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EXHIBIT 4.1
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of November 17, 1999
HEADING
SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 17,
1999, among PAYLESS CASHWAYS, INC., a Delaware corporation (the "Borrower"),
each of the financial institutions from time to time party hereto as lenders
(together with their successors and assigns, the "Lenders"), CANADIAN IMPERIAL
BANK OF COMMERCE (acting through one or more of its agencies, branches, or
affiliates, "CIBC"), as coordinating and collateral agent (in such capacity, the
"Agent") for the Lenders and the other Secured Parties (as hereinafter defined).
INTRODUCTORY STATEMENT
On July 21, 1997, Payless Cashways, Inc., an Iowa corporation, as
debtor and debtor-in-possession (the "Debtor"), filed a voluntary petition with
the Bankruptcy Court. On September 5, 1997, the Debtor filed its First Amended
Plan of Reorganization with the Bankruptcy Court, which Plan of Reorganization
was modified on October 9, 1997 and further modified by the Confirmation Order
entered by the Bankruptcy Court on November 19, 1997 and on the record at the
hearing with respect to the Confirmation Order (the "Plan of Reorganization").
On the effective date of the Plan of Reorganization, the Debtor merged into the
Borrower and the Borrower obtained post-effective date revolving credit in the
maximum amount of $150,000,000 pursuant to that certain amended and restated
credit agreement, dated as of December 2, 1997, among the Borrower, as successor
by merger to the Debtor, each of the financial institutions from time to time
party thereto as lenders (together with their successors and assigns, the
"Existing Lenders"), the Underwriters (as defined therein), CIBC, as the issuer
of standby letters of credit, U.S. BANK NATIONAL ASSOCIATION, in its capacity as
the issuer of documentary letters of credit and CIBC, as coordinating and
collateral agent for the Existing Lenders, the Fronting Banks (as defined
therein), the Underwriters and the other Secured Parties (as defined therein),
as amended by that certain First Amendment to the Amended and Restated Revolving
Credit Agreement dated as of August 13, 1998 (the "Existing Credit Agreement").
Contemporaneously herewith, the Borrower is entering into a new credit
facility with Congress Financial Corporation (Central) ("Congress Financial")
for a revolving credit and letter of credit facility in an aggregate principal
amount not to exceed $260,000,000 (the "Congress Facility"), the proceeds of
which will be used, in part, to repay (i) the outstanding principal amount
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of all of the New Revolving Loans owing under the Existing Credit Agreement (the
"Existing Revolving Loans"), (ii) any and all accrued interest, fees, costs and
expenses relating to the Existing Revolving Loans and the Existing Term Loans
(as hereinafter defined) pursuant to the Existing Credit Agreement and (iii)
$92,000,000 of the outstanding principal amount of New Term Loans (as defined in
the Existing Credit Agreement) under the Existing Credit Agreement (the
"Existing Term Loans" and, together with the Existing Revolving Loans, the
"Existing Loans"), which repayment of Existing Term Loans is to be shared pro
rata among the New Term Lenders under the Existing Credit Agreement (the
"Existing Term Lenders").
The Congress Facility will also provide for the issuance of
Back-to-Back Letters of Credit (as hereinafter defined) in favor of the Fronting
Banks under the Existing Credit Agreement which will provide credit support for
the Existing Documentary Letters of Credit (as hereinafter defined) and the
Existing Standby Letters of Credit (as hereinafter defined).
The Borrower is obligated to (i) the New Revolving Lenders under the
Existing Credit Agreement (the "Existing Revolving Lenders") with respect to (A)
Existing Revolving Loans in the aggregate principal amount of $90,000,000, (B)
undrawn Standby Letters of Credit issued for the account of the Borrower
pursuant to the Existing Credit Agreement in the aggregate principal amount of
$14,360,000 (the "Existing Standby Letters of Credit") and (C) undrawn
Documentary Letters of Credit issued for the account of the Borrower pursuant to
the Existing Credit Agreement in the aggregate principal amount of $2,572,759.82
(the "Existing Documentary Letters of Credit" and, together with the Existing
Standby Letters of Credit, the "Existing Letters of Credit"), (ii) the Existing
Term Lenders (together with the Existing Revolving Lenders, the "Existing
Lenders") in the aggregate principal amount of $201,415,478.98, and (iii) the
Agent, the Fronting Banks, the Existing Cash Management Bank (as defined herein)
and the Existing Revolving Lenders in respect of interest, fees, costs, expenses
and all other obligations of the Borrower under the Existing Credit Agreement
and the other documentation relating thereto.
The Existing Revolving Loans, together with a portion of the Existing
Term Loans, are being repaid as provided hereby, the Existing Letters of Credit
are being treated as provided herein and the Existing Credit Agreement is being
amended and restated in its entirety as herein set forth. Upon repayment of the
Existing Revolving Loans, issuance of the Back-to-Back Letters of Credit,
payment of all outstanding interest, fees and expenses, and the occurrence of
the other conditions precedent to the effectiveness of this Agreement, all
Revolving Credit Commitments under the Existing Credit Agreement shall be
terminated.
On the Effective Date, and in connection with the Borrower entering
into the Congress Facility Agreement (as hereinafter defined), the Agent, on
behalf of itself and the other Secured Parties under the Existing Credit
Agreement will terminate its current first priority perfected Lien on (i) all of
the Borrowers' property listed on Schedule 1.1(c) (the "Congress Financial
Collateral"). To maintain security for the repayment of the Term Loans (as
defined herein) and the payment of the other obligations of the Borrower
hereunder and under the other Loan Documents, the Agent,
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on behalf of itself and the Secured Parties (as defined herein), shall retain
(i) its present first perfected priority Lien on all of the Borrower's (A)
personal property which is not Congress Financial Collateral (including, without
limitation, Equipment, Vehicles (as each such term is defined in the Existing
Security Agreement), fixtures, and contracts, general intangibles and promissory
notes relating to the foregoing, and any replacement of, or substitution
for, any of the foregoing) and all proceeds and products thereof, and (B)
real property (with the exception of the seven (7) properties which constitute
Congress Financial Collateral ), including Leases upon such property and
related assets, any replacement or substitution thereof and all proceeds and
products thereof and (ii) its perfected second Lien on all Fortress Collateral
(subject to the prior Liens of Fortress with respect thereto) and all proceeds
and products thereof (collectively, the "CIBC Collateral").
Accordingly, in consideration of the mutual agreements herein set
forth, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS.
Section 1.1. Defined Terms.
As used in this Agreement, the following terms shall have the meanings
specified below:
"ABR Loan" shall mean any Loan bearing interest at a rate determined by
reference to the Alternate Base Rate in accordance with the provisions of
Section 2.3(a) and Section 2.4.
"Adjusted LIBOR Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/100 of 1%) equal to the quotient of (a) the LIBOR
Rate in effect for such Interest Period divided by (b) a percentage (expressed
as a decimal) equal to 100% minus Statutory Reserves. For purposes hereof, the
term "LIBOR Rate" shall mean the rate (rounded upwards, if necessary, to the
next 1/100 of 1%) at which dollar deposits approximately equal in principal
amount to such Eurodollar Borrowing and for a maturity comparable to such
Interest Period are offered to the principal London office of the Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Affiliate" shall mean, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such Person. For purposes of this definition, a Person (a
"Controlled Person") shall be deemed to be "controlled by" another Person (a
"Controlling Person") if the Controlling Person possesses, directly or
indirectly, power to direct or cause the direction of the management and
policies of the Controlled Person whether by contract or otherwise.
"Agent" shall have the meaning set forth in the Heading.
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"Agreement" shall mean this Second Amended and Restated Credit
Agreement, as the same may be amended, amended and restated, supplemented or
otherwise modified from time to time.
"Alternate Base Rate" shall mean, for any day, a rate per annum equal
to the higher of (a) the rate of interest most recently announced by CIBC at its
Domestic Lending Office as its base rate; and (b) the Federal Funds Rate in
effect on such day plus 1/2 of 1%. If for any reason the Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Federal Funds Rate for any reason, including the
inability or failure of the Agent to obtain sufficient quotations in accordance
with the terms hereof, the Alternate Base Rate shall be determined without
regard to clause (b) of the first sentence of this definition, until the
circumstances giving rise to such inability no longer exist. Any change in the
Alternate Base Rate due to a change in CIBC's base rate or the Federal Funds
Rate shall be effective on the effective date of such change in CIBC's base rate
or the Federal Funds Rate, respectively.
"Annual Budget" shall have the meaning set forth in Section 5.1(f).
"Assignment and Acceptance" shall mean an assignment and acceptance by
a Lender and an Eligible Assignee, accepted by the Agent and agreed to by the
Borrower to the extent required by Section 9.3(b), substantially in the form of
Exhibit H.
"Available Property" shall mean all real property, buildings,
improvements and fixtures owned or leased by the Borrower or any Subsidiary
which were not subject to a Lien as of the Existing Effective Date, after
recordation of the Mortgages delivered on such date. To the extent that any real
property, buildings, improvements and fixtures owned or leased by the Borrower
or any Subsidiary, which do not constitute Available Property as of the Existing
Effective Date, become, after the Effective Date, unencumbered by the Lien of
the Colorado Mortgages or any other Lien, such real property, buildings,
improvements and fixtures shall, on the date such Lien is released, become
Available Property unless such property becomes encumbered by a Lien securing
Permitted Refinancing Debt concurrently with the release of such Lien or within
60 days of such release; provided, that on or prior to the date such Lien is
released, the Borrower shall have given written notice to the Agent of its
intention to refinance the Debt secured by such Lien with Permitted Refinancing
Debt. Any real property, buildings, fixtures or improvements which were leased
by the Borrower after the Existing Effective Date shall be considered Available
Property if the subject lease does not prohibit the granting to the Agent of a
Mortgage.
"Back-to-Back Letters of Credit" shall mean those certain irrevocable
letters of credit issued by First Union National Bank in favor of the Fronting
Banks as credit support for the Existing Documentary Letters of Credit and the
Existing Standby Letters of Credit in form and substance acceptable to the
relevant Fronting Bank.
"Bankruptcy Code" shall mean The Bankruptcy Reform Act of 1978, as
heretofore and hereafter amended, and codified as 11 U.S.C. Section 101 et seq.
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"Bankruptcy Court" shall mean the United States Bankruptcy Court for
the Western District of Missouri or any other court having jurisdiction over the
Case from time to time.
"Beneficial Ownership" by a Person when used with respect to any Voting
Shares shall mean beneficial ownership by such Person of such Voting Shares as
defined in Rule 13d-3 of the Exchange Act.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States.
"Borrower" shall have the meaning set forth in the Heading.
"Borrowing" shall mean the refinancing of Loans of a single Type made
from the Lenders on a single date and having, in the case of Eurodollar Loans, a
single Interest Period (with any ABR Loan made pursuant to Section 2.10 being
considered a part of the related Borrowing of Eurodollar Loans).
"Business Day" shall mean any day other than a Saturday, Sunday or
other day on which banks in New York City are required or permitted to close;
provided, however, that when used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Capitalized Lease" shall mean, as applied to any Person, any lease of
property by such Person as lessee which would be capitalized on a balance sheet
of such Person prepared in accordance with GAAP.
"Case" shall mean the Chapter 11 Case of the Debtor commenced on July
21, 1997 in the Bankruptcy Court.
"Cash Management Obligations" shall mean the obligations of the
Borrower to reimburse the Existing Cash Management Bank in respect of
overdrafts, uncollected funds, returned items and reasonable related expenses
arising prior to the Effective Date pursuant to the Existing Cash Management
Agreements.
"Change of Control" shall mean the occurrence of either of the
following events: (x) any Person or any Persons acting together which would
constitute a Group, together with any Affiliates thereof, after the Effective
Date, shall acquire or hold Voting Shares of the Borrower such that such Person
or Group, together with such Affiliates, have Beneficial Ownership of Voting
Shares of the Borrower entitling such Person or Group, together with such
Affiliates, to exercise at least 40% of the total voting power of all Voting
Shares of the Borrower; or (y) any Person or any Group, together with any
Affiliates thereof, shall succeed in having a sufficient number of its or their
nominees elected to the Board of Directors of the Borrower (other than nominees
elected to the Board of
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Directors of the Borrower pursuant to the Plan of Reorganization) such that
such nominees so elected (whether new or continuing as directors) shall
constitute a majority of the Board of Directors of the Borrower.
"CIBC" shall have the meaning set forth in the Heading.
"CIBC Collateral" shall have the meaning set forth in the Introductory
Statement.
"Closing Certificate" shall have the meaning set forth in Section
4.1(a)(iv).
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Colorado Mortgages" shall mean, collectively, that certain Mortgage,
dated as of August 8, 1979, between Xxxxxxxxx'x, Inc. and Southwestern Life
Insurance Company (as assumed by the Borrower on July 28, 1982) and that certain
Mortgage, dated as of August 31, 1982, between the Borrower and Xxxxxxxxx'x,
Inc., each as amended, supplemented or otherwise modified from time to time.
"Confirmation Order" shall mean that certain Order Confirming Plan
dated and filed November 17, 1997 with the United States Bankruptcy Court,
Western District of Missouri.
"Congress Facility" shall have the meaning set forth in the Introductory
Statement.
"Congress Facility Agreement" shall mean that certain Loan and Security
Agreement dated November 17, 1999 by and among the Borrower and Congress
Financial, as lender and agent for the lenders thereunder, as same may be
amended, amended and restated, modified or supplemented from time to time.
"Congress Facility Documents" shall mean the Congress Facility
Agreement and any and all instruments and documents executed in connection
therewith, as same may be amended, amended and restated, modified or
supplemented from time to time.
"Congress Financial" shall have the meaning set forth in the Introductory
Statement.
"Congress Financial Collateral" shall have the meaning set forth in the
Introductory Statement.
"Congress Financing" shall mean the financing by Congress Financial
provided for in the Congress Facility Agreement and the other Congress Facility
Documents.
"Credit Card Lender" shall mean Household Bank, or any successor or
assign thereof.
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"Debt" of any Person shall mean, at any date, without duplication, (i)
all obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee under Capitalized
Leases, (v) all Debt of others secured by (or for which the holder of such Debt
has an existing right, contingent or otherwise, to be secured by) a Lien on any
asset owned, used or operated by such Person, whether or not such Debt is
assumed by such Person, (vi) all Debt of others Guaranteed by such Person,
directly or indirectly, or by an instrument having the effect of assuring
another's payment or performance of any Debt, (vii) indebtedness and other
obligations arising under acceptance facilities and the face amount of all
letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder or payment requests honored with
respect thereto, (viii) all obligations of such Person in respect of interest
rate protection agreements, foreign currency exchange agreements or other
interest or exchange rate hedging arrangements (other than fully paid interest
rate cap arrangements), (ix) all obligations of such Person under conditional
sale or other title retention agreements relating to property or assets
purchased by such Person, and (x) any withdrawal or other liability incurred
under ERISA by such Person (or, if such Person is the Borrower, the Borrower and
its ERISA Affiliates) to a Multiemployer Plan.
"Debt for Borrowed Money" of any Person shall mean Debt of such Person
of the type described in clauses (i) and (ii) of the definition of "Debt" in
this Section and Debt of such type of another Person which is Guaranteed by such
Person.
"Debtor" shall have the meaning set forth in the Introductory Statement.
"Default" shall mean any condition or event which would, with the
giving of notice or lapse of time or both, become an Event of Default.
"Defaulting Lender" shall mean, at any time, any Lender which shall not
have theretofore made available to the Agent its pro rata portion of any amounts
payable pursuant to Section 8.6 for which payment has been requested more than
45 days prior thereto.
"DIP Agent" shall mean CIBC, as coordinating and collateral agent under
the DIP Credit Agreement.
"DIP Credit Agreement" shall mean that certain Revolving Credit
Agreement, dated as of July 21, 1997, among the Borrower, the DIP Lenders, the
Underwriters, the Fronting Banks and CIBC, as coordinating and collateral agent
for the DIP Lenders, the Fronting Banks and the Underwriters, as amended,
amended and restated, modified or supplemented from time to time.
"DIP Financing Order" shall mean the orders of the Bankruptcy Court
authorizing the Debtor to enter into the DIP Credit Agreement, including orders
filed on July 21, 1997 and August 20, 1997.
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"DIP Lenders" shall have the meaning set forth in the Introductory
Statement.
"DIP Obligations" shall mean (a) the due and punctual payment of
principal of and interest on DIP Revolving Credit Loans (as defined in the DIP
Credit Agreement) and the reimbursement of all amounts drawn under the DIP
Letters of Credit (as defined in the DIP Credit Agreement), and (b) the due and
punctual payment of all other present and future, fixed or contingent, monetary
and performance obligations of the Borrower to the DIP Lenders, the DIP Fronting
Banks (as defined in the DIP Credit Agreement), the Underwriters (as defined in
the DIP Credit Agreement) and the DIP Agent under the DIP Credit Agreement.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"Domestic Lending Office" shall mean initially, as to each Lender, its
office designated on the signature pages to this Agreement, and thereafter, upon
notice to the Borrower and the Agent, such other office of such Lender, if any,
which shall be making or maintaining ABR Loans.
"Effective Date" shall mean the first Business Day after which each of
the conditions set forth in Section 4.1 shall have been satisfied or waived in
accordance with the terms hereof, which Effective Date shall be no later than
November 30, 1999 unless such date shall have been extended in writing by the
Agent and the Existing Majority Term Lenders.
"Eligible Assignee" shall mean (i) a commercial bank having total
assets in excess of $1,500,000,000 and (ii) a finance company, insurance company
or other financial institution or fund, in each case acceptable to the Agent,
which in the ordinary course of business extends credit of the type herein and
has total assets in excess of $250,000,000 and whose becoming an assignee would
not constitute a prohibited transaction under Section 4975 of ERISA.
"Environmental Clean-up Site" shall have the meaning set forth in Section
6.12(d).
"Environmental Law" shall have the meaning set forth in Section 6.12(d).
"Environmental Lien" shall mean a Lien in favor of any Governmental
Authority for (i) any liability under any Environmental Law, or (ii) damages
arising from or costs incurred by such Governmental Authority in response to a
release or threatened release of a Hazardous Substance into the environment.
"Environmental Permit" shall have the meaning set forth in Section 6.12(d).
"Equipment" shall have the meaning assigned to such term in the
Security and Pledge Agreement.
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"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) which is a member of a group of which the Borrower or any
Subsidiary is a member and which is under common control within the meaning of
Section 414(b) or (c) of the Code and the regulations promulgated and rulings
issued thereunder.
"ERISA Event" shall mean (a) a "reportable event" as such term is
described in Section 4043 of ERISA (other than a "reportable event" not subject
to the provision for 30-day notice to the PBGC under 29 C.F.R. 2615), or (b) the
withdrawal of the Borrower, any Subsidiary or any ERISA Affiliate of either of
them from a Multiple Employer Plan or a Single Employer Plan during a Plan year
in which it was a "substantial employer", as such term is defined in Section
4001(a)(2) of ERISA, which would result in any liability to the Borrower, any
Subsidiary or any ERISA Affiliate of either of them, or the incurrence of
liability by the Borrower, any Subsidiary or any ERISA Affiliate of either of
them under Section 4064 of ERISA upon the termination of a Multiple Employer
Plan or a Single Employer Plan, or (c) an event described in Section 4068(f) of
ERISA, or (d) the distribution of a notice of intent to terminate a Plan
pursuant to Section 4041(a)(2) of ERISA or the treatment of a Plan amendment as
a termination under Section 4041 of ERISA where, in either case, such
termination would result in any liability to the Borrower, a Subsidiary or any
ERISA Affiliate of either of them, or (e) the failure by the Borrower, a
Subsidiary or any ERISA Affiliate of either of them to make a payment to a Plan
pursuant to Section 302(f)(1) of ERISA, or (f) the adoption of any amendment to
a Plan requiring the provision of security to such Plan pursuant to Section 307
of ERISA, or (g) the institution of proceedings to terminate a Plan by the PBGC
under Section 4042 of ERISA, or (h) any other event or condition which might
constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan.
"Eurocurrency Liabilities" shall have the meaning assigned thereto in
Regulation D issued by the Board, as in effect from time to time.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Adjusted LIBOR Rate in accordance with the
provisions of Section 2.3(b) and Section 2.4.
"Eurodollar Lending Office" shall mean, initially as to each Lender,
its office, designated on the signature pages to this Agreement or such other
office, branch or Affiliate of such Lender as it may hereafter designate as its
Eurodollar Lending Office by notice to the Borrower and the Agent.
"Event of Default" shall have the meaning set forth in Section 7.1.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Existing Agreements" shall mean the Pre-Petition Credit Agreement, the
DIP Credit Agreement, the Existing Credit Agreement, the Existing Security
Agreement, and all of the agreements and the DIP Financing Order granting Liens
on Property and other assets of the Borrower to the Lenders, and such other
agreements, instruments and documents delivered in connection with any of the
foregoing, as each may have been amended, amended and restated, modified or
supplemented from time to time.
"Existing Cash Management Agreements" shall mean the documentation
evidencing the cash management arrangements between the Existing Cash Management
Bank and the Borrower, as in effect on and immediately prior to the Effective
Date.
"Existing Cash Management Bank" shall mean Bank of America and its
respective Affiliates, if applicable, each in its capacity as the holder of Cash
Management Obligations.
"Existing Credit Agreement" shall have the meaning set forth in the
Introductory Statement.
"Existing Documentary Letters of Credit" shall have the meaning set
forth in the Introductory Statement.
"Existing Effective Date" shall mean the Effective Date of the Existing
Credit Agreement.
"Existing Letters of Credit" shall have the meaning set forth in the
Introductory Statement.
"Existing Loans" shall have the meaning set forth in the Introductory
Statement.
"Existing Majority Term Lenders" shall mean the Majority Term Lenders
as such term is defined in the Existing Credit Agreement.
"Existing Obligations" shall mean all obligations owing by the Borrower
under the Existing Agreements.
