substantive benefits
purported to be provided to the Administrative Agent and the Lenders by
the Security Agreement and the Security Agreement Amendment.
The foregoing opinions are also subject to the following
comments and qualifications:
(a) The enforceability of Section 12.03 of the Amended and
Restated Credit Agreement may be limited by laws rendering unenforceable
indemnification contrary to Federal or state securities laws and the
public policy underlying such laws.
(b) The enforceability of provisions in the Loan Documents to
the effect that terms may not be waived or modified except in writing may
be limited under certain circumstances.
(c) We express no opinion as to (i) the effect of the laws of
any jurisdiction in which any Lender is located (other than the State of
New York) that limits the interest, fees or other charges it may impose,
(ii) Section 4.07(c) of the Amended and Restated Credit Agreement or the
last sentence of Section 2.02(b), (iii) the second sentence of Section
12.10 of the Amended and Restated Credit Agreement insofar as such
sentence relates to the subject matter jurisdiction of the United States
District Court for the Southern District of New York to adjudicate any
controversy related to the Loan Documents and (iv) the waiver of
inconvenient forum set forth in Section 12.10 of the Amended and Restated
Credit Agreement with respect to proceedings in the United States
District Court for the Southern District of New York.
(d) We express no opinion as to the applicability to the
obligations of the Subsidiary Guarantors (or the enforceability of such
obligations) of Section 548 of the Bankruptcy Code or Article 10 of the
New York Debtor and Creditor Law, or any other provision of law, relating
to fraudulent conveyances, transfers or obligations. Nevertheless, we
have assumed, without independent verification, that you have made or
caused to be made such valuations and projections as you have deemed
necessary to demonstrate and satisfy yourselves that, after giving effect
to the respective guarantee, each Subsidiary Guarantor will not (i) be
insolvent, (ii) have liabilities (including contingent, unmatured and
subordinated liabilities) that are beyond its ability to pay as such
liabilities mature or (iii) have an unreasonably small capital with which
to conduct its business.
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The foregoing opinions are limited to matters involving the
federal laws of the United States of America and the laws of the State of
New York, and we do not express any opinion as to the laws of any other
jurisdiction.
This opinion letter is provided to you by us pursuant to Section
7.01(d) of the Amended and Restated Credit Agreement and may not be
relied upon by any other person or for any purpose other than in
connection with the transactions contemplated by the Loan Documents
without our prior written consent in each instance.
Very truly yours,
DKD/XXX
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EXHIBIT E
[Form of Compliance Certificate]
QUARTERLY REPORT
Re: Amended and Restated Credit Agreement dated as of
November __, 1997 (as modified and supplemented and in
effect from time to time, the "Amended and Restated
Credit Agreement") between Xxxxxx & Noble, Inc., the
Subsidiary Guarantors party thereto, certain lenders
and The Chase Manhattan Bank , as Administrative Agent
for said lenders
This Certificate is delivered pursuant to paragraph
(b)(ii) of Section 9.01 of the above-referenced Amended and Restated
Credit Agreement and has been prepared in accordance with the terms and
provisions of said Amended and Restated Credit Agreement. Terms used
herein and defined in the Amended and Restated Credit Agreement shall
have their respective defined meanings when used herein. Section
references used in Annex A hereto refer to sections of the Amended and
Restated Credit Agreement. Entries on Annex A hereto shall relate to the
fiscal periods referred to in the Amended and Restated Credit Agreement
for determination thereof and represent descriptive references only to
the corresponding components set forth in the relevant sections of the
Amended and Restated Credit Agreement (and the definitions therein
ancillary thereto). This Certificate relates to the fiscal period of the
Company ending __________________.
The Company hereby certifies that the information
contained on Annex A hereto is true and correct in all material respects
and that no Default has occurred and is continuing.
XXXXXX & XXXXX, INC.
By_________________________
Title:
Date: _________________
Annex A
to QUARTERLY
REPORT
QUARTERLY REPORT
For the period ending ____________
Section 9.07(h). Purchase Money Debt.
(a) Outstanding amount of purchase
money debt at period-end date: __________
(b) maximum permitted amount: $40,000,000
Section 9.07(i) Unsecured Debt.
(a) Outstanding amount of additional
unsecured debt at period-end date: __________
(b) maximum permitted amount: $100,000,000
Section 9.08(j) Additional Equity Investments.
(a) Equity Investments in
Unrestricted Subsidiaries
made fiscal year-to-date: __________
(b) maximum permitted amount: __________
Section 9.10(a). Fixed Charge Ratio.
(a) EBITDA for the period of four consecutive fiscal
quarters ending on or most recently ended prior to
period-end date:
Earnings before Income Taxes __________
Consolidated Company
Adjustments, primarily
investments __________
Gross Interest Expense __________
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Net Interest Expense __________
Interest Income __________
Deferred Fees __________
Other non cash charges __________
Proceeds from Exercise
of Employee Stock Options __________
Depreciation and Amortization __________
Deferred Fee Amortization __________
EBITDA __________
(b) Debt Service for such period:
Interest Expense __________
Capital Expenditures __________
Investments __________
Debt Service __________
(c) aggregate amount (without duplication)
of Investments in Affiliates for such
period that either (x) consist of equity
interests or (y) constitute acquisitions
of the capital stock or assets of
other companies: __________
(d) Equity Financed Investments and
Capital Expenditures (up to $25,000,000) __________
(e) sum of (b) plus (c) minus (d): __________
(f) Fixed Charge Ratio equals (a)
divided by (d): __________
(g) minimum permitted ratio: __________
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Section 9.10(b). Interest Coverage Ratio.
(a) EBITDAR for the period of four
consecutive fiscal quarters ending
on or most recently ended prior to
period-end date:
EBITDA ___________
Rents ___________
EBITDAR ___________
(b) Interest Expense for
such period: ___________
(c) Rental Payments for such period
(to the extent not included in
Interest Expense) for such period ____________
(d) sum of (b) plus (c): ____________
(e) Interest Coverage Ratio
equals (a) divided by (d): ____________
(f) minimum permitted ratio: ____________
Section 9.10(c). Leverage.
(a) Funded Debt:
Subordinated Debentures ___________
Senior Facilities ___________
LOC's ___________
Other ___________
Funded Debt ___________
(b) EBITDA for the period of four
consecutive fiscal quarters
ending on or most recently
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ended prior to period-end date: __________
(c) Leverage Ratio equals
(a) divided by (b): __________
(d) maximum permitted ratio: __________
Section 9.11(a). Capital Expenditures.
(a) Capital Expenditures made to
date in this Fiscal Year: __________
(b) maximum permitted amount: __________
Section 9.11(b). Specified Capital Expenditures.
(a) Expenditures with respect
to Projects not yet flipped: __________
(b) maximum permitted amount: $50,000,000
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