"Existing Revolving Lenders" shall have the meaning set forth in the
Introductory Statement.
"Existing Revolving Loans" shall have the meaning set forth in the
Introductory Statement.
"Existing Secured Parties" shall mean the Secured Parties as defined in
the Existing Security Agreement.
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"Existing Security Agreement" shall mean that certain Amended and
Restated Security and Pledge Agreement, dated as of December 2, 1997, by and
between the Borrower and CIBC, as coordinating and collateral agent, for its
benefit and the benefit of the Existing Secured Parties.
"Existing Security Documents" shall mean the Security Documents as
defined in the Existing Credit Agreement.
"Existing Standby Letters of Credit" shall have the meaning set forth
in the Introductory Statement.
"Existing Term Lenders" shall have the meaning set forth in the
Introductory Statement.
"Existing Term Loans" shall have the meaning set forth in the
Introductory Statement.
"Federal Funds Rate" shall mean, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Financial Officer" shall mean the Chief Financial Officer, Vice
President Finance or the Treasurer of the Borrower.
"Fortress" shall mean Fortress Investments Group LLC (as
successor-in-interest to UBS in respect of the obligations under the UBS Loan
Agreement and the documents executed in connection therewith) and Fortress'
successors and assigns.
"Fortress Collateral" shall mean the real property listed on Schedule
1.1(b) annexed hereto, together with the improvements, fixtures and
appurtenances relating thereto, which is collateral for the Fortress Real Estate
Financing.
"Fortress Loan Agreement" shall mean the UBS Loan Agreement as assigned
by UBS to Fortress, as the same may be amended, amended and restated,
supplemented or otherwise modified to the extent permitted by this Agreement.
"Fortress Loan Documents" shall mean the Fortress Loan Agreement, each
of the mortgages and deeds of trust delivered with respect to the Fortress
Collateral, and any and all documents, agreements and instruments related
thereto, each as amended, amended and restated, supplemented or otherwise
modified to the extent permitted by this Agreement.
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"Fortress Real Estate Financing" shall mean the financing by Fortress
provided for by the Fortress Loan Agreement and the other Fortress Loan
Documents.
"Fronting Banks" shall mean (i) with respect to Existing Standby
Letters of Credit, CIBC and (ii) with respect to the Existing Documentary
Letters of Credit, U.S. Bank National Association, successor by merger to First
Bank National Association.
"GAAP" shall mean generally accepted accounting principles applied on a
basis consistent with those used in preparing the financial statements referred
to in Section 3.4.
"Governmental Authority" shall mean any Federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality or any court, in each case whether of the United States or
foreign.
"Group" shall mean a "group" for purposes of Section 13(d) of the
Exchange Act.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Debt or other obligation (whether arising by
virtue of partnership arrangements, by agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for the purpose of
assuring in any other manner the obligee of such Debt or other obligation of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part); provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Hazardous Substance" shall have the meaning set forth in Section 6.12(d).
"Household Bank" shall mean Household Bank (SB), N.A.
"Household Credit Program Documents" shall mean the Merchant Agreement
dated as of August 27, 1999 by and between Household Bank and the Borrower, as
such agreement may be amended, amended and restated, supplemented or otherwise
modified from time to time, together with any agreements entered into by the
Borrower in replacement of such agreement.
"Indemnified Party" shall have the meaning set forth in Section 9.6.
"Insufficiency" shall mean, with respect to any Plan, the amount, if
any, of its unfunded benefit liabilities within the meaning of Section
4001(a)(18) of ERISA.
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"Interest Payment Date" shall mean (i) as to any Eurodollar Loan, the
last calendar day of each month during each Interest Period with respect to such
Eurodollar Loan and the last day of each such Interest Period, and (ii) as to
all ABR Loans, the last calendar day of each month and the date on which any ABR
Loans are refinanced with Eurodollar Loans pursuant to Section 2.6.
"Interest Period" shall mean, as to any Borrowing of Eurodollar Loans
(as a result of a financing), the period commencing on the date of such
Borrowing (as a result of a refinancing) of ABR Loans or on the last day of the
preceding Interest Period applicable to such Borrowing (as a result of a
refinancing) of ABR Loans and ending on the numerically corresponding day (or if
there is no corresponding day, the last day) in the calendar month that is 1, 2,
3 or 6 months thereafter, as the Borrower may elect in the related notice
delivered pursuant to Section 2.6; provided, however, that (i) if any Interest
Period would end on a day which shall not be a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii) no
Interest Period shall end later than the Maturity Date for the Loans to which
such Interest Period relates.
"Investments" shall have the meaning set forth in Section 6.7.
"Lenders" shall have the meaning set forth in Section 2.1.
"Lender's Percentage" shall mean, as to each Lender, at any time, the
percentage equal to such Lender's share of the aggregate outstanding principal
amount of Term Loans. Each Lender's Percentage on and as of the Effective Date
is set forth on Schedule 1.1(a).
"Lending Office" shall mean, as to each Lender, its Domestic Lending
Office or its Eurodollar Lending Office, as the context may require.
"Lien" shall mean, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind whatsoever in
respect of such asset. For the purposes of this Agreement, the Borrower or any
Subsidiary shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset.
"Loan" or "Loans" shall have the meaning set forth in Section 2.1(a).
"Loan Documents" shall mean this Agreement, the Security Documents, the
Existing Cash Management Agreements, and any other instrument or agreement
executed and delivered in connection herewith, as each may be amended, amended
and restated, supplemented or otherwise modified from time to time.
"Lumberjack" shall mean Lumberjack Stores, Inc.
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"Majority Lenders" shall mean, at any time, Lenders holding Term Loans
representing more than 50% of the aggregate principal amount of such Term Loans
outstanding; provided, that for purposes of this definition, the Term Loans of a
Lender shall be disregarded if and for so long as such Lender shall be a
Defaulting Lender.
"Material Adverse Effect" shall mean (i) with respect to the Borrower
and its Subsidiaries, any materially adverse change in the business, operations,
condition (financial or otherwise), properties, assets or prospects of the
Borrower and its Subsidiaries taken as a whole, or (ii) any fact or circumstance
which, singly or in the aggregate, could reasonably be expected to result in (a)
a materially adverse change described in clause (i) or (b) the inability of the
Borrower or any of its Subsidiaries to perform in any material respect its
obligations hereunder, under the other Loan Documents or under the Congress
Facility Documents.
"Maturity Date" shall mean November 30, 2002, or such earlier date on
which the Loans shall become due in accordance with Section 7.
"Maximum Rate" shall have the meaning set forth in Section 2.4(b).
"Minority Investment" shall mean any Investment consisting of the
acquisition of non-majority ownership interests in any Person.
"ML&B" shall have the meaning set forth in Section 4.1(j).
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or if such company
shall cease to issue ratings, another nationally recognized statistical rating
company selected in good faith by mutual agreement of the Agent and the
Borrower.
"Mortgages" shall mean all of the mortgages executed and delivered by
the Borrower to CIBC, as coordinating and collateral agent, for its benefit and
the benefit of the Secured Parties pursuant to and in connection with the
Existing Credit Agreement, together with any mortgages and deeds of trust
executed and delivered by the Borrower to the Agent for its benefit and the
benefit of the Secured Parties after the Effective Date in respect of Available
Property, in each case as amended, amended and restated, supplemented or
otherwise modified from time to time.
"Multiemployer Plan" shall mean a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which the Borrower, any Subsidiary or any ERISA
Affiliate is making or accruing an obligation to make contributions, or has
within any of the preceding five plan years made or accrued an obligation to
make contributions.
"Multiple Employer Plan" shall mean an employee benefit plan, other
than a Multiemployer Plan, subject to Title IV of ERISA to which the Borrower,
any Subsidiary or any ERISA Affiliate of the Borrower or any Subsidiary, and
more than one employer other than the Borrower, any
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Subsidiary or an ERISA Affiliate of the Borrower or any Subsidiary, is making
or accruing an obligation to make contributions or, in the event that any such
plan has terminated, to which the Borrower, any Subsidiary or any ERISA
Affiliate of the Borrower or any Subsidiary made or accrued an obligation to
make contributions during any of the five plan years preceding the date of
termination of such plan.
"Net Cash Proceeds" shall mean, with respect to any sale, lease,
transfer or other disposition of property or other assets: (a) the cash proceeds
received by the Borrower or any Subsidiary (including, without limitation, all
cash proceeds received by way of (i) deferred payment of principal pursuant to a
note or installment receivable, but only as and when received and (ii) other
assets retained by the Borrower as part of the sales consideration), minus (b)
reasonable and customary brokerage commissions and other reasonable and
customary fees and expenses (including reasonable and customary fees and
expenses of counsel and investment bankers actually paid by the Borrower or such
Subsidiary) related to such financing, sale, lease or other disposition or
issuance, minus (c) payments made to retire Debt (other than the Loans) secured
by such assets being sold or otherwise disposed of where payment of such Debt is
required in connection with such sale or disposition.
"Obligations" shall mean the due and punctual payment of principal of
and interest on the Term Loans and all other present and future, fixed or
contingent, monetary and performance obligations owed to the Term Lenders and
the Agent under the Loan Documents.
"Other Amounts" shall have the meaning set forth in Section 2.4(b).
"Other Taxes" shall have the meaning set forth in Section 2.12(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor agency or entity performing substantially the same functions.
"Payment Letter" shall have the meaning set forth in Section 4.1(d).
"Payment Amount" shall have the meaning set forth in Section 4.1(d).
"Permitted Liens" shall mean (i) Liens imposed by law (other than
Environmental Liens and any Lien imposed by ERISA) for taxes, assessments or
charges of any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves or other appropriate provisions are being maintained in
accordance with GAAP; (ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens (other than Environmental
Liens and any Lien imposed by ERISA) imposed by law created in the ordinary
course of business for amounts not yet due or which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with GAAP; (iii)
Liens (other than any Lien imposed by ERISA) incurred or deposits made in the
ordinary course of
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business (including, without limitation, surety bonds and appeal bonds) in
connection with workers' compensation, unemployment insurance and other types
of social security benefits or to secure the performance of tenders, bids,
leases, contracts (other than for the repayment of Debt), statutory obligations
and other similar obligations or arising as a result of progress payments under
government contracts; (iv) easements (including, without limitation, reciprocal
easement agreements and utility agreements), rights-of-way, covenants,
consents, reservations, encroachments, variations and zoning and other
restrictions, charges or encumbrances (whether or not recorded), which do
not interfere materially with the ordinary conduct of the business of the
Borrower and which do not materially detract from the value of the property
to which they attach or materially impair the use thereof to the Borrower;
(v) purchase money Liens granted by the Borrower or its Subsidiaries upon
Inventory of the Borrower and its Subsidiaries securing the purchase price
therefor not to exceed $1,000,000 in unpaid purchase price in the aggregate for
the Borrower and its Subsidiaries at any one time and purchase money Liens upon
or in any other property acquired or held in the ordinary course of business to
secure the purchase price of such property or to secure Debt permitted by
Section 6.2(vi) solely for the purpose of financing the acquisition of such
property and Capitalized Leases permitted by Section 6.2 and true leases on
account of which financing statements have been filed; provided, that the
aggregate Debt secured by all such purchase money Liens (other than Capitalized
Leases) shall not exceed in the aggregate for the Borrower and its Subsidiaries
$2,000,000 outstanding at any time; (vi) judgment Liens, but only to the extent
that the related judgment does not constitute an Event of Default under Section
7.1(i); and (vii) extensions, renewals or replacements of any Lien referred to
in paragraphs (i) through (v) above, including in connection with the incurrence
of Permitted Refinancing Debt; provided, that the principal amount of the
obligation secured thereby is not increased and that any such extension, renewal
or replacement Lien is limited to the property originally encumbered thereby.
"Permitted Refinancing Debt" shall mean Debt incurred by the Borrower
to refinance the Congress Financing (or a portion thereof) or the Fortress Real
Estate Financing (or a portion thereof) in a principal amount not less than the
principal amount of the obligations (or the portion thereof) being refinanced;
provided, that (i) the principal amount of such Debt is not increased from its
then existing amount and such Debt is not secured by any assets of the Borrower
other than the assets securing the Debt being refinanced and, in the case of a
refinancing of less than the entire outstanding principal amount of the Fortress
Real Estate Financing or the Congress Facility, as the case may be, such Debt is
not secured by any assets of the Borrower not specifically allocated to the
portion of the Fortress Real Estate Financing or the Congress Financing being
refinanced and, in all cases, any Liens on such assets in favor of the Agent,
for its benefit and the benefit of the other Secured Parties, remain in full
force and effect and (ii) such Debt is incurred on terms and conditions
(including financial and other covenants and events of defaults) and with a
weighted average tenor which, taken as a whole, would be no less favorable to
the Borrower than the terms, conditions and tenor of the Debt being refinanced
as in effect on the date hereof.
"Person" shall mean any natural person, corporation, division of a
corporation, limited liability company, limited liability partnership,
partnership, trust, joint venture, association,
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company, estate, unincorporated organization or government or any agency or
political subdivision thereof.
"Plan" shall mean an employee benefit plan (other than a Multiemployer
Plan), including any Multiple Employer Plan, which is or, in the event that any
such plan has been terminated within five years after the occurrence of a
transaction described in Section 4069 of ERISA, was maintained for employees of
the Borrower, any Subsidiary or any ERISA Affiliate of the Borrower or any
Subsidiary and is subject to Title IV of ERISA.
"Plan of Reorganization" shall mean that certain First Amended Plan of
Reorganization, filed by the Debtor in the Case on September 5, 1997, as
modified on October 9, 1997 and as further modified in the Confirmation Order
and on the record at the hearing with respect thereto, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
the terms thereof as in effect on the date hereof.
"Pre-Petition Agent" shall mean CIBC, as administrative and collateral
agent for the Pre-Petition Lenders, the letter of credit bank and the co-agents
party to the Pre-Petition Credit Agreement.
"Pre-Petition Credit Agreement" shall mean that certain Amended and
Restated Credit Agreement, dated as of October 3, 1996, among Payless Cashways,
Inc., the Pre-Petition Lenders, the Pre-Petition Agent, the letter of credit
bank and the co-agents named therein, as amended, amended and restated,
supplemented or otherwise modified.
"Pre-Petition Lenders" shall mean the lenders from time to time party
to the Pre-Petition Credit Agreement.
"Pre-Petition Obligations" shall mean the loans made by the
Pre-Petition Lenders under the Pre-Petition Credit Agreement and all other
obligations of the Debtor to the Pre-Petition Agent and the Pre-Petition Lenders
pursuant to the Pre-Petition Credit Agreement and all documents and agreements
executed in connection therewith.
"Property" shall have the meaning set forth in Section 6.12(d).
"Register" shall have the meaning set forth in Section 9.3(d).
"Release" shall have the meaning set forth in Section 6.12(d).
"Remedial Work" shall have the meaning set forth in Section 6.12(c).
"Requirement of Law" shall mean, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or governing
documents of such Person, and any
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law, treaty, rule or regulation or determination of an arbitrator or a
court or other Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any of its
property is subject.
"Restricted Payments" shall mean (i) any dividend or other distribution
in cash or in kind on any shares of the Borrower's capital stock, (ii) any
payment in cash or in kind (including, without limitation, the setting aside of
assets or the deposit of funds therefor) on account of the purchase, redemption,
retirement or acquisition of (a) any shares of the Borrower's capital stock or
(b) any option, warrant or other right to acquire shares of the Borrower's
capital stock, (iii) any issuance of any capital stock (or any options,
warrants, rights or other equity securities relating to any capital stock)
except pursuant to the Plan of Reorganization or as contemplated by Section 9.2
thereof, (iv) any payment or prepayment of principal or interest on account of
Debt for Borrowed Money (other than the Loans) or any purchase, defeasance,
redemption, retirement or acquisition of any principal or interest on such Debt
or Obligations (including, without limitation, the setting aside of assets or
the deposit of funds therefor) or (v) any payment of management or consulting
fees to an Affiliate of the Borrower.
"S&P" shall mean Standard & Poor's Ratings Group (a division of
XxXxxx-Xxxx, Inc.) or, if such company shall cease to issue ratings, another
nationally recognized statistical rating company selected in good faith by
mutual agreement of the Agent and the Borrower.
"Secured Obligations" shall mean the Obligations, the Cash Management
Obligations, if any, and all other obligations owing to the Secured Parties (or
any of them) in their capacities as such.
"Secured Parties" shall mean the Agent, the Lenders, and the Existing
Cash Management Bank, and each of their respective successors and assigns.
"Security and Pledge Agreement" shall have the meaning set forth in
Section 4.1(f).
"Security Documents" shall mean the Security and Pledge Agreement, all
Subsidiary Security Agreements, all Subsidiary Guarantees, the Mortgages and all
other security agreements, mortgages, pledges and assignments at any time
delivered by the Borrower or any of the Subsidiaries to the Agent pursuant to
the terms of the Existing Agreements or this Agreement, each as amended, amended
and restated, supplemented or otherwise modified from time to time.
"Single Employer Plan" shall mean a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (i) is maintained for employees of the
Borrower or an ERISA Affiliate or (ii) was also maintained and in respect of
which the Borrower could have liability under Section 4069 of ERISA in the event
such Plan has been or were to be terminated.
"Statutory Reserves" shall mean on any date the percentage (expressed
as a decimal) established by the Board and any other banking authority which is
the then stated maximum rate for
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all reserves (including, but not limited to, any emergency, supplemental or
other marginal reserve requirements) applicable to any member bank of the
Federal Reserve System in respect of Eurocurrency Liabilities (or any successor
category of liabilities under Regulation D issued by the Board, as in effect
from time to time). Such reserve percentages shall include, without limitation,
those imposed pursuant to said Regulation. The Statutory Reserves shall be
adjusted automatically on and as of the effective date of any change in such
percentage.
"Subsidiary" shall mean, with respect to any Person (herein referred to
as the "parent"), any corporation, association or other business entity (whether
now existing or hereafter organized) of which at least a majority of the
securities or other ownership interests having ordinary voting power for the
election of directors is, at the time as of which any determination is being
made, owned or controlled by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary Guarantee" shall mean the guarantee, substantially in the
form of Exhibit B hereto, to be entered into between each Subsidiary (whether
now existing or hereafter formed, purchased or otherwise acquired) and the Agent
for the benefit of the Secured Parties, as the same may be amended, amended and
restated, supplemented or otherwise modified from time to time.
"Subsidiary Security Agreement" shall mean the security agreement,
substantially in the form of Exhibit C hereto, to be made by each Subsidiary
(whether now existing or hereafter formed, purchased or otherwise acquired) in
favor of the Agent, for the benefit of the Secured Parties, as the same may be
amended, amended and restated, supplemented or otherwise modified from time to
time.
"Survey" shall mean a current survey of the real property covered by
any Mortgage certified to the Agent and the title insurance company insuring the
Mortgage and in form and substance satisfactory to the Agent and the title
insurance company, or in lieu thereof, a copy of the existing survey and, if
required by the title insurance company insuring such Mortgage, an affidavit in
form and substance satisfactory to such title company to remove any exceptions
in the Title Policy with respect to the absence of a current certified survey.
"Taxes" shall have the meaning set forth in Section 2.12.
"Temporary Cash Investments" shall mean any Investment in (i) direct
obligations of the United States or any agency thereof, or obligations
guaranteed by the United States or any agency thereof, in each case maturing
within one year from the date of the acquisition thereof by the Borrower or a
Subsidiary, or (ii) (x) commercial paper rated in the highest grade (A1+/P1 or
its equivalent) by S&P or Moody's or (y) time deposits with, including
certificates of deposit issued by, any office located in the United States of
any bank or trust company that has capital, surplus and undivided profits
aggregating at least U.S. $500,000,000, and whose long term Debt is rated A or
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higher by S&P and A2 or higher by Moody's, in each case maturing within 180 days
from the date of acquisition thereof by the Borrower or a Subsidiary.
"Term Lender" and "Term Lenders" shall have the meanings set forth in
Section 2.1(a).
"Term Loans" shall have the meaning set forth in Section 2.1(a).
"Title Policy" shall mean a mortgage policy of title insurance (ALTA or
the equivalent) insuring the first or second priority Lien of a Mortgage (as the
case may be) in favor of the Agent, in form and substance and issued by title
insurers satisfactory to the Agent and containing no exceptions to coverage
other than matters satisfactory to the Agent in its judgment reasonably
exercised.
"Transferee" shall have the meaning set forth in Section 2.12.
"Type" when used in respect of any Loan or Borrowing shall refer to the
rate of interest by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, "rate" shall mean
the Adjusted LIBOR Rate and the Alternate Base Rate.
"UBS" shall mean UBS Mortgage Finance, Inc.
"UBS Loan Agreement" shall mean (i) that certain Amended and Restated
Loan Agreement, dated as of December 2, 1997, between the Borrower and UBS, as
heretofore amended, and (ii) that certain Loan Agreement, dated as of December
2, 1997, among the Borrower, the banks and financial institutions party thereto
(the "Synthetic Lease Banks") and BA Leasing and Capital Corporation, as agent
for the Synthetic Lease Banks.
"UCC" shall mean the Uniform Commercial Code as in effect at the
relevant time in the relevant jurisdiction.
"Vehicles" shall mean all cars, trucks, trailers, construction and
earth moving equipment and other vehicles covered by a certificate of title law
of any state or other jurisdiction and, in any event, shall include, without
limitation, the vehicles listed on Schedule 1 to the Security and Pledge
Agreement and any Subsidiary Security Agreements and all tires and other
appurtenances to any of the foregoing.
"Voting Shares" shall mean, with respect to any Person, shares of
capital stock of any class or classes (however designated) having general voting
power for the election of the board of directors, managers or trustees of such
Person (irrespective of whether at the time capital stock of any other class or
classes shall have or might have voting power by reason of the happening of any
contingency).
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"Withdrawal Liability" shall have the meaning specified under Part I of
Subtitle E of Title IV of ERISA.
Section 1.2. Terms Generally. The definitions in Section 1.1 shall apply equally
to both the singular and plural forms of the terms defined. Whenever the context
may require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. All references herein to Sections, Exhibits and Schedules shall be
deemed references to Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. Except as otherwise expressly
provided herein, all accounting or financial terms used herein shall be
construed in accordance with GAAP, as in effect from time to time.
SECTION 2. AMOUNT AND TERMS OF CREDIT.
Section 2.1. Assumption and Restructuring of Secured Obligations;
Amortization of Term Loans; etc.
(a) Subject to the terms and conditions and relying upon the
representations, warranties and covenants set forth herein, each of the parties
agrees that, as of the Effective Date, the Existing Credit Agreement is hereby
amended and restated and (i) (A) all outstanding Existing Revolving Loans
extended by the Existing Revolving Lenders pursuant to the Existing Credit
Agreement shall be repaid in full, (B) all accrued interest, fees, costs,
expenses and other monetary obligations relating to the Existing Revolving Loans
shall be repaid in full, (C) all Revolving Obligations (as defined in the
Existing Credit Agreement) under the Existing Credit Agreement (except for the
Borrower's obligations (1) in respect of the Existing Letters of Credit and (2)
as set forth in Sections 9.14 of the Existing Credit Agreement and in this
Agreement which shall remain in full force and effect) shall be deemed satisfied
in full and (D) the Revolving Credit Commitments shall be terminated and
extinguished, (ii) the Back-to-Back Letters of Credit shall be issued and (iii)
the Existing Term Loans extended by the Existing Term Lenders pursuant to the
Existing Credit Agreement shall be permanently reduced by $92,000,000 (each
Existing Term Lender, after the Effective Date, being hereinafter referred to as
a "Term Lender" or a "Lender" and, collectively, the "Term Lenders" or the
"Lenders" and such portion of the Existing Term Loans that shall remain
outstanding, being hereinafter referred to as the "Term Loans" or the "Loans").
The principal amount of Term Loans attributable to each Term Lender shall be in
an amount as is set forth opposite its name on Schedule 1.1(a) annexed hereto.
The Borrower confirms and agrees that it is truly and justly indebted to the
Term Lenders in the aggregate principal amount of $109,415,478.98, without
defense, offset or counterclaim of any kind or nature whatsoever. Principal
amounts outstanding on the Effective Date with respect to Existing Term Loans
(after reduction for principal amounts paid on the Effective Date) shall be
deemed to be principal amounts outstanding with respect to the Term Loans, as of
the Effective Date.
(b) The outstanding principal amount of Term Loans shall be payable in
semi-annual installments of $5,000,000 each on September 15 and May 15 of each
year, commencing
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May 15, 2001. To the extent not previously paid, all Term Loans shall be due
and payable on the Maturity Date. Each principal payment on the Term Loans
pursuant to this Section shall be accompanied by accrued interest on the
principal amount paid to but excluding the date of payment. Without limiting its
obligations under the first sentence of this Section or Section 2.7, the
Borrower unconditionally promises to pay the unpaid principal amount of the Term
Loans on the Maturity Date.
(c) Any amounts received by the Agent in connection with this Agreement
(other than amounts (i) to which the Agent is entitled pursuant to Sections 8.6,
9.5 and 9.6 and (ii) to which the Fronting Banks are entitled pursuant to
Section 2.2(f)) shall be credited to the relevant Term Lenders, as promptly as
practicable after collection by the Agent, in immediately available funds either
by wire transfer or deposit in that Term Lender's correspondent account with the
Agent, as such Term Lender and the Agent shall from time to time agree.
(d) Subject to the terms and conditions and relying upon the
representations, warranties and covenants set forth herein, the Existing Cash
Management Bank and the Borrower agree that (i) the Borrower shall be obligated
to promptly reimburse the Existing Cash Management Bank upon its submission of
an invoice to the Borrower for all Cash Management Obligations and (ii) the
Existing Cash Management Bank shall continue to have its Cash Management
Obligations secured by the CIBC Collateral to the same extent to which the Cash
Management Obligations were secured by such CIBC Collateral prior to the
Effective Date.
(e) The Borrower acknowledges and agrees that (i) the Existing Security
Documents remain in full force and effect with respect to the CIBC Collateral
and (ii) the Liens on the CIBC Collateral securing payment of the Existing
Obligations are in all respects continuing and in full force and effect and
secure the payment of the Existing Obligations and will, following the Effective
Date, secure, among other things, the payment of the Obligations.
Section 2.2. Repayment of Term Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay to the Agent for
the account of each Term Lender the then unpaid principal amount of each Term
Loan on the Maturity Date.
(b) Each Term Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such Term
Lender resulting from each Term Loan made by such Term Lender, including the
amounts of principal and interest payable and paid to such Term Lender from time
to time hereunder.
(c) The Agent shall maintain accounts in which it shall record (i) the
amount of each Term Loan made hereunder, the Type thereof and the Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower
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to each Term Lender hereunder and (iii) the amount of any sum received by the
Agent hereunder for the account of the Term Lenders and each Term Lender's
share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Term Lender or the Agent to maintain such accounts or any error therein shall
not in any manner affect the obligation of the Borrower to repay the Term Loans
in accordance with the terms of this Agreement.
(e) Any Term Lender may request that Term Loans made by it be evidenced by
a promissory note. In such event, the Borrower shall prepare, execute and
deliver to such Term Lender a promissory note payable to the order of such Term
Lender (or, if requested by such Term Lender, to such Term Lender and its
registered assigns) and in form and substance satisfactory to the Term Lender
and approved by the Agent. Thereafter, the Term Loans evidenced by such
promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.3) be represented by one or more promissory
notes in such form payable to the order of the payee named therein.
(f) (i) The Borrower hereby agrees to use its best efforts to replace the
Existing Letters of Credit as soon as practicable.
(ii) Each of the Fronting Banks is authorized to draw upon its
respective Back-to-Back Letter of Credit in accordance with the terms thereof
in order to reimburse itself for each and every draw (together with applicable
fees and expenses) under any Existing Letter of Credit without any notice
or action by any Person, under all circumstances, including, without
limitation: (u) any lack of validity or enforceability of any Existing
Letters of Credit; (v) the existence of any claim, setoff, defense or other
right which the Borrower may have at any time against a beneficiary of any of
the Existing Letters of Credit or against the relevant Fronting Bank, whether
in connection with this Agreement, the transactions contemplated herein
or any unrelated transaction; (w) payment by the relevant Fronting Bank against
any draft, demand, certificate or other document presented under any of the
Existing Letters of Credit which proves to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or inaccurate
in any respect; (x) payment by the relevant Fronting Bank of any of the Existing
Letters of Credit against presentation of a demand, draft or certificate or
other document which does not comply with the terms of such Existing Letters of
Credit(including, without limitation, payment by the Fronting Bank in accordance
with its usual practices and procedures, subsequent to the expiry date of an
Existing Letter of Credit, as long as the Fronting Bank has obtained the
consent of the Borrower; (y) any other circumstance or happening whatsoever,
which is similar to any of the foregoing; or (z) the fact that any Event of
Default shall have occurred and be continuing.
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(iii) Upon the issuance and delivery of the Back-to-Back Letters of Credit,
the Existing Revolving Lenders shall have no further obligations with respect to
the Existing Letters of Credit.
(iv) The Back-to-Back Letters of Credit are exclusively for the benefit of
the Fronting Banks and shall not be subject to the rights of any other Person
and shall remain in place for so long as any Existing Letter of Credit remains
outstanding (including all renewals or extensions thereof).
(v) The Borrower agrees to pay (A) to each Fronting Bank, such fees and
charges in connection with the processing of the Existing Letters of Credit as
are customarily imposed by such Fronting Bank from time to time in connection
with letter of credit transactions in the amounts, at the times and in such
manner as shall be specified by such Fronting Bank in accordance with its
judgment reasonably exercised, (B) to CIBC, as issuer of the Existing Standby
Letters of Credit, for its account, a fronting fee in respect of each Existing
Standby Letter of Credit, for the period from and including the date of issuance
of such Existing Standby Letter of Credit to and including the date of
termination of such Existing Standby Letter of Credit, computed at a rate of
0.125% per annum on the daily average of the aggregate undrawn stated amount of
all outstanding Existing Standby Letters of Credit; provided, however, that,
such rate shall be computed at a rate of 0.250% per annum on the daily average
of the aggregate undrawn stated amount of all outstanding Existing Standby
Letters of Credit if any Existing Standby Letters of Credit are outstanding on
or after February 29, 2000 and (C) to U.S. Bank National Association, as issuer
of the Existing Documentary Letters of Credit, for its account, a fronting fee
in respect of Existing Documentary Letters of Credit computed at a rate to be
determined by such Fronting Bank from time to time in its judgment reasonably
exercised.
All fees described above shall be payable to the Fronting Banks at times to be
determined by the relevant Fronting Bank in its judgment reasonably exercised.
All fees shall be paid in immediately available funds. Once paid, none of the
fees shall be refundable under any circumstances.
Section 2.3. Interest on Loans.
(a) Subject to the provisions of subsection (c) below and Section 2.4, each
Term Loan which is an ABR Loan shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at a rate per annum equal
to the Alternate Base Rate plus 1-1/2%.
(b) Subject to the provisions of subsection (c) below and Section 2.4, each
Term Loan which is a Eurodollar Loan shall bear interest (computed on the basis
of the actual number of days elapsed over a year of 360 days) at a rate per
annum equal, during each Interest Period applicable thereto, to the Adjusted
LIBOR Rate for such Interest Period in effect for such Term Loan plus 2-1/2%.
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(c) Subject to Section 2.4, if the Borrower fails to reduce the principal
amount of the Term Loans in an aggregate amount of no less than $10,000,000 by
December 31, 2000 with the Net Cash Proceeds from the sale, refinancing or
sale-leaseback of any Property of the type described in item (i)(B) of the
definition of CIBC Collateral (and which is permitted under this Agreement),
then, from and after January 1, 2001 (i) each Term Loan which is an ABR Loan
shall bear interest at a rate per annum (computed on the basis of the actual
number of days elapsed over a year of 360 days) equal to the Alternate Base Rate
plus 1-3/4%; and (ii) each Term Loan which is a Eurodollar Loan shall bear
interest at a rate per annum (computed on the basis of the actual number of days
elapsed over a year of 360 days) equal, during each Interest Period applicable
thereto, to the Adjusted LIBOR Rate for such Interest Period in effect for such
Term Loan plus 2-3/4%.
(d) Accrued interest on all Terms Loans shall be payable in arrears on each
Interest Payment Date applicable thereto, on the Maturity Date, after the
Maturity Date on demand, and upon any repayment or prepayment thereof (on the
amount prepaid).
Section 2.4. Default Interest.
(a) If the Borrower shall default in the payment of the principal of or
interest on any Term Loan or in the payment of any other amount becoming due
hereunder, whether at stated maturity, by acceleration or otherwise or, if any
such amount shall be outstanding at the time of the occurrence of any Event of
Default specified in Section 7.1(e) or (f), the Borrower shall pay interest, to
the extent permitted by law, on such defaulted amount up to (but not including)
the date of actual payment (after as well as before judgment) at a rate per
annum (computed on the basis of the actual number of days elapsed over a year of
360 days) equal to (i) in the case of (A) Term Loans which are ABR Loans, and
(B) all other amounts due hereunder, the Alternate Base Rate plus 3-1/2% and
(ii) in the case of Term Loans which are Eurodollar Loans, the Adjusted LIBOR
Rate in effect for such Term Loans plus 4-1/2%; provided, that if the Borrower
shall have failed to reduce the principal amount of the Term Loans in an
aggregate amount of not less than $10,000,000 by December 31, 2000 with the Net
Cash Proceeds from the sale, refinancing or sale-leaseback of any Property of
the type described in item (i)(B) of the definition of CIBC Collateral (and
which is permitted under this Agreement), then, from and after January 1, 2001,
the Borrower shall pay interest, to the extent permitted by law, on such
defaulted amount up to (but not including) the date of actual payment (after as
well as before judgment) at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to (iii) in the
case of (A) Term Loans which are ABR Loans, and (B) all other amounts due
hereunder, the Alternate Base Rate plus 3-3/4% and (iv) in the case of Term
Loans which are Eurodollar Loans, the Adjusted LIBOR Rate in effect for such
Term Loans plus 4-3/4%.
(b) Notwithstanding anything herein to the contrary, if at any time the
applicable interest rate, together with all fees and charges which are treated
as interest under applicable law (collectively, the "Other Amounts"), as
provided for herein or in any other document executed in
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connection herewith, or otherwise contracted for, charged, received, taken
or reserved by any Term Lender, shall exceed the maximum lawful rate (the
"Maximum Rate") which may be contracted for, charged, taken, received or
reserved by such Term Lender in accordance with applicable law, the rate of
interest payable to such Term Lender, together with all Other Amounts payable
to such Term Lender, shall be limited to the Maximum Rate.
Section 2.5. Alternate Rate of Interest. In the event, and on each occasion,
that on or prior to the first day of any Interest Period for a Eurodollar Loan,
the Agent shall have determined (which determination shall be conclusive and
binding upon the Borrower absent manifest error) that reasonable means do not
exist for ascertaining the applicable Adjusted LIBOR Rate, the Agent shall, as
soon as practicable thereafter, give written or telegraphic notice of such
determination to the Borrower and the Lenders, and any request by the Borrower
for a Borrowing of Eurodollar Loans (including pursuant to a refinancing with
Eurodollar Loans) pursuant to Section 2.6 shall be deemed a request for a
Borrowing of ABR Loans. After such notice shall have been given and until the
circumstances giving rise to such notice no longer exist, each request for a
Borrowing of Eurodollar Loans shall be deemed to be a request for a Borrowing of
ABR Loans.
Section 2.6. Refinancing of Loans. Except as contemplated by Section 2.4, Loans
shall be either ABR Loans or Eurodollar Loans as the Borrower may request
subject to and in accordance with this Section; provided, that all Term Loans
made pursuant to the same Borrowing shall, unless otherwise specifically
provided herein, be Loans of the same Type. With respect to the conversion of
any Term Loans, each Term Lender may convert any Term Loans with respect to any
Eurodollar Loan or ABR Term Loan by causing any Lending Office of such Term
Lender to convert such Term Loan; provided, that any such use of a Lending
Office shall not affect the obligation of the Borrower to repay such Term Loan
in accordance with the terms hereof. Each Term Lender shall, subject to its
overall policy considerations, use reasonable efforts (but shall not be
obligated) to select a Lending Office which will not result in the payment of
increased costs by the Borrower pursuant to Section 2.9. Subject to the other
provisions of this Section, Borrowings of Loans of more than one Type may be
incurred at the same time; provided, that no more than five (5) Borrowings of
Eurodollar Loans may be outstanding at any time. The Borrower shall have the
right, at any time, on three Business Days prior irrevocable notice to the
Agent, substantially in the form of Exhibit E hereto (which notice, to be
effective, must be completed and received by the Agent not later than 12:00
noon, New York City time, on the third Business Day preceding the date of any
refinancing), (x) to refinance any outstanding Borrowing or Borrowings of Loans
of one Type (or a portion thereof) with a Borrowing of Loans of the other Type
or (y) to continue an outstanding Borrowing of Eurodollar Loans for an
additional Interest Period, subject to the following:
(a) as a condition to the refinancing of ABR Loans with Eurodollar Loans
and to the continuation of Eurodollar Loans for an additional Interest Period,
(i) no Default or Event of Default shall have occurred and be continuing at the
time of such refinancing or continuation and (ii) at the time of such
refinancing or continuation, all representations and warranties contained in
this Agreement and the other Loan Documents shall be true and correct in all
material respects;
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(b) if less than a full Borrowing of the Loans shall be refinanced, such
refinancing shall be made pro rata among the Lenders in accordance with the
respective principal amounts of the Loans comprising such Borrowing held by such
Lenders immediately prior to such refinancing;
(c) the aggregate principal amount of Loans being refinanced shall be at
least $1,000,000; provided, that no partial refinancing of a Borrowing of
Eurodollar Loans shall result in the Eurodollar Loans remaining outstanding
pursuant to such Borrowing being less than $5,000,000 in aggregate principal
amount;
(d) each Lender shall effect each refinancing by applying the proceeds of
its new Eurodollar Loan or ABR Loan, as the case may be, to its Loan being
refinanced;
(e) the Interest Period with respect to a Borrowing of Eurodollar Loans
effected by a refinancing or in respect to the Borrowing of Eurodollar Loans
being continued as Eurodollar Loans shall commence on the date of refinancing or
the expiration of the current Interest Period applicable to such continuation of
Eurodollar Loans, as the case may be; and
(f) a Borrowing of Eurodollar Loans may be refinanced only on the last day
of an Interest Period applicable thereto.
In the event that the Borrower shall not give notice to refinance any Borrowing
of Eurodollar Loans, or to continue such Borrowing as Eurodollar Loans, or shall
not be entitled to refinance or continue such Borrowing as Eurodollar Loans, in
each case as provided above, such Borrowing shall automatically be refinanced
with a Borrowing of ABR Loans at the expiration of the then-current Interest
Period. The Agent shall, after it receives notice from the Borrower, promptly
give each Lender notice of any refinancing, in whole or part, of any Loan made
by such Lender.
Section 2.7. Mandatory Prepayments.
(a) Unless otherwise provided herein, upon receipt by the Borrower of any
Net Cash Proceeds from the sale, lease or other disposition (including as a
result of Condemnation (as defined in the Mortgages)) of any CIBC Collateral
(other than the sale, lease or other disposition of assets subject to the Liens
granted to Fortress pursuant to the Fortress Loan Documents to the extent that
the Net Cash Proceeds thereof are applied solely to repay the Fortress Real
Estate Financing), then 100% of such Net Cash Proceeds shall be immediately paid
to the Agent for the account of the Lenders, and applied as provided in Section
2.7(d); provided, that in the case of any fiscal year, the provisions of this
subsection (a) shall be applicable to the Net Cash Proceeds from the sale(s) of
Equipment and Vehicles which constitute CIBC Collateral only if and to the
extent that the aggregate amount of the Net Cash Proceeds from such sale(s)
received in such fiscal year exceeds $1,000,000.
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(b) The Borrower shall, from time to time until payment in full of the Term
Loans and the termination of this Agreement, within 10 days following the
receipt by the Borrower (or by the Agent as loss payee) of any payment of
proceeds of any insurance (other than business interruption insurance) required
to be maintained pursuant to this Agreement on account of each separate loss,
damage or injury in excess of $1,000,000 to any tangible property of the
Borrower or any of its Subsidiaries, to the extent such property constitutes
CIBC Collateral (unless no Default or Event of Default shall have occurred and
be continuing and such proceeds (or any portion thereof) shall have been
expended or irrevocably committed by the Borrower to repair or replace such
property within 24 months of such loss, damage or injury and the Borrower shall
have furnished to the Agent evidence satisfactory to the Agent of such
expenditure or commitment and shall have certified to the Agent that such
proceeds (or such proceeds together with other funds available to the Borrower)
are sufficient to repair or replace such property, pending which the Agent shall
hold such proceeds), apply or, to the extent the Agent is loss payee under any
insurance policy, irrevocably direct the Agent to apply, an amount equal to 100%
(or such lesser percentage which represents that portion of such proceeds not
expended or committed pursuant to the immediately preceding parenthetical
phrase) of such insurance proceeds as provided in Section 2.7(d); provided, that
if an Event of Default shall have occurred and be continuing, all proceeds of
insurance required to be maintained pursuant to this Agreement relating to the
CIBC Collateral which would otherwise be payable to the Borrower shall be paid
to the Agent and held or applied pursuant to Section 7.2; provided, however,
that with respect to tangible property subject to any Lien permitted under this
Agreement (including, without limitation, any Congress Financial Collateral), no
such prepayment or reduction shall be required to the extent that this Section
would require an application of insurance proceeds that would violate or breach
any of the provisions of the instruments or documents under which such Lien
arises or which governs the application of proceeds.
(c) If the Borrower incurs any Permitted Refinancing Debt with respect to
the Fortress Real Estate Financing, the Borrower shall, not later than the
second Business Day after the incurrence thereof, pay to the Agent an amount
equal to the excess, if any, of the Net Cash Proceeds of such Permitted
Refinancing Debt over the aggregate amount of the Debt so refinanced, which
excess Net Cash Proceeds shall be applied as provided in Section 2.7(d).
(d) If, contemporaneously with the payment of any amounts required under
this Section 2.7, no Default or Event of Default shall have occurred and be
continuing, the amounts paid under this Section shall be applied to the
prepayment of the principal of the Term Loans in the inverse order of maturity.
If a Default or Event of Default shall have occurred and be continuing, then the
amounts paid under this Section shall be applied in accordance with Section 7.2.
(e) Each prepayment of the Term Loans pursuant to this Section shall be
accompanied by payment of accrued and unpaid interest on the amount prepaid to
the date of prepayment and any amounts payable pursuant to Section 2.8.
Section 2.8. Optional Prepayment of Loans; Reimbursement of Lenders.
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(a) The Borrower shall have the right at any time and from time to time to
prepay any Term Loans, in whole or in part, (x) with respect to Eurodollar
Loans, upon at least three Business Days' prior written, telex or facsimile
notice to the Agent and (y) with respect to ABR Loans on the same Business Day
if written, telex or facsimile notice is received by the Agent prior to 12:00
noon, New York City time, and thereafter upon at least one Business Days prior
written, telex or facsimile notice to the Agent; provided, that (i) with respect
to Eurodollar Loans, each such partial prepayment shall be in integral multiples
of $5,000,000, (ii) with respect to ABR Loans, each such partial prepayment
shall be in integral multiples of $1,000,000, (iii) no prepayment of Eurodollar
Loans shall be permitted pursuant to this Section other than on the last day of
an Interest Period applicable thereto unless the Borrower pays breakage costs as
provided in Section 2.8(b)(i), and (iv) no partial prepayment of a Borrowing of
Eurodollar Loans shall result in the aggregate principal amount of the
Eurodollar Loans remaining outstanding pursuant to such Borrowing being less
than $5,000,000. Each notice of prepayment shall specify the prepayment date,
the principal amount of the Loans to be prepaid (and, in the case of Eurodollar
Loans, the Borrowing or Borrowings pursuant to which made), shall be irrevocable
and shall commit the Borrower to prepay such Loan by the amount and on the date
stated therein. The Agent shall, promptly after receiving notice from the
Borrower hereunder, notify each Lender of the principal amount of the Term Loans
held by such Lender which are to be prepaid, the prepayment date and the manner
of application of the prepayment.
(b) The Borrower shall reimburse each Lender on demand for any loss
incurred or to be incurred by it in the reemployment of the funds released
resulting from any prepayment (for any reason whatsoever, including, without
limitation, refinancing with ABR Loans) of any Eurodollar Loan required or
permitted under this Agreement, if such Term Loan is prepaid other than on the
last day of the Interest Period for such Term Loan. Such loss shall be the
amount as reasonably determined by such Lender as the excess, if any, of (A) the
amount of interest which would have accrued to such Lender on the amount so paid
or not borrowed at a rate of interest equal to the Adjusted LIBOR Rate for such
Term Loan, for the period from the date of such payment or failure to borrow to
the last day in the case of a payment or refinancing with ABR Loans other than
on the last day of the Interest Period for such Term Loan, of the then current
Interest Period for such Term Loan, over (B) the amount of interest which would
have accrued to such Lender on such amount by placing such amount on deposit for
a comparable period with leading banks in the London interbank market. Each Term
Lender shall deliver to the Borrower from time to time one or more certificates
setting forth the amount of such loss as determined by such Lender (which shall
be conclusive absent manifest error).
(c) In the event the Borrower fails to prepay any Term Loan on the date
specified in any prepayment notice delivered pursuant to Section 2.8(a), the
Borrower on demand by any Term Lender shall pay to the Agent for the account of
such Lender any amounts required to compensate such Lender for any loss incurred
by such Lender as a result of such failure to prepay, including, without
limitation, any loss, cost or expenses incurred by reason of the acquisition of
deposits or other funds by such Lender to fulfill deposit obligations incurred
in anticipation of such prepayment,
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but without duplication of any amounts paid under Section 2.8(b). Each Lender
shall deliver to the Borrower from time to time one or more certificates
setting forth the amount of such loss as determined by such Lender (which
shall be conclusive absent manifest error).
(d) Any partial prepayment of the Term Loans by the Borrower pursuant to
this Section shall be applied to prepayment of the principal of the Term Loans
in the inverse order of maturity.
Section 2.9. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision herein, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender of the
principal of or interest on any Eurodollar Loan made by such Lender or any fees
or other amounts payable hereunder (other than changes in respect of Taxes,
Other Taxes and taxes imposed on, or measured by, the net income or overall
gross receipts or franchise taxes of such Lender by the jurisdiction in which
such Lender has its principal office or in which the applicable Eurodollar
Lending Office for such Eurodollar Loan is located or by any political
subdivision or taxing authority therein, or by any other jurisdiction or by any
political subdivision or taxing authority therein other than a jurisdiction in
which such Lender would not be subject to tax but for the execution and
performance of this Agreement), or shall impose, modify or deem applicable any
reserve, special deposit or similar requirement against assets of, deposits with
or for the account of or credit extended by such Lender (except any such reserve
requirement which is reflected in the Adjusted LIBOR Rate) or shall impose on
such Lender or the London interbank market any other condition affecting this
Agreement or the Eurodollar Loans made by such Lender, and the result of any of
the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal, interest or
otherwise) by an amount deemed by such Lender to be material, then the Borrower
will pay to such Lender in accordance with paragraph (c) below such additional
amount or amounts as will compensate such Lender for such additional costs
incurred or reduction suffered.
(b) If any Lender shall have determined that the applicability of any
change in any law, rule, regulation or guideline adopted pursuant to or arising
out of the July 1988 report of the Base Committee on Banking Regulations and
Supervisory Practices entitled "International Convergence of Capital Measurement
and Capital Standards", or the adoption or effectiveness after the date hereof
of any law, rule, regulation or guideline regarding capital adequacy, or any
change in any of the foregoing or in the interpretation or administration of any
of the foregoing by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender (or any Lending Office of such Lender) or any Lender's holding
company with any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would
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have the effect of reducing the rate of return on such Lender's capital or on
the capital of such Lender's holding company, if any, as a consequence of this
Agreement, the Term Loans made by such Lender pursuant hereto, to a level
below that which such Lender or such Lender's holding company could have
achieved but for such adoption, change or compliance (taking into account such
Lender's policies and the policies of such Lender's holding company with respect
to capital adequacy) by an amount deemed by such Lender to be material, then
from time to time the Borrower shall pay to such Lender such additional amount
or amounts as will compensate such Lender or such Lender's holding company for
any such reduction suffered.
(c) A certificate of each Lender setting forth such amount or amounts as
shall be necessary to compensate such Lender or its holding company as specified
in paragraph (a) or (b) above, as the case may be, shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
each Lender the amount shown as due on any such certificate delivered to it
within 10 days after its receipt of the same. Any Lender receiving any such
payment shall promptly make a refund thereof to the Borrower if the law,
regulation, guideline or change in circumstances giving rise to such payment is
subsequently deemed or held to be invalid or inapplicable.
(d) Failure on the part of any Lender to demand compensation for any
increased costs or reduction in amounts received or receivable or any reduction
in return on capital with respect to any period shall not constitute a waiver of
such Lender's right to demand compensation with respect to such period or any
other period. The protection of this Section shall be available to each Lender
regardless of any possible contention of the invalidity or inapplicability of
the law, rule, regulation, guideline or other change or condition which shall
have occurred or been imposed.
Section 2.10. Change in Legality.
(a) Notwithstanding anything to the contrary contained elsewhere in this
Agreement, if (x) any change in any law or regulation or in the interpretation
thereof by any Governmental Authority charged with the administration thereof
shall make it unlawful for a Lender to make or maintain a Eurodollar Loan or to
give effect to its obligations as contemplated hereby with respect to a
Eurodollar Loan or (y) at any time any Lender determines that the making or
continuance of any of its Eurodollar Loans has become impracticable as a result
of a contingency occurring after the date hereof which adversely affects the
London interbank market or the position of such Lender in such market, then, by
written notice to the Borrower, such Lender may (i) declare that Eurodollar
Loans will not thereafter be made by such Lender hereunder, whereupon any
request by the Borrower for a Eurodollar Borrowing shall, as to such Lender
only, be deemed a request for an ABR Loan unless such declaration shall be
subsequently withdrawn; and (ii) require that all outstanding Eurodollar Loans
made by it be converted to ABR Loans, in which event all such Eurodollar Loans
shall be automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below. In the event any Lender shall
exercise its rights under clause (i) or (ii) of this paragraph (a), all payments
and prepayments of principal which would
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otherwise have been applied to repay the Eurodollar Loans that would have been
made by such Lender or the converted Eurodollar Loans of such Lender shall
instead be applied to repay the ABR Loans made by such Lender in lieu of, or
resulting from the conversion of, such Eurodollar Loans.
(b) For purposes of this Section, a notice to the Borrower by any Lender
pursuant to paragraph (a) above shall be effective, if any Eurodollar Loans
shall then be outstanding, on the last day of the then-current Interest Period
for such Eurodollar Loans (if lawful); otherwise, such notice shall be effective
on the date of receipt by the Borrower.
Section 2.11. Pro Rata Treatment, etc. All payments and repayments of principal
and interest in respect of the Term Loans (except as provided in Sections 2.9
and 2.10) shall be made pro rata among the Lenders in accordance with the then
outstanding principal amount of the Term Loans held by such Lenders hereunder.
All payments by the Borrower hereunder shall be (i) net of any tax applicable to
the Borrower and (ii) made in Dollars in immediately available funds at the
office of the Agent by 12:00 noon, New York City time, on the date on which such
payment shall be due. Interest in respect of any Term Loan hereunder shall
accrue from and including the date of such Term Loan to but excluding the date
on which such Term Loan is paid in full or converted to a Term Loan of a
different Type.
Section 2.12. Taxes.
(a) Any and all payments by the Borrower hereunder shall be made free and
clear of and without deduction for any and all current or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding (i) taxes imposed on or measured by the net income or overall
gross receipts of the Agent or any Lender (or any transferee or assignee
thereof, including a participation holder (any such entity being called a
"Transferee")) and franchise taxes imposed on the Agent or any Lender (or
Transferee) by the United States or any jurisdiction under the laws of which the
Agent or any such Lender (or Transferee) is organized or in which the applicable
Lending Office of any such Lender (or Transferee) is located or any political
subdivision thereof or by any other jurisdiction or by any political subdivision
or taxing authority therein other than a jurisdiction in which the Agent or such
Lender would not be subject to tax but for the execution and performance of this
Agreement and (ii) taxes, levies, imposts, deductions, charges or withholdings
("Amounts") with respect to payments hereunder to a Lender (or Transferee) in
accordance with laws in effect on the later of the date of this Agreement and
the date such Lender (or Transferee) becomes a Lender (or Transferee, as the
case may be), but not excluding, with respect to such Lender (or Transferee),
any increase in such Amounts solely as a result of any change in such laws
occurring after such later date or any Amounts that would not have been imposed
but for actions (other than actions contemplated by this Agreement) taken by the
Borrower after such later date (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder to the Lenders (or any Transferee) or
the Agent, (i) the sum payable shall be increased by the amount necessary so
that after making all
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required deductions (including deductions applicable to additional sums
payable under this Section) such Lender (or Transferee) or the Agent(as the case
may be) shall receive an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant taxing
authority or other Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any current or future stamp or
documentary taxes or any other excise or property taxes, charges, assessments or
similar levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any
other Loan Document (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender (or Transferee) and the Agent
for the full amount of Taxes and Other Taxes paid by such Lender (or Transferee)
or the Agent, as the case may be, and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally asserted by the relevant
taxing authority or other Governmental Authority. Such indemnification shall be
made within 30 days after the date any Lender (or Transferee) or the Agent, as
the case may be, makes written demand therefor. If a Lender (or Transferee) or
the Agent shall become aware that it is entitled to receive a refund in respect
of Taxes or Other Taxes as to which it has been indemnified by the Borrower
pursuant to this Section, it shall promptly notify the Borrower of the
availability of such refund and shall, within 30 days after receipt of a request
by the Borrower, apply for such refund at the Borrower's expense. If any Lender
(or Transferee) or the Agent receives a refund in respect of any Taxes or Other
Taxes as to which it has been indemnified by the Borrower pursuant to this
Section, it shall promptly notify the Borrower of such refund and shall, within
30 days after receipt of a request by the Borrower (or promptly upon receipt, if
the Borrower has requested application for such refund pursuant hereto), repay
such refund to the Borrower (to the extent of amounts that have been paid by the
Borrower under this Section with respect to such refund plus interest that is
received by the Lender (or Transferee) or the Agent as part of the refund), net
of all out-of-pocket expenses of such Lender (or Transferee) or the Agent and
without additional interest thereon; provided, that the Borrower, upon the
request of such Lender (or Transferee) or the Agent, agrees to return such
refund (plus penalties, interest or other charges) to such Lender (or
Transferee) or the Agent in the event such Lender (or Transferee) or the Agent
is required to repay such refund. Nothing contained in this subsection (c) shall
require any Lender (or Transferee) or the Agent to make available any of its tax
returns (or any other information relating to its taxes that it deems to be
confidential).
(d) Within 30 days after the date of any payment of Taxes or Other Taxes
withheld by the Borrower in respect of any payment to any Lender (or Transferee)
or the Agent, the Borrower will furnish to the Agent, at its address referred to
on the signature pages hereof, the original or a certified copy of a receipt
evidencing payment thereof.
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(e) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section shall survive
the payment in full of the principal of and interest on all Loans made hereunder
and all other amounts due hereunder.
(f) Each Lender (or Transferee) that is organized under the laws of a
jurisdiction outside the United States shall, if legally able to do so, prior to
the immediately following due date of any payment by the Borrower hereunder,
deliver to the Borrower such certificates, documents or other evidence, as
required by the Code or Treasury Regulations issued pursuant thereto, including
(A) Internal Revenue Service Form W-8 or W-9, or successor applicable form, as
the case may be, and (B) Internal Revenue Service Form 1001 or Form 4224, or
successor applicable form, as the case may be, and any other certificate or
statement of exemption required by Treasury Regulation Section 1.1441-1,
1.1441-4 or 1.1441-6(c) or any subsequent version thereof or successors thereto,
properly completed and duly executed by such Lender (or Transferee) establishing
that such payment is (i) not subject to United States Federal withholding tax
under the Code because such payment is effectively connected with the conduct by
such Lender (or Transferee) of a trade or business in the United States or (ii)
totally exempt from United States Federal withholding tax or subject to a
reduced rate of such tax under a provision of an applicable tax treaty. Unless
the Borrower and the Agent have received forms or other documents satisfactory
to them indicating that such payments hereunder are not subject to United States
Federal withholding tax or are subject to such tax at a rate reduced by an
applicable tax treaty, the Borrower or the Agent shall withhold taxes from such
payments at the applicable statutory rate.
(g) The Borrower shall not be required to pay any additional amounts to any
Lender (or Transferee) in respect of United States Federal withholding tax
pursuant to subsection (a) above if the obligation to pay such additional
amounts would not have arisen but for a failure by such Lender (or Transferee)
to comply with the provisions of subsection (f) above.
(h) Any Lender (or Transferee) claiming any additional amounts payable
pursuant to this Section shall use reasonable efforts (consistent with legal and
regulatory restrictions) to file any certificate or document requested by the
Borrower or to change the jurisdiction of its applicable Lending Office if the
making of such a filing or change would avoid the need for or reduce the amount
of any such additional amounts that may thereafter accrue and would not, in the
sole determination of such Lender, be otherwise materially disadvantageous to
such Lender (or Transferee).
Section 2.13. Right of Set-Off. Upon the occurrence and during the continuance
of any Event of Default, the Agent and each of the other Secured Parties is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and any and all other
indebtedness at any time owing by such Secured Party to or for the credit or the
account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under the Loan Documents, irrespective of whether or
not such Secured Party shall have made any demand
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under any Loan Document and although such obligations may be unmatured. Each
Secured Party agrees promptly to notify the Borrower after any such set-off
and application made by such Secured Party; provided, that the failure to give
such notice shall not affect the validity of such set-off and application.
Subject to Section 2.14, the rights of each Secured Party under this Section
are in addition to other rights and remedies which such Secured Party may have
upon the occurrence and during the continuance of any Event of Default.
Section 2.14. Sharing of Setoffs. Each Secured Party agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower or any Subsidiary, including, but not limited to, a secured claim
under Section 506 of the Bankruptcy Code or other security or interest arising
from, or in lieu of, such secured claim and received by such Secured Party under
any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain
payment in respect of its Secured Obligations, and the payment received is of a
proportion of the aggregate amount of principal and interest due with respect to
the Loans held by it or other Secured Obligations owing to it which is greater
than the proportion received by any other such Secured Party in respect of the
Loans held by such other Secured Party and the other Secured Obligations owing
to it, the Secured Party receiving such proportionately greater payment shall
purchase such participations in the Loans held by the other Secured Parties
and/or the other Secured Obligations owing to them, and such other adjustments
shall be made, as may be required so that all such payments of principal and
interest with respect to the Loans held by the Lenders or the other Secured
Obligations owing to the Secured Parties shall be shared by the Secured Parties
pro rata; provided, that nothing in this Section shall impair the right of any
Secured Party to exercise any right of set-off or counterclaim it may have and
to apply the amount subject to such exercise to the payment of indebtedness of
the Borrower other than its indebtedness existing hereunder or the other Secured
Obligations owing to it; provided, that if any such non-pro rata payment is
thereafter recovered or otherwise set aside such purchase of participations
shall be rescinded (without interest); provided further, that notwithstanding
anything to the contrary contained in this Section, the Existing Cash Management
Bank shall be entitled to retain any payments it receives in respect of its Cash
Management Obligations if any, or in respect of any cash management services
provided to the Borrower after the Effective Date, in each case as a result of
exercising any right of set-off or any similar right; and provided further, that
all references to "Secured Obligations" in this Section shall mean all Secured
Obligations other than pursuant to Sections 2.9, 2.12, 8.6, 9.5 and 9.6 and any
incremental Secured Obligations arising pursuant to Section 2.10. The Borrower
expressly consents to the foregoing arrangements and agrees that any Lender
holding (or deemed to be holding) a participation in the unpaid amount of a
Secured Obligation may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by the Borrower to such
Lender, as fully as if such Lender was the original obligee in connection with
such obligation, in the amount of such participation.
Section 2.15. Release of Secured Parties. For the benefit of the Secured
Parties, the Borrower hereby expressly releases and discharges the Secured
Parties and the Secured Parties' direct and indirect Subsidiaries and
Affiliates, together with each of their present and former
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shareholders, present and former officers, directors, agents and employees and
each of their present and former attorneys, advisors, consultants, attorneys-
in-fact, experts and other professional persons and representatives whether
presently or formerly retained by attorneys for the Secured Parties or by
the Secured Parties themselves, and the predecessors, successors and assigns
of all or any of them (collectively, the "Releasees") from any and all manner
of actions, claims, causes of action, suits, proceedings, debts, dues, sums
of money, accounts,accountings,reckonings,demands, liabilities, losses, damages,
acts, omissions, misfeasances, malfeasances, promises, breaches of contract,
breaches of duty, breaches of relationship, and all other controversies of
every type, kind, nature, description or character (all of the foregoing,
collectively, the "Claims") whatsoever, whether known or unknown, foreseen
or unforeseen, liquidated or unliquidated, and whether based upon facts now
known or unknown, direct or derivative, in law, admiralty, equity or bankruptcy,
against the Releasees, or any of them, which the Borrower, its Subsidiaries
or their Affiliates and the predecessors, successors or assigns of any or all
of them, ever jointly or individually had, now have or hereafter can, shall or
may have for, upon, or by reason of any matter, cause or thing whatsoever
from the beginning of the world to and including the Effective Date, directly
or indirectly arising from or relating in any way to any and all transactions,
relationships, or dealings relating in any way, directly or indirectly, to the
Existing Credit Agreement, any of the other Existing Agreements, the Existing
Cash Management Agreements, as well as any agreements entered into, or notes, or
other documents executed, in connection with the Existing Credit Agreement or
any of the other Existing Agreements, the Existing Cash Management Agreements or
as an adjunct or supplement thereto, and any prior agreements pursuant to which
the Secured Parties (or any of them or their respective predecessors or
successors) made (or did not make) loans or extensions of credit or any services
or accommodations of any type or kind whatsoever available to or on behalf of
the Borrower.
SECTION 3. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each of the Agent, the Lenders
and the other Secured Parties as follows:
Section 3.1. Organization and Authority. The Borrower (i) as of the Effective
Date, is a corporation duly organized and validly existing under the laws of the
State of Delaware and is duly qualified as a foreign corporation and is in good
standing in each jurisdiction in which the failure to so qualify would have a
Material Adverse Effect, (ii) has the requisite corporate power and authority to
effect the transactions contemplated hereby and by the other Loan Documents to
which it is a party, and (iii) has all requisite corporate power and authority
and the legal right to own, pledge, mortgage and operate its properties, and to
conduct its business as now or currently proposed to be conducted.
Section 3.2. Due Execution. The execution, delivery and performance by the
Borrower of each of the Loan Documents to which it is a party (i) are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action and do not (A) contravene the charter or by-laws of the
Borrower, (B) violate any law (including, without limitation, the Securities
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Exchange Act of 1934) or regulation (including, without limitation, Regulations
G, T, U or X of the Board, or any order or decree of any court or governmental
instrumentality, (C) violate or result in a breach of, or constitute a default
under, any material indenture, mortgage or deed of trust entered into as of the
Effective Date or any material lease, agreement or other instrument entered into
as of the Effective Date binding on the Borrower, any of its Subsidiaries or any
of its properties, or (D) result in or require the creation or imposition of any
Lien upon any of the property of the Borrower or any of its Subsidiaries other
than the Liens granted pursuant to this Agreement and the other Loan Documents;
and do not require the consent, authorization by or approval of or notice to or
filing or registration with any Governmental Authority. This Agreement has been
duly executed and delivered by the Borrower. This Agreement and each of the
other Loan Documents to which the Borrower is a party, on and after the
Effective Date, will be legal, valid and binding obligations of the Borrower,
enforceable against the Borrower, in accordance with their respective terms.
Section 3.3. Statements Made. The information that has been delivered in writing
by the Borrower to any of the Secured Parties in connection with any Loan
Document, and any financial statement delivered pursuant hereto or thereto
(other than to the extent that any such statements constitute projections),
contain no untrue statement of a material fact and do not omit to state a
material fact necessary to make such statements not misleading; and, to the
extent that any such information constitutes projections, such projections were
prepared in good faith on the basis of assumptions, methods, data, tests and
information believed by the Borrower to be reasonable at the time such
projections were furnished.
Section 3.4. Financial Statements. The Borrower has furnished the Lenders with
copies of (i) the audited consolidated financial statements of the Borrower and
its Consolidated Subsidiaries for the fiscal year ended November 30, 1998,
accompanied by an unqualified opinion of KPMG Peat Marwick LLP and (ii) the
unaudited consolidated financial statements of the Borrower and its Consolidated
Subsidiaries for the nine month period ended August 30, 1999. Such financial
statements present fairly the financial condition, the results of operations and
cash flows of the Borrower and its Consolidated Subsidiaries on a consolidated
basis as of such dates and for such periods; such balance sheets and the notes
thereto disclose all liabilities, direct or contingent, of the Borrower and its
Consolidated Subsidiaries as of the dates thereof required to be disclosed by
GAAP, and such financial statements were prepared in a manner consistent with
GAAP, subject (in the case of such nine month statements) to normal year end
adjustments. No Material Adverse Effect has occurred since November 28, 1998.
Section 3.5. Ownership. As of the date hereof, Lumberjack, which is wholly-owned
by the Borrower, is the only direct or indirect Subsidiary of the Borrower, is
inactive and has no significant assets.
Section 3.6. Liens. Except for Liens existing on the Effective Date as reflected
on Schedule 3.6, there are no Liens of any nature whatsoever on any assets of
the Borrower other than: (i) Liens granted pursuant to the Existing Agreements;
(ii) Permitted Liens; and (iii) Liens granted
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under the Loan Documents in favor of the Secured Parties. Neither the Borrower
nor its Subsidiaries is a party to any contract, agreement, lease or instrument
the performance of which, either unconditionally or upon the happening of an
event, will result in or require the creation of a Lien on any CIBC Collateral
or Available Property or otherwise result in a violation of this Agreement other
than the Liens granted to the Secured Parties as provided for in this Agreement
and the other Loan Documents.
Section 3.7. Compliance with Law. Neither the Borrower nor its Subsidiaries is,
to the best of the Borrower's knowledge, in violation of any Requirement of Law,
or in default with respect to any judgment, writ, injunction or decree of any
Governmental Authority the violation of which, or a default with respect to
which, would have a Material Adverse Effect.
Section 3.8. Insurance. All policies of insurance of any kind or nature owned by
or issued to the Borrower, including, without limitation, insurance policies
with respect to life, fire, theft, product liability, business interruption,
public liability, property damage, other casualty, employee fidelity, workers'
compensation, employee health and welfare, title, property and liability
insurance, are in full force and effect and are of a nature and provide such
coverage as is sufficient and as is customarily carried by companies of the size
and character of the Borrower.
Section 3.9. Litigation. Except as set forth on Schedule 3.9, there are no
unstayed actions, suits or proceedings pending or, to the knowledge of the
Borrower, threatened against or affecting the Borrower, its Subsidiaries or any
of its properties, before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, which is
reasonably likely to be determined adversely to the Borrower and, if so
determined adversely to the Borrower, would have a Material Adverse Effect.
Section 3.10. Investment Company Act, etc. Neither the Borrower nor any of its
Subsidiaries will be after giving effect to the transactions contemplated hereby
(x) an "investment company" or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended
or (y) subject to regulation under the Public Utility Holding Company Act of
1935, the Federal Power Act or any foreign, federal or local statute or
regulation limiting its ability to incur indebtedness for money borrowed or
guarantee such indebtedness as contemplated hereby or by any of the other Loan
Documents.
Section 3.11. Tax Returns and Payments. The Borrower and each of its
Subsidiaries have filed all federal income tax returns and all other material
tax returns and reports, domestic and foreign, required to be filed by it and
have paid all material taxes, assessments, fees and other governmental charges
payable by it which have become due, other than those not yet delinquent. The
Borrower and each of its Subsidiaries have paid, or have provided adequate
reserves for the payment of, all material federal, state and foreign income
taxes applicable for all prior fiscal years and for the current fiscal year to
the date hereof. There is no proposed tax assessment against the Borrower or any
of its Subsidiaries which could, if the assessment were made, reasonably be
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expected to have a Material Adverse Effect. The last closed tax year of the
Borrower and its Consolidated Subsidiaries is the fiscal year ended November 27,
1993.
Section 3.12. ERISA.
(a) No ERISA Event has occurred or is expected to occur with respect to any
Plan in any fiscal year of the Borrower that would result in any liability of
the Borrower or any Subsidiary in excess, together with the amount of all other
liabilities of the Borrower and its Subsidiaries which would result from all
other ERISA Events that have occurred or are expected to occur with respect to
Plans during such fiscal year, of $3,000,000.
(b) Schedule B (Actuarial Information to the annual report (Form 5500
series)) most recently completed with respect to each Plan, copies of which have
been filed with the Internal Revenue Service and delivered to the Agent, is
complete and accurate in all material respects and to the best knowledge of the
Borrower represents a reasonable estimate of the funding status and financial
condition of such Plan as of the date of such report, and, since the date of
such Schedule B, to the best knowledge of the Borrower there has been no change
in such funding status or financial condition that could reasonably be expected
to have a Material Adverse Effect.
(c) Neither the Borrower, nor any Subsidiary nor any ERISA Affiliate of
either of them has incurred, or is expected to incur, any Withdrawal Liability
to Multiemployer Plans in excess in any fiscal year of the Borrower, of
$3,000,000 in the aggregate for the Borrower, its Subsidiaries and the ERISA
Affiliates of any of them.
(d) Neither the Borrower, nor any Subsidiary nor any ERISA Affiliate of
either of them has received any notification that any Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title IV of ERISA,
and to the best knowledge of the Borrower, no Multiemployer Plan is expected to
be in reorganization or to be terminated within the meaning of Title IV of
ERISA, in either case where all such reorganization or terminations would result
in any liability in any fiscal year of the Borrower in excess of $3,000,000 in
the aggregate for the Borrower, its Subsidiaries and the ERISA Affiliates of any
of them.
(e) With respect to each plan of the Borrower or any Subsidiary which is an
"employee pension benefit plan" within the meaning of Section 3(2) of ERISA and
which is intended to qualify under Section 401 of the Code, a favorable
determination letter has been received from the Internal Revenue Service stating
that such plan so qualifies, and nothing has occurred since the date of the
issuance of such determination letter which would cause such plan to cease to
qualify under Section 401 of the Code.
(f) None of the transactions contemplated by the Loan Documents or by any
plan of the Borrower or any Subsidiary which is an "employee pension benefit
plan" within the meaning
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of Section 3(2) of ERISA constitutes a prohibited transaction as such term is
defined in Section 406 of ERISA or Section 4975 of the Code.
(g) Neither the Borrower, nor any Subsidiary, nor any ERISA Affiliate of
any of them, nor any fiduciary of any plan of the Borrower or any Subsidiary
which is an "employee pension benefit plan" within the meaning of Section 3(2)
of ERISA, has engaged in any transaction in violation of Section 404 of ERISA,
which has resulted or could reasonably be expected to result in any liability in
excess of $3,000,000 in the aggregate for the Borrower, its Subsidiaries and the
ERISA Affiliates of any of them.
(h) Neither the Borrower, nor any Subsidiary, nor any ERISA Affiliate of
any of them, nor any plan of the Borrower or any Subsidiary which is an
"employee benefit plan" within the meaning of Section 3(3) of ERISA or fiduciary
thereof, is a party to any litigation relating to or seeking benefits from any
such plan, nor does there exist one or more facts or events which could form the
basis for any such litigation, where such litigation could reasonably be
expected to result in any liability in excess of $3,000,000 in the aggregate for
the Borrower, its Subsidiaries and the ERISA Affiliates of any of them.
(i) No event has occurred, in connection with which the Borrower, any
Subsidiary or any ERISA Affiliate of any of them, could be subject to any
material liability under any statute, regulation or governmental order relating
to any plan of the Borrower or any Subsidiary which is an "employee benefit
plan" within the meaning of Section 3(3) of ERISA or pursuant to any obligation
of the Borrower, any Subsidiary or any ERISA Affiliate to indemnify any Person
against any liability incurred under any such statute, regulation or order as
they relate to any such plan, which could reasonably be expected to result in
any liability in excess of $3,000,000 in the aggregate for the Borrower, its
Subsidiaries and the ERISA Affiliates of any of them.
(j) Except as set forth in Schedule 3.12 or as disclosed in the Borrower's
1998 Annual Report, neither the Borrower, nor any Subsidiary, nor any ERISA
Affiliate of any of them, nor any "employee benefit plan" within the meaning of
Section 3(3) of ERISA maintained by the Borrower, any Subsidiary or any ERISA
Affiliate of any of them has any present or future obligation to make any
payment to or with respect to any present or former employee, officer, director
or agent of the Borrower, any Subsidiary, or any ERISA Affiliate of any of them
pursuant to any retiree medical benefit plan, or other retiree welfare benefit
plan (and the aggregate liability of the Borrower, its Subsidiaries and the
ERISA Affiliates of any of them in respect of all obligations disclosed on
Schedule 3.12 or in the Borrower's 1998 Annual Report does not exceed
$22,000,000), and no condition exists which would prevent the Borrower, any
Subsidiary or any ERISA Affiliate of any of them from amending or terminating
any such benefit plan or "employee benefit plan" within the meaning of Section
3(3) of ERISA.
(k) Each welfare benefit plan which covers or has covered present or former
employees, officers, directors or agents of the Borrower, any Subsidiary, or any
ERISA Affiliate of
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any of them and which is a "group health plan" as defined in Section 607(1) of
ERISA, has been operated at all times in compliance with provisions of Part 6 of
Title I of ERISA and Sections 162(k) and 4980B of the Code.
Section 3.13. Good Title to Properties. Each of the Borrower and its
Subsidiaries has good and marketable title to substantially all its properties
and assets, including, without limitation, the CIBC Collateral, subject to no
Liens, except such as would be permitted under Section 6.1.
Section 3.14. Labor Matters. Neither the Borrower nor any Subsidiary has
experienced any strike, labor dispute, slowdown or work stoppage due to labor
disagreements which could reasonably be expected to have a Material Adverse
Effect, and to the best knowledge of the Borrower, there is no such strike,
dispute, slowdown or work stoppage threatened against the Borrower or any
Subsidiary.
Section 3.15. Environmental Matters. To the best of the Borrower's knowledge
after due inquiry, except as set forth on Schedule 3.15:
(a) the Property does not contain any Hazardous Substance in amounts or
concentrations which (i) constitute a violation of, or (ii) could reasonably
give rise to liability under, any Environmental Law except in either case
insofar as such violation or liability, or any aggregation thereof, could not
reasonably be expected to result in a Material Adverse Effect;
(b) the Property and all operations at the Property and operations of
Borrower and its Subsidiaries are in compliance, and have in the last three
years been in compliance, in all material respects with all applicable
Environmental Laws, and there is no contamination at or under the Property, or
violation of any Environmental Law with respect to the Property, the operations
at the Property or the operations of the Borrower and its Subsidiaries, which
could reasonably be expected to result in a Material Adverse Effect;
(c) neither the Borrower nor any of its Subsidiaries has received any
notice of violation, alleged violation, noncompliance, liability or potential
liability regarding environmental matters or compliance with any Environmental
Law with regard to any of the Property, the operations at the Property or the
Borrower's or any of its Subsidiaries' operations, nor does the Borrower or such
Subsidiary have knowledge or reason to believe that any such notice will be
received or is being threatened except insofar as such notice or threatened
notice, or any aggregation thereof, does not involve a matter or matters that
could reasonably be expected to result in a Material Adverse Effect;
(d) Hazardous Substances have not been transported or disposed of from any
of the Property by the Borrower or any of its Subsidiaries in violation of, or
in a manner or to a location which could reasonably give rise to liability
under, any Environmental Law, nor have any Hazardous Substances been generated,
treated, stored (other than materials stored in the normal course of its
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retail business in accordance with all applicable laws) or disposed of at, on or
under any of the Property in violation of, or in a manner that could reasonably
give rise to liability under, any applicable Environmental Law except insofar as
any such violation or liability referred to above, or any aggregation thereof,
could not reasonably be expected to result in a Material Adverse Effect;
(e) no judicial proceedings or governmental or administrative action is
pending or, to the knowledge of the Borrower after due inquiry, threatened,
under any Environmental Law to which the Borrower is or will be named as a party
with respect to the Property, the operations at the Property or the operations
of the Borrower or any of its Subsidiaries, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law
with respect to the Property or such operations except insofar as such
proceeding, action, decree, order or other requirement, or any aggregation
thereof, could not reasonably be expected to result in a Material Adverse
Effect;
(f) there has been no Release or threat of Release of any Hazardous
Substance at, to, on, in, under or from the Property, or arising from or related
to the operations of the Property or the operations of the Borrower or any of
its Subsidiaries in connection with the Property or otherwise in connection with
such operations in violation of or in amounts or in a manner that could
reasonably give rise to liability under any Environmental Law, except insofar as
any such violation or liability referred to above, or any aggregation thereof,
could not reasonably be expected to result in a Material Adverse Effect;
(g) No Property is a current, or to the knowledge of the Borrower or any of
its Subsidiaries, proposed Environmental Clean-up Site;
(h) There are no (1) underground storage tanks (active or abandoned), (2)
polychlorinated biphenyl containing equipment, or (3) asbestos-containing
material at any Property; and
(i) The Borrower and its Subsidiaries hold all Environmental Permits
required for their respective operations and the Borrower and its Subsidiaries
are in compliance with the terms and conditions of such Environmental Permits,
except to the extent the failure to hold or comply with such Environmental
Permits could not reasonably be expected to result in a Material Adverse Effect.
Section 3.16. Location and Divisions of the Borrower. As of the Effective Date,
all of the Borrower's stores, warehouses, distribution centers, offices,
headquarters and any other operating and organizational facilities and premises
are listed on Schedule 3.16. The Borrower uses each of the division names set
forth on Schedule 3.16 only in the states listed below each such name, and the
Borrower does not do business under any names other than its own and the names
of such divisions.
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Section 3.17. Solvency. On and as of the Effective Date, after giving effect to
the transactions contemplated herein and the transactions contemplated in the
Congress Facility Agreement (including the loans incurred or to be incurred by
the Borrower and the Liens created, or to be created, in connection therewith):
(a) the Borrower has no reason to believe that any final judgments against the
Borrower or any affected Subsidiary in actions for money damages with respect to
pending or threatened litigation will be rendered at a time when, or in an
amount such that, the Borrower or such affected Subsidiary will be unable to
satisfy any such judgments promptly in accordance with their terms (taking into
account the maximum reasonable amount of such judgments in any such actions and
the earliest reasonable time at which such judgments might be rendered) and the
cash available to the Borrower and its Subsidiaries, after taking into account
all other anticipated uses of the cash of the Borrower and its Subsidiaries
(including the payments on or in respect of debt referred to in clause (c) of
this Section), is anticipated to be sufficient to pay all such judgments
promptly in accordance with their terms; (b) the sum of the present fair
saleable value of the assets of the Borrower and its Subsidiaries will exceed
the probable liability of the Borrower and its Subsidiaries on their respective
debts; (c) neither the Borrower nor any of its Subsidiaries will have incurred
or intends to, or believes that it will, incur debts beyond its ability to pay
such debts as such debts mature (taking into account the timing and amounts of
cash to be received by the Borrower and its Subsidiaries from any source, and of
amounts to be payable on or in respect of debts of the Borrower and its
Subsidiaries and the amounts referred to in clause (a) of this Section) and the
cash available to the Borrower and its Subsidiaries, after taking into account
all other anticipated uses of the cash of the Borrower and its Subsidiaries, is
anticipated to be sufficient to pay all such amounts on or in respect of debts
of the Borrower and its Subsidiaries, when such amounts are required to be paid;
and (d) the Borrower and each of its Subsidiaries will have sufficient capital
with which to conduct its present and proposed business and the property of the
Borrower and each of its Subsidiaries does not constitute unreasonably small
capital with which to conduct its present or proposed business. For purposes of
this Section, "debt" means any liability on a claim, and "claim" means (i) any
right to payment whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured, or (ii) any right to an equitable remedy
for breach of performance if such breach gives rise to a payment, whether or not
such right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured. With respect to clauses (b) and (d) of this Section, with respect to
the Borrower, such representations and warranties are made to the best of the
knowledge of the Borrower, except that such representations and warranties are
made without qualification to the extent that the untruth or inaccuracy of any
such representation or warranty would result in a Material Adverse Effect.
Section 3.18. Trademarks, Patents, etc. Each of the Borrower and its
Subsidiaries possesses all of the trademarks, copyrights, patents, licenses, or
rights in any thereof, adequate in all material respects for the conduct of its
business as now conducted and presently proposed to be conducted, without
conflict with the rights or, to the best knowledge of the Borrower, any
presently claimed rights of others.
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SECTION 4. CONDITIONS TO EFFECTIVENESS AND EXTENSIONS OF CREDIT
Section 4.1. Conditions Precedent. The effectiveness of the amendment and
restatement of the Borrower's obligations arising under the Existing Credit
Agreement is subject to the following conditions precedent, each of which shall
have been satisfied or waived by the Agent (except as otherwise provided in this
Section):
(a) Supporting Documents. The Agent shall have received:
(i) a copy of the Borrower's certificate of incorporation, certified
as of a recent date by the Secretary of State of Delaware;
(ii) a certificate of the Secretary of State of Delaware, dated as
of a recent date, as to the good standing of the Borrower and as to the
charter documents on file in the office of the Secretary of State;
(iii)a certificate of the Secretary or an Assistant Secretary of the
Borrower, dated as of a recent date, delivered as part of the Closing
Certificate referred to in clause (iv) below and certifying (A) that
attached thereto is a true and complete copy of the by-laws of the Borrower
as in effect on the date of such certification, (B) that attached thereto
is a true and complete copy of resolutions adopted by the Board of
Directors of the Borrower authorizing (u) the entry into the Congress
Financial Facility and the transactions contemplated thereby, (v) the
amendment and restatement of the Existing Credit Agreement on the terms set
forth herein, (w) the repayment of the Existing Revolving Loans and any
accrued interest, fees, costs and expenses relating thereto and any other
amounts owing pursuant to the Existing Credit Agreement, (x) the repayment
of $92,000,000 of Existing Term Loans, (y) the issuance of the Back-to-Back
Letters of Credit and (z) the execution, delivery and performance in
accordance with their respective terms of this Agreement, the other Loan
Documents and any other documents required or contemplated hereunder or
thereunder, (C) that the certificate of incorporation of the Borrower has
not been amended since the date of the certificate of the Secretary of
State furnished pursuant to clause (i) above and (D) as to the incumbency
and specimen signature of each officer of the Borrower executing this
Agreement, and the other Loan Documents or any other document delivered by
it in connection herewith or therewith (such certificate to contain a
certification by another officer of the Borrower as to the incumbency and
signature of the officer signing the certificate referred to in this clause
(iii)); and
(iv) receipt by the Agent of a closing certificate signed by an
executive officer of the Borrower, substantially in the form of Exhibit F
(the "Closing
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Certificate"), with appropriate insertions and attachments satisfactory in
form and substance to the Agent.
(b) Agreement. On or before the Effective Date, the Agent shall have
received executed counterparts of this Agreement from each of the parties
hereto.
(c) Congress Facility. On or before the Effective Date, (i) all
conditions precedent to the effectiveness of the Congress Facility Agreement
shall have occurred or been waived by the applicable party, (ii) Congress
Financial shall have funded the loans pursuant thereto, and (iii) the Agent
shall have received a duly executed copy of the Congress Facility Agreement
which shall be in form and substance satisfactory to the Agent and the Majority
Term Lenders.
(d) Payment Letter and Payment Amount. On or before the Effective
Date, the Agent shall have received (i) an executed Payment Letter from the
Borrower which shall be in form and substance satisfactory to the Agent and
(ii) the payment of the Payment Amount set forth therein in immediately
available and good funds.
(e) Existing Letters of Credit. On or before the Effective Date, the
Back-to-Back Letters of Credit shall have been issued to the relevant Fronting
Banks.
(f) Security and Pledge Agreement. The Borrower shall have duly
executed and delivered to the Agent, for its benefit and the benefit of the
other Secured Parties, a Second Amended and Restated Security and Pledge
Agreement in substantially the form of Exhibit A (as amended, amended
and restated, supplemented or otherwise modified from time to time, the
"Security and Pledge Agreement").
(g) Financing Statements. The Agent shall have received copies of
executed UCC-1 financing statements that will be filed by Congress Financial.
(h) Vehicles. To the extent not previously provided, the Agent shall
have received original certificates of title for Vehicles pledged to the
Agent for its benefit and the benefit of the other Secured Parties with the
Lien of the Agent noted thereon or accompanied by documentation required to
effect the same.
(i) Opinion of Counsel to the Borrower. The Secured Parties shall have
received the favorable written opinion of counsel to the Borrower reasonably
acceptable to the Agent, dated the Effective Date, substantially in the form of
Exhibit D.
(j) Payment of Other Amounts. The Borrower shall have paid all
accrued and unpaid interest, fees and other amounts owing pursuant to or in
connection with the Existing Credit Agreement and in connection with the
execution of this Agreement including, but not limited to, all out-of-pocket
expenses incurred by the Agent and the Lenders, including (without limitation)
the
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reasonable fees and disbursements of Xxxxxx, Xxxxx & Xxxxxxx LLP ("ML&B"),
counsel for the Agent and E&Y Restructuring LLC, financial advisors to ML&B.
(k) Corporate and Judicial Proceedings. All corporate and judicial
proceedings and all instruments and agreements in connection with the
transactions among the Borrower, the Agent and the Lenders contemplated by
this Agreement shall be reasonably satisfactory in form and substance to
the Agent, and the Agent shall have received all information and copies of
all documents and papers, including records of corporate and judicial
proceedings, which the Agent may have reasonably requested in connection
therewith, such documents and papers where appropriate to be certified by
proper corporate, governmental or judicial authorities.
(l) Compliance with Laws. The Borrower shall have granted the Agent
access to and the right to inspect all reports, audits and other internal
information of the Borrower relating to environmental matters, an any third
party verification of certain matters relating to compliance with Environmental
Laws requested by the Agent, and the Agent shall be reasonably satisfied that
the Borrower and its Subsidiaries are in compliance in all material respects
with all applicable Environmental Laws and be satisfied with the costs of
maintaining such compliance.
(m) No Material Adverse Change. There shall not have occurred since
August 30, 1999, a material adverse change, or development or event involving a
prospective change, which, in the reasonable judgment of the Existing Majority
Term Lenders have a Material Adverse Effect or could materially adversely affect
the rights and remedies of the Agent or any of the other Secured Parties under
the Loan Documents, and none of the Agent or any of the other Secured Parties
shall have become aware of any theretofore previously undisclosed materially
adverse information with respect to the matters described in this clause (m).
(n) Absence of Litigation. There shall be no actions, suits or
proceedings by any Governmental Authority or other Person or investigation
by any Governmental Authority or other Person pending or known by the Borrower
to be threatened with respect to the Borrower or any of its Subsidiaries or
(relating to the transactions contemplated hereunder) the Agent or any of the
other Secured Parties which could reasonably be expected to have a Material
Adverse Effect; there shall be no judgment, order, injunction or other restraint
prohibiting any of the transactions contemplated by any of the Loan Documents.
(o) Information. The Agent shall have received such information
(financial or otherwise) as may be reasonably requested by the Agent.
(p) No Event of Default. No Default or Event of Default (each as
defined in the Existing Credit Agreement) which has not properly been waived
in writing shall have occurred and then be continuing.
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(q) Representations and Warranties. All representations and warranties
contained in this Agreement and the other Loan Documents or otherwise made in
writing in connection herewith or therewith shall be true and correct in all
material respects.
(r) Consents. The Borrower shall have obtained all consents and waivers from
any Governmental Authority or other Person necessary for the execution, delivery
and performance of this Agreement and any other document or transaction
contemplated by this Agreement.
(s) Closing Documents. The Agent shall have received all documents required
by this Agreement reasonably satisfactory in form and substance to the Agent and
its counsel.
SECTION 5. AFFIRMATIVE COVENANTS
From the date hereof and for so long as any Obligation of the Borrower
shall remain outstanding or unpaid under this Agreement, the Borrower will, and
it will cause each Subsidiary to:
Section 5.1. Financial Statements, Reports, etc. Deliver to the Agent and each
of the Lenders:
(a) as soon as available and in any event within 90 days after the end of
each fiscal year, the consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such fiscal year and related
consolidated statements of income and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous year
(unless, in accordance with GAAP, such comparative financial statements are not
prepared), the consolidated statement of the Borrower and its Consolidated
Subsidiaries to be audited for the Borrower by independent public accountants of
recognized national standing acceptable to the Majority Lenders an accompanied
by an opinion of such accountants (which shall not be qualified in any material
respect);
(b)as soon as available and in any event within 45 days after the end of each
of the first three fiscal quarters and within 90 days after the end of the
fourth fiscal quarter of each fiscal year of the Borrower, the consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of
such quarter and related consolidated statements of income and cash flows for
such fiscal quarter, setting forth in each case in comparative form the figures
for the corresponding quarter and the corresponding portion of the previous
fiscal year, together with a comparison of such results to the relevant portion
of the Annual Budget, each certified by a Financial Officer as fairly presenting
the financial condition and results of operations of the Borrower and its
Consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments;
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(c)concurrently with any delivery of financial statements under clauses(a) or
(b) above, (i) a certificate of a Financial Officer, substantially in the form
of Exhibit G hereto, certifying such statements stating that no Default or Event
of Default has occurred, or, if such Default or Event of Default has occurred,
specifying the nature, the period of existence and extent thereof and any
corrective action taken or proposed to be taken with respect thereto and (ii) a
certificate of such accountants accompanying the audited consolidated financial
statements delivered under (a) above certifying that, in the course of the
regular audit of the business of the Borrower, such accountants have obtained no
knowledge that an Event of Default has occurred and is continuing, or if, in the
opinion of such accountants, an Event of Default has occurred and is continuing,
specifying the nature thereof and all relevant facts with respect thereto;
(d)within 15 Business Days of the end of each fiscal month(or, in the case of
the last fiscal month of the Borrower in each fiscal year, within 45 days),
commencing with the fiscal month in which the Effective Date has occurred, a
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries,
related statement of income and cash flows showing the financial condition of
the Borrower and its Consolidated Subsidiaries and the results of operations as
of the close of such fiscal month and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures for the
corresponding month and the corresponding portion of the Borrower's previous
fiscal year, together with a comparison of such results to the relevant portion
of the Annual Budget;
(e) as soon as practicable, and in any event within 45 days of the Effective
Date, a pro forma statement of the Borrower's financial condition as of the
Effective Date in form, scope and detail reasonably satisfactory to the Agent;
(f) within 45 days after the commencement of each fiscal year, a forecast of
the financial condition and results of operations of the Borrower and its
Consolidated Subsidiaries, by month, for the twelve fiscal months commencing
with the first month of such fiscal year (the "Annual Budget"), and not later
than 45 days after the end of each of the first three quarters of each fiscal
year of the Borrower, a narrative discussion by management of the Borrower of
the financial condition and results of operations of the Borrower and its
Consolidated Subsidiaries for such period, together with a reforecast for the
balance of such fiscal year and quarterly balance sheet, income statement and
cash flow projections for such period, in all instances in form, scope and
detail satisfactory to the Agent;
(g) promptly upon request therefor by the Agent, copies of all reports
submitted by independent public accountants to the Borrower in connection with
each annual, interim or special audit of the financial statements of the
Borrower and its Consolidated Subsidiaries, including, without limitation,
any comment letters submitted by such accountants to management in connection
with their annual audit;
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(h) forthwith upon becoming aware of (i) any litigation or other proceeding
which could reasonably be expected to have a Material Adverse Effect or (ii) any
default with respect to any obligation of the Borrower under any agreement,
instrument, or other undertaking to which the Borrower or any of its
Subsidiaries is a party or by which it or any of its properties is bound or any
event or condition which could reasonably be expected to have such a material
adverse effect, notice thereof;
(i) promptly upon becoming aware of any Material Adverse Effect since the
Effective Date, notice thereof;
(j) (i) promptly and in any event within fifteen (15) days after the Borrower
knows or has reason to know that any ERISA Event has occurred, a statement of
the chief financial officer of the Borrower describing such ERISA Event and the
action, if any, which the Borrower, any Subsidiary or any ERISA Affiliate of
either of them proposes to take with respect thereto;
(ii) promptly and in any event within ten (10) Business Days after receipt
thereof by the Borrower or any Subsidiary or any ERISA Affiliate of either of
them,copies of each notice from the PBGC stating its intention to terminate any
Plan or to have a trustee appointed to administer any Plan; and
(iii) promptly and in any event within ten (10) Business Days after
receipt thereof by the Borrower or any Subsidiary or any ERISA Affiliate of
either of them from the sponsor of a Multiemployer Plan, a copy of each
notice concerning (1) the imposition of Withdrawal Liability by a
Multiemployer Plan, (2) the reorganization or termination, within the meaning of
Title IV of ERISA, of any Multiemployer Plan or (3) the amount of liability
incurred, or which may be incurred, by the Borrower or any Subsidiary or any
ERISA Affiliate of either of them in connection with any event described in
clause (1) or (2) above; (11) promptly upon the formation of any Subsidiary,
notice thereof;
(k) promptly upon the formation of any Subsidiary, notice thereof;
(l) promptly upon the release of any Liens or the satisfaction or discharge of
all or a portion of the Liens securing the Fortress Real Estate Financing or
Liens granted to any other lenders, notice thereof;
(m) promptly upon the merger of any Subsidiary into the Borrower, notice
thereof;
(n) promptly upon the opening of any store or other retail location, notice
thereof; and, to the extent any Equipment or Vehicles which constitute CIBC
Collateral and any replacement of, or substitution for, any of the foregoing is
moved or transferred to a location or jurisdiction in which a UCC-1 Financing
Statement or Vehicle title certificate with respect to such CIBC Collateral has
not been delivered to the Agent, notice thereof and promptly deliver (i)
executed UCC-1 Financing Statements on forms then provided by the Agent to the
Borrower and/or (ii) new Vehicle
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certificates of title reflecting the Lien of the Agent for its benefit and
the benefit of the other Secured Parties noted thereon accompanied by
documentation required to effect the same.
(o) within five (5) Business Days after any amendment, modification, supplement
to or waiver of any provisions of the Congress Facility Documents, the Fortress
Loan Documents, the Household Program Documents, or any other material credit
arrangements, notice thereof, together with a copy of each such fully executed
amendment, modification, supplement or waiver;
(p) without limiting any of the Borrower's other obligations to give notice
under the Loan Documents, within fifteen (15) days of the end of each fiscal
quarter, furnish to the Agent lists of (i) all Vehicles acquired by the Borrower
or any Subsidiary during such quarter, (ii) all Equipment and Vehicles which
replaced any Equipment or Vehicles which constituted CIBC Collateral or which
was purchased with the sale proceeds (or insurance proceeds) of such Equipment
or Vehicles and (iii) all property which became Available Property during such
quarter, setting forth in each case the date of acquisition thereof, all
certified by a Financial Officer of the Borrower;
(q) promptly, upon the mailing thereof to the shareholders of the Borrower
generally, copies of all financial statements, reports and proxy statements so
mailed;
(r) without limiting any of the Borrower's other obligations to give notice
under the Loan Documents, within fifteen (15) days of the end of each fiscal
quarter, furnish to the Agent a schedule (i) setting forth all Net Cash Proceeds
received during such fiscal quarter with respect to CIBC Collateral and (ii)
confirming the existence of the credit card and receivables program required to
be maintained by the Borrower pursuant to Section 5.8, certified by a Financial
Officer of the Borrower;
(s) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of the Borrower or its
Subsidiaries, or compliance with the terms of any material loan or financing
agreements as the Agent or any Lender may reasonably request;
(t) promptly (and in no event more than five (5) Business Days after the
Borrower or any of its Subsidiaries becomes aware or is otherwise informed of
any of the following events), written notice and copies of any related material
written communications or notices, of the following:
(i) the Borrower, any of its Subsidiaries or any tenant, occupant
or operator of any Property receives written or oral notice of
any claim, complaint, charge or notice of violation or potential
violation of or liability under any Environmental Law or request
to conduct any investigation, remediation, cleanup or monitoring
of any Hazardous Substance at any Property, in each case which
could reasonably be expected to result in a Material Adverse
Effect;
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(ii) a Release or threatened Release of a Hazardous Substance at,
to, on, under, or about any Property in amounts that may be
required to be reported, remediated, investigated, cleaned up,
monitored or responded to under applicable Environmental Law,
which could reasonably be expected to result in a Material
Adverse Effect;
(iii) the Borrower or any of its Subsidiaries may be liable for
any costs of investigating, remediating, cleaning up, monitoring
or responding to a Release or threatened Release of a Hazardous
Substance which could reasonably be expected to result in a
Material Adverse Effect; or
(iv) any Property or portion of any Property may be subject to a
Lien under any Environmental Law.
Section 5.2. Conduct of Business; Maintenance of Existence. Continue to engage
in business of the same general type as now conducted by the Borrower and its
Subsidiaries, and will preserve, renew and keep in full force and effect, and,
except as permitted by Section 6.3(e), will cause each Subsidiary to preserve,
renew and keep in full force and effect, its respective corporate existence in
its respective jurisdiction of incorporation as of the Effective Date and its
respective rights, privileges and franchises except for such rights, privileges
and franchises when the failure of which to preserve, renew and keep in full
force and effect could not reasonably be expected to have a Material Adverse
Effect.
Section 5.3. Maintenance of Property; Insurance.
(a) Keep all material property useful and necessary in its business in good
working order and condition, ordinary wear and tear excepted.
(b) Keep its material properties (including, without limitation, all Property)
insured at all times with financially sound and reputable insurance companies,
against such risks as is customary for companies of the same or similar size in
the same or similar businesses; provided, that such insurance shall (i) insure
the property (including without limitation all Property which is CIBC
Collateral) of the Borrower and its Subsidiaries (other than motor vehicles)
against all risk of loss or damage including, without limitation, loss by fire,
explosion, theft and such other casualties as may be reasonably satisfactory to
the Agent, but in no event in an amount less than the replacement cost value
thereof, and (ii) insure the Borrower and its Subsidiaries, and the Agent and
the other Secured Parties against comprehensive general and automobile liability
in an amount not less than $1,000,000 per occurrence under primary insurance
policies, with not less than $45,000,000 per occurrence coverage under umbrella
insurance policies for personal injury, bodily injury and property damage
relating to the property and operations of the Borrower and its Subsidiaries,
such policies to be in such form and amounts and having such coverage as may be
reasonably satisfactory to the Agent. All such insurance with respect to CIBC
Collateral shall, within 20 days after
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the Effective Date (i) contain a breach of warranty clause in favor of the Agent
and the other Secured Parties in all loss or damage insurance policies and have
a severability of interest clause in all liability insurance policies, (ii)
provide that no cancellation, material reduction in amount or material change in
coverage thereof shall be effective until at least 30 days after written notice
to the Agent thereof, (iii) name the Agent for the benefit of the Secured
Parties as loss payee for physical damage insurance with respect to property
which is CIBC Collateral as to which a Lien has been granted to the Agent, with
the right to adjust the same (provided, that with respect to property to which a
Lien permitted hereunder has been granted to another creditor, such other
creditor may also be named as loss payee, with payment to be made as their
interests may appear and name the Agent and the other Secured Parties as
additional insureds for liability insurance, with the Agent having the right to
adjust the same), (iv) state that neither the Agent nor any of the other Secured
Parties shall be responsible for premiums, commissions, club calls, assessments
or advances, (v) contain a waiver of all rights of set-off, counterclaim,
deduction or subrogation against the Agent and the other Secured Parties and
(vi) be reasonably satisfactory in all other respects (including deductibles) to
the Agent.
(c) Furnish to the Agent, on or prior to the Effective Date, a schedule, a copy
of which is annexed as Schedule 5.3, describing all insurance maintained by the
Borrower which is required under this Section 5.3, which schedule shall set
forth, for each insurance policy, the policy number, the scope of coverage, the
policy limits and deductibles, the insurer (and reinsurers, if applicable) and
the expiration date.
(d) Furnish to the Agent, to the extent not previously delivered, original
certificates of insurance complying with the requirements of this Section set
forth above and containing signatures of duly authorized representatives of the
insurer, at all times prior to policy termination, cessation or cancellation.
(e) Maintain such other insurance or self insurance as may be required by law
or as the Agent may reasonably request.
Section 5.4. Compliance with Laws. Comply in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
Governmental Authorities (including, without limitation, ERISA) except where the
necessity of compliance therewith is contested in good faith by appropriate
proceedings, and the Borrower or such Subsidiary have set aside on its books
adequate reserves (determined in accordance with GAAP) with respect thereto or
where the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.
Section 5.5. Obligations and Taxes. Pay all its material obligations promptly
and in accordance with their terms and pay and discharge promptly all material
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits or in respect of its property before the same shall become
in default, as well as all material lawful claims for labor, materials and
supplies or otherwise which, if unpaid, might become a Lien or charge upon such
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properties or any part thereof; provided, that the Borrower and its Subsidiaries
shall not be required to pay and discharge or to cause to be paid and discharged
any such tax, assessment, charge, levy or claim so long as the validity or
amount thereof shall be contested in good faith by appropriate proceedings (if
the Borrower or such Subsidiary shall have established on its books adequate
reserves therefor).
Section 5.6. Notice of Event of Default, etc. Promptly give to the Agent notice
in writing of any Default or Event of Default hereunder or under any of the
other Loan Documents.
Section 5.7. Access to Books and Records. Maintain or cause to be maintained at
all times true and complete books and records of the financial operations of the
Borrower and its Subsidiaries; and provide the Agent and its representatives
access to all such books and records during regular business hours, in order
that the Agent may examine and make abstracts from such books, accounts, records
and other papers for the purpose of verifying the accuracy of the various
reports delivered by the Borrower to the Agent or the Lenders pursuant to this
Agreement or for otherwise ascertaining compliance with this Agreement; and at
any reasonable time and from time to time during regular business hours, upon
reasonable notice, permit the Agent and any agents or representatives
(including, without limitation, appraisers) thereof to visit the properties of
the Borrower and its Subsidiaries and to conduct examinations of and to monitor
the CIBC Collateral.
Section 5.8. Customer Charge Sales. Continue to maintain a "Project Card" and
commercial credit receivables sales and administration program with the Credit
Card Lender pursuant to the Household Credit Program Documents or a similar
program (it being understood that a program shall not be deemed to be dissimilar
solely by virtue of the fact that the Borrower shall act as the administrator or
"servicer" of the receivables thereunder) with another Person; provided,
however, that the Borrower shall promptly give notice to the Agent in writing of
any notice of cancellation, default or any other similar notice from Household
or any other such provider of a commercial credit receivables sales and
administrative program.
Section 5.9. Lender Meetings. From time to time as requested by the Agent or the
Majority Lenders, participate, and cause the chief financial officer to be
available for and to participate in, a meeting of the Agent and the Lenders to
be held, at reasonable intervals, at locations and at times requested by the
Agent (and if applicable, the Majority Lenders), and reasonably satisfactory to
the Borrower.
Section 5.10. Available Properties. If any real property, buildings, fixtures,
equipment or improvements owned or leased by the Borrower or any Subsidiary
become Available Property, promptly, but in any event within 30 days, provide
written notice thereof to the Agent, setting forth with specificity a
description of such property or interest acquired, the location of the property
interest, any structures or improvements thereon and an appraisal or its good
faith estimate of the current fair market value of such property or interest. If
the Agent so requests, the Borrower or the relevant Subsidiary shall promptly
execute and deliver to the Agent a mortgage or deed of trust,
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substantially in the form of Exhibits D-3 and D-4 to the Existing Credit
Agreement, respectively (with such changes as may be deemed appropriate by the
Agent's local real estate counsel for the state in question), together with such
other documents or instruments as the Agent shall reasonably require, including
(without limitation) a Title Policy, a Survey, a Phase I environmental report,
UCC Financing Statements and an opinion of the Agent's local real estate
counsel. The Borrower shall pay all reasonable fees and expenses, including
attorneys' fees and expenses or the allocated charges and premiums, in
connection with its obligation under this Section. If at any time after the
Existing Effective Date, any existing Lien or sale-leaseback arrangement which
had prevented the further mortgaging of any real property of the Borrower or any
Subsidiary, shall for any reason no longer prevent such further mortgaging, then
such property shall also be deemed an Available Property for purposes of this
Section.
Section 5.11. Subsidiaries. Use its best efforts to conduct all of its business,
to the extent feasible, through a single corporate entity (i.e., the Borrower)
and to avoid the formation or acquisition of Subsidiaries. Notwithstanding the
foregoing, in the event that the Borrower determines that it is in its best
interest to form or acquire a Subsidiary and the Borrower transfers, conveys or
assigns any CIBC Collateral to such Subsidiary, the Borrower will cause such
Subsidiary to be wholly-owned, to have aggregate net payables owing to the
Borrower of less than $10,000,000 at all times and to execute and deliver to the
Agent for the benefit of the Secured Parties a guarantee, substantially in the
form of Exhibit B hereto, a security agreement granting collateral security for
the guaranteed obligations, substantially in the form of Exhibit C hereto, and
such other documents and opinions in connection therewith as the Agent shall
reasonably request, all in form and substance satisfactory to the Agent. Such
guarantee, security agreement and such other documents shall be delivered to the
Agent no later than 30 days after the date on which such Subsidiary has been
formed or otherwise acquired by the Borrower.
Section 5.12. Further Assurances. At the Borrower's cost and expense, upon
request of the Agent, duly execute and deliver, or cause to be duly executed and
delivered, such further instruments and do and cause to be done such further
acts as may be necessary or desirable in the opinion of the Agent or its counsel
to give effect to the provisions and purposes of this Agreement and the other
Loan Documents.
Section 5.13. Environmental Undertaking. (a) In the event the Agent determines
that any representation hereunder may be incorrect or that the Borrower or any
Subsidiary has failed to comply with any covenant contained in Section 6.12 in
any material respect, promptly undertake such investigations, studies, samplings
and testings relative to any Hazardous Substance at the Property in question as
the Agent may request.
(b) At the Borrower's cost and expense, promptly deliver
copies of all environmental investigations, studies, audits, tests, reviews or
analyses conducted by, on behalf of, or which are in possession of the Borrower
or any of its Subsidiaries with respect to any Property, as the Agent may
request in writing.
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Section 5.14. Post-Closing Matters. To the extent that the Borrower shall not
have delivered as of the Effective Date all of the original certificates of
title for vehicles pledged to the Agent for its benefit and the benefit of the
other Secured Parties as required pursuant to Section 4.1(h) of this Agreement,
deliver the same within sixty (60) days of the Effective Date, or such longer
period to which the Agent may consent.
SECTION 6. NEGATIVE COVENANTS
From the date hereof and for so long as any Obligation of the Borrower
shall remain outstanding or unpaid under this Agreement, the Borrower will not,
and will not permit any Subsidiary to:
Section 6.1. Liens. Incur, create, assume or suffer to exist any Lien on any
CIBC Collateral or Available Property, other than (i) Permitted Liens; (ii)
Liens granted pursuant to the Existing Security Documents and the Security
Documents; and (iii) Liens granted pursuant to the Fortress Loan Documents.
Section 6.2. Debt. Contract, create, incur, assume or suffer to exist any Debt,
except for (i) the Loans hereunder, (ii) Debt outstanding under the Congress
Facility Documents as in effect on the Effective Date and any Permitted
Refinancing Debt in respect thereof, but not the increase or refinancing of such
Debt in whole or in part except to the extent same constitutes Permitted
Refinancing Debt, (iii) Debt of the type described in clause (viii) of the
definition of "Debt," to the extent that the aggregate notional or face amount
of all such Debt, when taken together with all obligations of the Borrower in
respect of interest rate protection agreements or other hedging arrangements,
does not exceed $36,000,000, (iv) Debt outstanding under the Fortress Loan
Documents as in effect on the Effective Date, and any Permitted Refinancing Debt
in respect thereof, but not the increase or refunding of such Debt in whole or
in part, except to the extent the same constitutes Permitted Refinancing Debt,
(v) Debt of the Borrower and its Subsidiaries outstanding under Capitalized
Leases as in effect on the Effective Date, (vi) Debt not in excess of
$10,000,000 secured by Permitted Liens, (vii) Debt arising from Investments that
are permitted hereunder, and (viii) Debt incurred under the Household Program
Documents and any other agreements permitted under Section 5.8.
Section 6.3. Consolidations, Mergers and Sales of Assets. (i) Consolidate or
merge with or into any other Person, (ii) enter into a partnership or joint
venture with another Person (other than by the acquisition of Minority
Investments to the extent permitted by Section 6.7), or (iii) sell, lease,
assign or otherwise transfer (whether voluntarily or involuntarily) all or any
part of CIBC Collateral except:
(a) sales or transfers of CIBC Collateral (not permitted by any other provision
of this Section); provided, that (1) the sale price of each such asset shall not
be less than the fair market value of such asset at the time of sale thereof
(and, if the sale price thereof is equal to or
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greater than $5,000,000, then the fair market value of such asset shall be
determined in good faith and approved by the Board of Directors of the
Borrower), (2) prior to or concurrently with each such sale for which the sale
price is equal to or greater than $5,000,000, the Borrower shall deliver
evidence to the Agent satisfactory to it of the fair market value at the time of
sale of the asset being sold as determined by the Board of Directors of the
Borrower, (3) not less than 90% of the sale price for each asset sold pursuant
to this clause (a) shall be payable in cash on the date of such sale, (4) the
non-cash portion of the sale price therefor, if any, shall be evidenced by one
or more promissory notes maturing no later than three years after the date of
such sale which shall be pledged to the Agent as provided in Section 6.7(iv),
and by no other form of consideration, (5) if such sale is to an Affiliate, it
is made in compliance with Section 6.6;
(b) the replacement in the ordinary course of business of rolling stock and
Equipment of the Borrower and its Subsidiaries subject to the Lien of the Agent;
provided, however, that the replacement Equipment and rolling stock also shall
be CIBC Collateral;
(c) the sale or other disposition, subject to the Lien of the Agent, by the
Borrower to any of its Subsidiaries in the ordinary course of business of real
estate and related assets, including fixtures, machinery and equipment of the
Borrower no longer necessary for the proper conduct of the Borrower's business
having a value, together with the value of all other property of the Borrower so
sold or disposed of in the same fiscal year of the Borrower, of not greater than
$5,000,000 and the sale or other disposition, subject to the Lien of the Agent,
by the Subsidiaries to the Borrower in the ordinary course of business of real
estate and related assets, including fixtures, machinery and equipment of such
Subsidiaries no longer necessary for the proper conduct of such Subsidiaries'
respective businesses having a value, together with the value of all other
property of such Subsidiaries so sold or disposed of in the same fiscal year of
the Borrower, of not greater than $5,000,000;
(d) the lease by the Borrower, as lessor, of those stores and real estate
described on Schedule 6.3 and other real property of the Borrower not necessary
for the operations of the Borrower or any of its Subsidiaries, in each instance
under this clause (d) having a fair market value of not greater than $5,000,000
individually, or $10,000,000 in the aggregate at any one time for all real
property leased under this clause (d); provided, that such leases shall be
entered into with a Person who is not an Affiliate of the Borrower on an arms'
length basis for fair consideration and such leases shall not be capital leases;
(e) the merger of any wholly owned Subsidiary into the Borrower or the
consolidation of any wholly owned Subsidiary with the Borrower in which the
Borrower shall be the surviving corporation; and
(f) sales of assets securing the Fortress Real Estate Financing for fair market
value; provided, that the Net Cash Proceeds thereof are applied to the repayment
or prepayment of the Fortress Real Estate Financing.
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The Borrower shall deliver to the Agent, no less than three (3)
Business Days prior to the date of any expected sale or other disposition
permitted under clause (a) or clause (c) of this Section 6.3, written notice of
the expected date of the closing of such sale or other disposition and the
expected date of receipt by the Borrower of the Net Cash Proceeds with respect
thereto; provided, that with respect to any expected sale or other disposition
of any Property subject to Liens in favor of the Agent, the Borrower shall
deliver to the Agent, no less than thirty (30) Business Days prior to the
closing thereof, (x) written notice of the identity of the purchaser or
transferee, the expected date of the closing of such sale or other disposition
and the principal terms of the sale or other disposition and (y) the form of the
purchase agreement to be delivered at the closing thereof.
Section 6.4. Termination of Plans. Take any action to terminate any of its
Plans which could result in a material liability of the Borrower or any
Subsidiary to any Person.
Section 6.5. Restricted Payments. Declare or make, any Restricted Payment,
except:
(i) (x) regular, scheduled or mandatory payments or mandatory
prepayments of principal and interest on Debt for Borrowed Money
and (y) optional prepayments of principal and interest on the
Fortress Real Estate Financing (but only to the extent of the net
proceeds of any Permitted Refinancing Debt incurred for such
purpose or the Net Cash Proceeds of the sale of any Property or
other assets subject to the Fortress Real Estate Financing);
(ii) payments in an amount not to exceed $1,000,000 in the
aggregate in connection with limited stock buy-back or reverse
stock split transactions with respect to the Borrower's capital
stock;
(iii) transactions with Affiliates as expressly permitted under
Section 6.6; and
(iv) payments to the Borrower by a Subsidiary.
Section 6.6. Transactions with Affiliates. Sell or transfer any Property or
other assets to, or otherwise engage in any other transactions with, any of its
Affiliates other than in the ordinary course of business at prices and on terms
and conditions not less favorable to the Borrower, or the affected Subsidiary,
than could be obtained on an arm's-length basis from unrelated third parties.
Section 6.7. Investments, Loans and Advances. Purchase, hold or acquire any
capital stock, evidences of Debt or other securities of, make or permit to exist
any loans or advances to, or make or permit to exist any investment in, any
other Person by the Borrower or any Subsidiary (all of the foregoing,
"Investments"), except, in the case of the Borrower, for (i) the ownership by
the Borrower of capital stock of any Subsidiary existing on the date hereof,
(ii) Temporary Cash Investments; provided, however, that while any Loans are
outstanding such Investments shall not exceed $15,000,000 in the aggregate at
any one time outstanding and shall be maintained at all times
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in an investment account located in the United States, (iii) existing
Investments set forth on Schedule 6.7, but not any increase in the amount
thereof, and the Borrower causes each such Subsidiary to comply with the
requirements of Section 5.11 (it being agreed that an Investment in a Subsidiary
will no longer be deemed to be outstanding if such Subsidiary is merged into the
Borrower); and provided further, that all such Subsidiaries are incorporated in
a jurisdiction in the United States and substantially all of their assets are at
all times located in the United States, (iv) Investments in promissory notes
representing the non-cash purchase price for the sales of assets permitted under
Section 6.3(a); provided, that such Investments do not exceed $5,000,000 in the
aggregate at any one time; provided further, that such promissory notes are
pledged by the Borrower to the Agent for the benefit of the Secured Parties
pursuant to a Supplement, substantially in the form of Annex A to the Security
and Pledge Agreement; (v) Minority Investments, in addition to those permitted
under any other clause of this Section, in Persons organized or incorporated in
a jurisdiction in the United States, substantially all of whose assets are
located in the United States; provided, that the aggregate amount of all such
Minority Investments shall not exceed $2,000,000; and (vi) Investments (not
permitted by any of clauses (i) through (v) of this Section) in an amount not
exceeding $1,000,000 in the aggregate outstanding at any one time.
Section 6.8. Business Segments. (i) Suspend the operation of a segment material
to the operation of its business as presently conducted, which suspension could
materially impair the operations of the Borrower and its Subsidiaries taken as a
whole; or (ii) engage at any time in any business or business activity other
than the business currently conducted by it and business activities reasonably
incidental thereto.
Section 6.9. Accounting Changes. Make any significant change in its accounting
treatment or financial reporting practices except as required by GAAP or change
its fiscal year or the method of determining its fiscal quarter ends.
Section 6.10. Amendment and Modification of Certain Documents.
(a) Directly or indirectly, amend, modify, supplement, waive compliance with, or
assent to noncompliance with any term, provision or condition of the Certificate
of Incorporation of the Borrower as in effect on the Effective Date which the
Agent or the Majority Lenders deem material.
(b) Directly or indirectly, amend, modify, supplement, waive compliance with, or
assent to noncompliance with, any term, provision or condition of the Fortress
Loan Agreement or any of the other Fortress Loan Documents as in effect on the
Effective Date (A) which the Agent or the Majority Lenders deem material
(including, without limitation, terms, provisions or conditions relating to
events of default, acceleration rights or other remedies, tenor, interest rates,
substitution of collateral, the non-recourse nature of such financing, covenants
and prohibitions against amending any of the Loan Documents) or (B) which the
Agent reasonably determines would place any further material restrictions on the
Borrower or its Subsidiaries or materially increase the obligations of the
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Borrower or any of its Subsidiaries thereunder or confer on the holders thereof
any material additional rights.
(c) Directly or indirectly, amend, modify, supplement, waive compliance with, or
assent to noncompliance with, any term, provision or condition of the Congress
Facility Agreement or any of the other Congress Facility Documents which would
have the effect of restricting the ability of the Borrower to refinance the
indebtedness under this Agreement or the indebtedness under the Fortress Loan
Agreement.
Section 6.11. Sale/Leasebacks. Enter into any arrangements, directly or
indirectly, with any Person, whereby the Borrower or any such Subsidiary shall
sell or transfer any property, whether now owned or hereafter acquired, used or
useful in its business, in connection with the rental or lease of the property
so sold or transferred.
Section 6.12. Environmental Matters.
(a) Use, generate, manufacture, produce, store, Release, discharge or dispose of
on, under or about any Property or transport or arrange for the transportation,
treatment, storage or disposal to or from the Property, any Hazardous Substance,
or (to the extent within the Borrower's or any such Subsidiary's control) permit
any other Person to do so, where such could reasonably be expected to have a
Material Adverse Effect.
(b) Fail to keep and maintain the Property in compliance with any Environmental
Law where the failure to do so could reasonably be expected to have a Material
Adverse Effect.
(c) In the event that any investigation, site monitoring, containment, cleanup,
removal, restoration or other remedial work of any kind or nature (the "Remedial
Work") with respect to any portion of the Property is required to be performed
by the Borrower or any of its Subsidiaries under any applicable Environmental
Law, or by any Governmental Authority or any other Person because of, or in
connection with, any current or future presence, suspected presence, Release or
suspected Release of a Hazardous Substance in or into the air, soil, groundwater
or surface water at, on, under, to, from or within the Property (or any portion
thereof), which could reasonably be expected to have a Material Adverse Effect
(i) fail to promptly notify the Agent in writing, (ii) fail to commence, as soon
as practicable, and thereafter diligently prosecute to completion, all such
Remedial Work or (iii) fail to promptly provide the Agent with the results of
such investigations, studies and samplings.
(d) As used herein, (i) "Environmental Clean-up Site" means any location which
is listed or proposed for listing on the National Priorities List, the
Comprehensive Environmental Response, Compensation and Liability Information
System, or on any similar state list of sites requiring investigation or
cleanup; (ii) "Environmental Law" means any and all current or future federal,
state, local, provincial and foreign, civil and criminal laws, statutes,
ordinances, orders,
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common law, codes, rules, regulations, Environmental Permits, policies, guidance
documents, judgments, decrees, injunctions, or agreements with any Governmental
Authority, relating to the protection of health and the Environment, worker
health and safety, and/or governing the handling, use, generation, treatment,
storage, transportation, disposal, manufacture, distribution, formulation,
packaging, labeling, or Release of Hazardous Substances, whether now existing or
subsequently amended or enacted, including but not limited to: the Clean Air
Act, 42 U.S.C. ss. 7401 et seq.; the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. ss. 9601 et seq.; the Federal
Water Pollution Control Act, 33 U.S.C. ss. 1251 et seq.; the Hazardous Material
Transportation Act 49 U.S.C. ss. 1801 et seq.; the Federal Insecticide,
Fungicide and Rodenticide Act 7 U.S.C. ss. 136 et seq.; the Resource
Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. ss. 6901 et seq.; the
Toxic Substances Control Act, 15 U.S.C. ss. 2601 et seq.; the Occupational
Safety & Health Act of 1970, 29 U.S.C. ss. 651 et seq.; the Oil Pollution Act of
1990, 33 U.S.C. ss. 2701 et seq.; and the state analogies thereto, all as
amended or superseded from time to time; and any common law doctrine, including
but not limited to, negligence, nuisance, trespass, personal injury, or property
damage related to or arising out of the presence, Release, or exposure to a
Hazardous Substance; (iii) "Environmental Permit" means any federal, state,
local, provincial, or foreign permits, licenses, approvals, consents or
authorizations required by any Governmental Authority under or in connection
with any Environmental Law and includes any and all orders, consent orders or
binding agreements issued or entered into by a Governmental Authority under any
applicable Environmental Law; (iv) "Hazardous Substance" means petroleum,
petroleum hydrocarbons or petroleum products, petroleum by-products, radioactive
materials, asbestos or asbestos-containing materials, gasoline, diesel fuel,
pesticides, radon, urea formaldehyde, lead or lead-containing materials,
polychlorinated biphenyls; and any other chemicals, materials, substances or
wastes in any amount or concentration which are now or hereafter become defined
as or included in the definition of "hazardous substances," "hazardous
materials," "hazardous wastes," "extremely hazardous wastes," "restricted
hazardous wastes," "toxic substances," "toxic pollutants," "pollutants,"
"regulated substances," "solid wastes," or "contaminants" or words of similar
import, under any Environmental Law; (v) "Property" means any real property
currently or formerly owned, leased or operated by the Borrower or its
Subsidiaries, including but not limited to, the buildings, fixtures,
groundwater, soil, and surface water thereat; (vi) "Release" means any
discharging, disposing, emitting, leaking, pumping, pouring, emptying,
injecting, escaping, leaching, dumping or spilling of any Hazardous Substance
into the environment.
SECTION 7. EVENTS OF DEFAULT
Section 7.1. Events of Default. In the case of the happening of any of the
following events and the continuance thereof beyond the applicable period of
grace, if any (each, an "Event of Default"):
(a) any material representation or warranty made by the Borrower in this
Agreement or in any other Loan Document or in connection with this Agreement or
any other Loan Document or in connection with the execution and delivery of this
Agreement or any of the other
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Loan Documents or the credit extensions hereunder or any material statement or
representation made in any report, financial statement, certificate or other
document furnished by the Borrower to the Agent or the Lenders under or in
connection with this Agreement or any of the other Loan Documents, shall prove
to have been false or misleading in any material respect when made or delivered;
or
(b) default shall be made in the payment of any principal of or interest on the
Loans or any other amounts payable by the Borrower hereunder, when and as the
same shall become due and payable, whether at the due date thereof (including,
without limitation, the Maturity Date) or at a date fixed for prepayment thereof
or by acceleration thereof or otherwise; or
(c) default shall be made by the Borrower in the due observance or performance
of any covenant, condition or agreement contained in Section 6 (and such default
shall continue unremedied after notice to the Borrower in the case of Section
6.6) or in Section 5.10; or
(d) default shall be made by the Borrower or any Subsidiary in the due
observance or performance of any other covenant, condition or agreement to be
observed or performed pursuant to the terms of this Agreement or any of the
other Loan Documents and such default shall continue unremedied (w) in the case
of Section 5 (other than Sections 5.1(a) and (b), 5.3(a), 5.5, 5.9 and 5.14),
after notice to the Borrower, (x) in the case of Section 5.1(a) and (b), for
more than five (5) days after notice to the Borrower, (y) in the case of
Sections 5.2 and 5.5, for more than thirty (30) days after notice to the
Borrower and (z) in all other cases, for more than ten (10) days after notice to
the Borrower; or
(e) the Borrower or any Subsidiary shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for the
benefit of creditors, or shall become unable, admit in writing its inability or
fail generally to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing; or
(f) an involuntary case or other proceeding shall be commenced against the
Borrower or any Subsidiary seeking liquidation, reorganization or other relief
with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Borrower or any Subsidiary under the federal
bankruptcy laws as now or hereafter in effect; or
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(g) a Change of Control shall have occurred; or
(h) any material provision of any Loan Document shall, for any reason, cease to
be valid and binding on the Borrower or any Subsidiary, or the Borrower or such
Subsidiary shall so assert in any pleading filed in any court; or
(i) any judgment or order as to a liability or Debt for the payment of money in
excess of $5,000,000 shall be rendered against the Borrower or any Subsidiary
and the enforcement thereof shall not be subject to any applicable stay; or
(j) any non-monetary judgment or order shall be rendered against the Borrower
or any Subsidiary which does or would reasonably be expected to (i) cause a
Material Adverse Effect, or (ii) have a material adverse effect on the rights
and remedies of the Agent or any Lender under any Loan Document, and there shall
be any period of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(k) (i) any Event of Default occurs under the Fortress Loan Documents, (ii) any
Event of Default occurs under the Congress Facility Documents or (iii) the
Borrower or any Subsidiary shall fail to make any payment in respect of any
other Debt aggregating $3,000,000 or more, in each case when due or within any
applicable grace period or any event or condition shall occur which (x) results
in the acceleration of the maturity of such other Debt or the termination of any
commitment to lend any such other Debt or (y) enables (or, with the giving of
notice or lapse of time or both, would enable) the holder of such other Debt or
any Person acting on such holder's behalf to accelerate the maturity thereof or
terminate any commitment to lend such other Debt; or
(l) any ERISA Event shall have occurred with respect to a Plan and, 30 days
after notice of such occurrence shall have been given to the Borrower by the
Agent (i) such ERISA Event shall still exist and (ii) the sum (determined as of
the date of occurrence of such ERISA Event) of the Insufficiency of such Plan
and the Insufficiency of any and all other Plans with respect to which an ERISA
Event shall have occurred and then exist (or, in the case of a Plan with respect
to which an ERISA Event described in clauses (b), (c), (e) and (f) of the
definition of ERISA Event shall have occurred and then exist, the liability
related thereto) is equal to or greater than $3,000,000; or
(m) the Borrower, any Subsidiary or any ERISA Affiliate of any of them shall
have been notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
the Borrower, any Subsidiary or any ERISA Affiliate of any of them as Withdrawal
Liability (determined as of the date of such notification), exceeds $5,000,000
or requires payments exceeding $2,000,000 per annum; or
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(n) the Borrower, any Subsidiary or any ERISA Affiliate of any of them shall
have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated within the
meaning of Title IV of ERISA if, as a result of such reorganization or
termination, the aggregate annual contributions of the Borrower, the
Subsidiaries and their ERISA Affiliates to all Multiemployer Plans which are
then in reorganization or being terminated have been or will be increased over
the aggregate amounts contributed to such Multiemployer Plans for the respective
plan year of each such Multiemployer Plan immediately preceding the plan year in
which the reorganization or termination occurs by an amount exceeding
$2,000,000; or
(o) it shall be determined (whether by the Bankruptcy Court or by any other
judicial or administrative proceeding, forum or settlement) that the Borrower or
any Subsidiary is liable for the payment of claims arising under Environmental
Laws, the payment of which will have a Material Adverse Effect;
then, and in every such event and at any time thereafter during the continuance
of such event, the Agent may, and at the request of the Majority Lenders (as the
case may be) shall, by notice to the Borrower, take one or more of the following
actions, at the same or different times: (i) declare the Loans then outstanding
to be forthwith due and payable, whereupon the principal of the Loans, together
with accrued interest thereon and all other liabilities of the Borrower accrued
hereunder and under any other Loan Document, shall become forthwith due and
payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by the Borrower, anything contained
herein or in any other Loan Document to the contrary notwithstanding; and (ii)
exercise and enforce any and all remedies under the Loan Documents and under
applicable law available to the Agent and the Lenders; provided, that without
any notice to the Borrower or any other act by the Agent or the Lenders, in the
case of the occurrence of (x) any of the Events of Default specified in clauses
(e) or (f) above with respect to the Borrower or any Subsidiary (y) any of the
Events of Default specified in clause (k) above with respect to the Fortress
Real Estate Financing as to which Fortress either accelerates the maturity of
any of the Debt owing by the Borrower or any of its Subsidiaries to Fortress
with respect thereto or otherwise exercises any of its rights or remedies to
liquidate, realize or foreclose upon any collateral securing such Debt, or (z)
any of the Events of Default specified in clause (k) above with respect to the
Congress Facility as to which Congress Financial either accelerates the maturity
of any the Debt owing by the Borrower or any of its Subsidiaries to Congress
Financial with respect thereto or otherwise exercises any of the rights or
remedies to liquidate, realize or foreclose upon any collateral securing such
Debt, all amounts due hereunder (together with accrued interest thereon) and all
other Secured Obligations and liabilities of the Borrower hereunder and under
the other Loan Documents shall become immediately due and payable.
Section 7.2. Application of Proceeds. If a Default or an Event of Default shall
have occurred and be continuing, all proceeds of the CIBC Collateral and all
other payments received under this Agreement or the other Loan Documents
(including as a result of or in connection with
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a proceeding under the Bankruptcy Code or any other similar state law proceeding
involving the Borrower) which constitute identifiable proceeds of CIBC
Collateral shall be applied by the Agent to payment of the Secured Obligations
in the following order:
(i) FIRST, to payment of all unreimbursed costs and expenses of
the Agent which are payable by the Borrower pursuant to any of
the Loan Documents and all unreimbursed costs and expenses of the
Lenders which are payable pursuant to Section 9.5;
(ii) SECOND, to payment first of the accrued and unpaid interest
on, next the principal of and then all other amounts due to the
Existing Cash Management Bank with respect to the Cash Management
Obligations, if any, remaining unpaid after the exercise of any
set-off rights available to the Existing Cash Management Bank
pursuant to Section 2.13;
(iii) THIRD, to payment first of the accrued and unpaid interest
on, next the principal of and then all other amounts due under
the Loan Documents in respect of the Term Loans, ratably amongst
the Term Lenders in accordance with the proportion which the
aggregate principal amount of the outstanding Obligations owing
to the Term Lenders at the time bears to the aggregate principal
amount of such Obligations until the interest on and principal of
the Obligations shall be paid or provided for in full;
(iv) FOURTH, to the payment of any remaining unpaid Secured
Obligations ratably amongst the Secured Parties in accordance
with the proportion which the amount of such other Secured
Obligations owing to each such Secured Party bears to the
aggregate principal amount of such other Secured Obligations
owing to all of the Secured Parties until such other Secured
Obligations shall be paid in full; and
(v) FIFTH, the balance, if any, after all of the Secured
Obligations have been satisfied, shall be returned to the
Borrower or paid over to such other Person as may be required by
law.
The Borrower acknowledges and agrees that it shall remain liable to the
extent of any deficiency between (x) the amount of the proceeds of the CIBC
Collateral and all other payments received under this Agreement and applied
pursuant to this Section to the sums referred to in the FIRST through FOURTH
clauses above and (y) the aggregate amount of the sums referred to in the FIRST
through FOURTH clauses above.
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SECTION 8. THE AGENT; THE ADMINISTRATIVE AGENT
Section 8.1. Appointment and Authorization. Each Secured Party irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers, under this Agreement and the other Loan Documents as
are delegated to the Agent, as the case may be, by the terms hereof or thereof,
together with all such powers as are reasonably incidental thereto.
Section 8.2. Agent and Affiliates. The Agent shall have the same rights and
powers under this Agreement as any other Lender and may exercise or refrain from
exercising the same, as though it were not the Agent, and the Agent and its
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any Subsidiary or Affiliate of the
Borrower as if it were not the Agent.
Section 8.3. Action by Agent. The obligations of the Agent hereunder and under
the other Loan Documents are only those expressly set forth herein and therein.
Without limiting the generality of the foregoing, Agent shall not be required to
take any action with respect to any Default, except as expressly provided in
Section 7 and in the Security Documents and except that the Agent shall take
such action with respect to such Default as shall be reasonably directed by the
Majority Lenders; provided, that unless and until the Agent shall have received
such directions, the Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default as it shall
deem advisable.
Section 8.4. Consultation with Experts. The Agent may consult with legal counsel
(who may be counsel for the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken by it in good faith in accordance with the advice of such counsel,
accountants or experts.
Section 8.5. Liability of Agent. Notwithstanding any other provision, express or
implied, to the contrary in this Agreement or any other Loan Document, neither
the Agent nor any of its directors, officers, agents, employees,
attorneys-in-fact or Affiliates shall be liable for any action taken or not
taken by them in connection herewith or in connection with any other Loan
Document (i) with the consent or at the request of the applicable Lenders, or
(ii) in the absence of their own gross negligence or willful misconduct, as
determined by a final order or judgment of a court of competent jurisdiction.
Neither the Agent nor any of its directors, officers, agents, employees,
attorneys-in-fact or Affiliates shall be responsible for or have any duty to
ascertain, inquire into or verify (i) any statement, warranty or representation
made in connection with this Agreement, any other Loan Document or any Borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Borrower; (iii) the satisfaction of any condition specified in
Section 4 (except where the satisfaction of the Agent is specifically required);
or (iv) the validity, effectiveness or genuineness of this Agreement, any other
Loan Document or any other instrument or writing furnished in connection
herewith or therewith. The Agent shall not incur any liability by acting in
reliance upon any notice, consent, certificate, statement, or other writing
(which may be
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a bank wire or similar writing) believed by it in good faith to be genuine or to
be signed by the proper party or parties.
Section 8.6. Reimbursement and Indemnification; Set-Off.
(a) Each Lender agrees (i) to reimburse (x) the Agent, on
demand, in such Lender's Percentage, for any expenses and fees incurred by the
Agent for the benefit of the Lenders under or in connection with this Agreement,
and any of the Loan Documents including, without limitation, counsel fees and
compensation of agents and employees paid for services rendered on behalf of the
Lenders, and any other expense incurred in connection with the operations or
enforcement hereof or thereof not required to be reimbursed by the Borrower and
(y) the Agent in such Lender's Percentage for any expenses, costs, fees or
disbursements of the Agent incurred for the benefit of the Lenders that the
Borrower has agreed to reimburse pursuant to Section 9.5 and has failed so to
reimburse and (ii) to indemnify and hold harmless the Agent and any of their
respective directors, officers, employees, agents, advisors, consultants,
attorneys-in-fact, experts, other professional persons and representatives and
Affiliates, on demand, in such Lender's Percentage from and against any and all
penalties, fines, expenses, losses, settlements, costs, claims, causes of
action, debts, dues, sums of money, accounts, accountings, reckonings, acts,
omissions, demands, liabilities, obligations, damages, actions, judgments,
suits, proceedings, or disbursements of any kind or nature whatsoever, known or
unknown, contingent or otherwise, which may be imposed on, incurred by, or
asserted against any of them in any way relating to or arising out of this
Agreement, or any of the other Loan Documents or any action taken or omitted by
it or any of them under this Agreement, or any of the other Loan Documents to
the extent not reimbursed by the Borrower (except such as shall result from
their respective gross negligence or willful misconduct as determined by a final
order or judgment of a court of competent jurisdiction). Without limiting the
foregoing, the agreements contained in Section 10.6 of the Pre-Petition Credit
Agreement and Section 8.6(a) of the Existing Credit Agreement shall continue in
full force and effect as to the matters covered thereby.
(b) The Agent is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and
all amounts received by the Agent for the account of a Defaulting Lender to the
satisfaction of the unpaid obligations owing by such Defaulting Lender to the
Agent and the rights of such Defaulting Lender with respect to all such amounts
shall be subject and subordinate to the rights of the Agent to be paid the
amounts owing to it by such Defaulting Lender.
Section 8.7. Credit Decision. Each Secured Party expressly acknowledges that
neither the Agent nor any of its directors, officers, employees, agents,
advisors, attorneys-in-fact or Affiliates has made any representations or
warranties to it and that no act by the Agent hereinafter taken, including any
review of the affairs of the Borrower, shall be deemed to constitute any
representation or warranty by the Agent to any Secured Party. Each Secured Party
acknowledges that it has independently and without reliance upon the Agent or
any other Secured Party, and based
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on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Secured Party
also acknowledges that it will independently and without reliance upon the Agent
or any other Secured Party, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking any action under this Agreement. Except for notices,
reports and other documents expressly required to be furnished to the Secured
Parties by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Secured Party with any credit or other information
concerning the business,operations, property, condition(financial or otherwise),
prospects or creditworthiness of the Borrower or any Subsidiary which may come
into the possession of the Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
Section 8.8. Notice of Transfer. The Agent may deem and treat a Lender party to
this Agreement as the owner of such Lender's portion of the Loans for all
purposes, unless and until a written notice of the assignment or transfer
thereof executed by such Lender and its assignee in accordance with Section 9.3
shall have been accepted by the Agent.
Section 8.9. Relations Among Lenders. Each Lender in its capacity as a Lender
agrees that it will not take any legal action, nor institute any actions or
proceedings, against the Borrower hereunder or with respect to any CIBC
Collateral, it being understood and agreed that all such actions are to be taken
by the Agent on behalf of the Lenders. Without limiting the generality of the
foregoing, no Lender may unilaterally accelerate or otherwise enforce or seek to
enforce its portion of the Secured Obligations, except in accordance with
Section 7.1.
Section 8.10. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the other Secured Parties and the Borrower. Upon any
such resignation, the Majority Lenders, acting together shall have the right to
appoint a successor Agent, which shall be reasonably satisfactory to the
Borrower. If no successor Agent shall have been so appointed and shall have
accepted such appointment, within 30 days after the retiring Agent's giving of
notice of resignation, the retiring Agent may, on behalf of the Lenders, appoint
a successor Agent, which shall be a commercial bank organized under the laws of
the United States of America or of any State thereof and having a combined
capital and surplus of a least $100,000,000, which shall be reasonably
satisfactory to the Borrower. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Section shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was Agent under this
Agreement.
Section 8.11. Concerning the Administrative Agent. Notwithstanding any other
provision of this Agreement, it is understood and agreed that the Administrative
Agent shall have no obligations or duties under this Agreement and the other
Loan Documents except such as are expressly set forth in this Agreement or the
other Loan Documents.
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SECTION 9. MISCELLANEOUS
Section 9.1. Notices. Notices and other communications provided for herein shall
be in writing (including telegraphic, telex, facsimile or cable communication)
and shall be mailed, telegraphed, telexed, transmitted, cabled or delivered to
the Borrower at its offices at 000 X.X. Xxxxxxx Xxxx, Xxxxx 0000, Xxx'x Xxxxxx,
XX 00000 or its mailing address at X.X. Xxx 000000, Xxx'x Xxxxxx, XX 00000-0000,
Attention: Chief Financial Officer, and to any Lender or the Agent at its
address set forth on the signature pages of this Agreement, or such other
address as such party may from time to time designate by giving written notice
to the other parties hereunder. All notices and other communications given to
any party hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the fifth Business Day after the date when sent by
registered or certified mail, postage prepaid, return receipt requested, if by
mail; or when delivered to the telegraph company, charges prepaid, if by
telegram; or when receipt is acknowledged, if by any telegraphic communications
or facsimile equipment of the sender; in each case addressed to such party as
provided in this Section or in accordance with the latest unrevoked written
direction from such party; provided, that in the case of notices to the Agent,
notices pursuant to the preceding sentence and pursuant to Section 2 shall be
effective only when received by the Agent.
Section 9.2. Survival of Agreement, Representations and Warranties, etc. All
warranties, representations and covenants made by the Borrower herein or in any
certificate or other instrument delivered by it or on its behalf in connection
with this Agreement shall be considered to have been relied upon by the Secured
Parties and shall survive the making of the Loans herein contemplated,
regardless of any investigation made by any Lender or on its behalf and shall
continue in full force and effect so long as any amount due or to become due
hereunder is outstanding and unpaid.
Section 9.3. Successors and Assigns.
(a) (i) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Agent, the Lenders and the other Secured Parties and their
respective successors and assigns. The Borrower may not assign or transfer any
of its rights or obligations hereunder without the prior written consent of all
of the Lenders.
(ii) Each Lender may sell participations to any Person in all or part of
its Loan, in which event, without limiting the foregoing, the provisions of
Sections 2.9, 2.10 and 2.12 shall inure to the benefit of each purchaser of a
participation (provided, that such participant shall look solely to the seller
of such participation for such benefits, and the Borrower's liability, if
any, under Sections 2.9, 2.10 and 2.12 shall not be increased as a result of the
sale of any such participation) and the pro rata treatment of payments, a
described in Section 2.11, shall be determined as if such Lender had not sold
such participation. In the event any Lender shall sell any participation, such
Lender shall retain the sole right and responsibility to enforce the obligations
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of the Borrower relating to the Loans including,without limitation, the right to
approve any amendment, modification or waiver of any provision of this Agreement
(provided, that such Lender may grant its participant the right to consent
to such Lender's execution of amendments, modifications or waivers which (i)
reduce the amount of any scheduled principal payment on any Loan or reduce
the principal amount of any Loan or the rate of interest payable hereunder or
(ii) extend the maturity of the Borrower's obligations hereunder). The sale of
any such participation shall not alter the rights and obligations of the Lender
selling such participation hereunder with respect to the Borrower.
(b) (i) Each Lender may assign to one or more Lenders or Eligible Assignees all
or a portion of its interests, rights and obligations under this Agreement;
provided, that (w) other than in the case of an assignment to a Person at least
50% owned by the assignor Lender, or by a common parent of both, or to another
Lender, the Agent must give its prior written consent, which consent will not be
unreasonably withheld, (x) the aggregate amount of the Term Loans of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Agent) shall, unless otherwise agreed to in writing by the Borrower and the
Agent, in no event be less than $5,000,000 (or $1,000,000 in the case of an
assignment between Lenders; provided, however, that the assigning Lender shall
have been a Lender for a period of at least 120 days) unless the Term Loans so
assigned constitute 100% of such Term Loans of the assigning Lender and (y) each
assignment shall be of a constant, not a varying, percentage of all of the
assigning Lender's rights and obligations under this Agreement in respect of its
Term Loans.
(ii) The parties to each such assignment entered into pursuant to paragraph
(b)(i) above shall execute and deliver to the Agent, for its acceptance and
recording in the Register (as defined below), an Assignment and Acceptance
with blanks appropriately completed, together with a processing and recordation
fee of $3,500 (for which the Borrower shall have no liability). Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be
within ten Business Days after the execution thereof (unless otherwise agreed
to in writing by the Agent in its sole discretion), (A) the assignee thereunder
shall be a party hereto and, to the extent provided in such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (B) the
Lender thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the assigning
Lender thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than the representation
and warranty that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim, such assigning Lender
makes no representation or warranty and assumes no responsibility with respect
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to any statements, warranties or representations made in or in connection with
this Agreement or any of the other Loan Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any of the other Loan Documents; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under this Agreement or any of the other Loan
Documents or any other instrument or document furnished pursuant hereto; (iii)
such assignee confirms that it has received a copy of this Agreement and the
other Loan Documents, together with copies of the financial statements referred
to in Section 3.4 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement, any of the other Loan Documents and any other instrument or
document furnished pursuant thereto; (v) such assignee appoints and authorizes
the Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement, any of the other Loan Documents and any other instrument
or document furnished pursuant thereto, as are delegated to the Agent by the
terms hereof or thereof, together with such powers as are reasonably incidental
thereto; and (vi) such assignee agrees that it will perform in accordance with
their terms all obligations that by the terms of this Agreement are required to
be performed by it as a Lender.
(d) The Agent shall maintain at its office a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and principal amount of the Loans owing to, each
Lender from time to time (the "Register"). The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the Agent and
the Lenders shall treat each Person the name of which is recorded in the
Register as a Lender hereunder for all purposes of this Agreement. The Register
shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning
Lender and the assignee thereunder, together with the fee payable in respect
thereof, the Agent shall, if such Assignment and Acceptance has been completed
with blanks appropriately filled and, if required, consented to by the Agent:
(i) accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt written notice thereof to the
Borrower (together with a copy thereof). No assignment shall be effective for
purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(f) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section, disclose to the
assignee or participant or proposed assignee or participant, any information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower; provided, that prior to any such disclosure, each such
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assignee or participant or proposed assignee or participant shall agree in
writing to be bound by the provisions of Section 9.4.
Section 9.4. Confidentiality. The Agent and each Lender agree to keep any
information delivered or made available by the Borrower to it confidential from
anyone other than persons employed or retained by the Agent or such Lender who
are or are expected to become engaged in evaluating, approving, structuring or
administering the Loans; provided, that nothing herein shall prevent the Agent
or any Lender from disclosing such information (i) to any other Lender, (ii) to
any other person if reasonably incidental to the administration of the Loans,
(iii) upon the order of any court or administrative agency, (iv) upon the
request or demand of any regulatory agency or authority, (v) which has been
publicly disclosed other than as a result of a disclosure by the Agent or any
Lender which is not permitted by this Agreement, (vi) in connection with any
litigation to which the Agent, any Lender, or their respective Affiliates may be
a party to the extent reasonably required, (vii) to the extent reasonably
required in connection with the exercise of any remedy hereunder, (viii) to the
Agent's and such Lender's legal counsel, financial advisors and independent
auditors, and (ix) to any actual or proposed participant or assignee of all or
part of its rights hereunder subject to the proviso in Section 9.3(f).
Section 9.5. Expenses. Whether or not the transactions hereby contemplated shall
be consummated, the Borrower agrees to pay all reasonable out-of-pocket expenses
incurred by the Agent (including, but not limited to, the reasonable fees and
disbursements of ML&B, Shook Hardy & Bacon L.L.P., special local and special
real estate counsel for the Agent, any other counsel that the Agent shall retain
and any third-party consultants, accountants and auditors advising the Agent or
ML&B, including (without limitation) E&Y Restructuring LLC, financial advisors
to ML&B), and any Lender in connection with the preparation, execution, delivery
and administration of this Agreement, and the other Loan Documents, the making
of the Term Loans, the maintenance or perfection of the Liens contemplated
hereby, any consent or waiver hereunder or thereunder, and any amendment or
modification hereof or thereof, the reasonable and customary costs, fees and
expenses of the Agent in connection with its monthly and other periodic field
audits and monitoring of assets and, following the occurrence of an Event of
Default, all reasonable out-of-pocket expenses incurred by the Lenders and the
Agent in the enforcement or protection of the rights of any one or more of the
Lenders or the Agent in connection with this Agreement or the other Loan
Documents including, but not limited to, the reasonable fees and disbursements
of any counsel for the Lenders or the Agent (including, without limitation, the
allocated costs of in-house counsel). Such payments shall be made on demand upon
delivery of a statement setting forth such costs and expenses. The obligations
of the Borrower under this Section shall survive the termination of this
Agreement and/or the payment and performance of the Secured Obligations.
Section 9.6. Indemnities.
(a) The Borrower agrees to defend, indemnify and hold harmless the Agent, the
Lenders and the other Secured Parties and their respective directors, officers,
employees, agents,
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advisors, consultants, attorneys-in-fact, experts, other professional persons
and representatives and Affiliates (each, an "Indemnified Party"), on demand,
from and against any and all penalties, fines, expenses, losses, settlements,
costs, claims, causes of action, debts, dues, sums of money, accounts,
accountings, reckonings, acts, omissions, demands, liabilities, obligations,
damages, actions, judgments, suits, proceedings or disbursements incurred by
such Indemnified Party, of any kind or nature whatsoever, known or unknown,
contingent or otherwise, arising out of claims made by any Person in any way
relating to the transactions contemplated hereby, including, without limitation,
attorneys' and consultants' fees, investigation and laboratory fees, response
costs, court costs and litigation expenses, except to the extent that any of the
foregoing arise solely out of or result from the gross negligence or willful
misconduct of such Indemnified Party, as determined by a final order or judgment
of a court of competent jurisdiction.
(b) Without limiting the foregoing, the Borrower agrees to defend, indemnify and
hold harmless each Indemnified Party, on demand, from and against any and all
penalties, fines, expenses, losses, settlements, costs, claims, causes of
action, demands, liabilities, obligations, damages, actions, judgments, suits or
disbursements incurred by such Indemnified Party, of any kind or nature
whatsoever, known or unknown, contingent or otherwise, arising out of, or in any
way relating to the violation of, noncompliance with or liability under any
Environmental Law applicable to the operations or activities of the Borrower or
any Subsidiary or the Property, or any orders, requirements or demands of
Governmental Authorities or any other Person related thereto, including, without
limitation, attorneys' and consultants' fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except to the extent that
any of the foregoing arise solely out of or result from the gross negligence or
willful misconduct of such Indemnified Party, as determined by a final order or
judgment of a court of competent jurisdiction.
(c) The indemnities set forth in this Section shall continue in full force and
effect regardless of the termination of this Agreement and the payment and
performance of the Secured Obligations.
Section 9.7. CHOICE OF LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES AND BY FEDERAL LAW TO THE EXTENT
APPLICABLE; PROVIDED, HOWEVER, THAT WITH RESPECT TO ANY MORTGAGE FILED IN
JURISDICTIONS OUTSIDE OF THE STATE OF NEW YORK, THE LAWS OF SUCH JURISDICTION
WHERE SUCH MORTGAGE WAS FILED SHALL APPLY.
Section 9.8. No Waiver. No failure on the part of the Agent or any of the other
Secured Parties to exercise, and no delay in exercising, any right, power or
remedy hereunder or any of the other Loan Documents shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
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other right, power or remedy. All remedies hereunder are cumulative and are not
exclusive of any other remedies provided by law.
Section 9.9. Extension of Maturity. Should any payment of principal of or
interest on any amount due hereunder become due and payable on a day other than
a Business Day, the maturity thereof shall be extended to the next succeeding
Business Day and, in the case of principal, interest shall be payable thereon at
the rate herein specified during such extension.
Section 9.10. Amendments, etc. Unless otherwise specifically provided herein or
in any other Loan Document, no amendment, modification or waiver of any
provision of this Agreement, the Security and Pledge Agreement or the other Loan
Documents, and no consent to any departure by the Borrower therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Majority Lenders, and any such amendment, waiver or consent shall be effective
only in the specific instance and for the purpose for which given; provided,
that no such amendment, modification or waiver shall (i) without the written
consent of all of the Lenders, (a) amend, modify or waive any provision of this
proviso or the definition of Majority Lenders, (b) amend, modify or waive any
provision of this Agreement which provides for the unanimous consent or approval
of the Lenders or (c) substitute, discharge, surrender or release all or
substantially all of the CIBC Collateral except as permitted by the Loan
Documents and (ii) without the written consent of each Lender directly affected
thereby, (a) reduce the principal amount of any Term Loan or the rate of
interest payable thereon or (b) postpone the date for any scheduled payment or
any mandatory prepayment of principal or interest in respect of any Term Loans.
No such amendment, modification or waiver may adversely affect the rights and
obligations of the Agent hereunder without its prior written consent. No notice
to or demand on the Borrower shall entitle the Borrower to any other or further
notice or demand in the same, similar or other circumstances. Each Lender shall
be bound by any amendment, modification, waiver or consent authorized as
provided herein, and any consent by a Lender, or any other holder of any Secured
Obligation, shall bind any Person acquiring such other Secured Obligations. No
amendment to this Agreement shall be effective against the Borrower unless
signed by the Borrower. Notwithstanding any of the foregoing provisions of this
Section 9.10 or anything to the contrary contained in this Agreement, any Lender
which has requested that it not receive material, non-public information
concerning the Borrower and which is therefore unable or unwilling to vote with
respect to an issue arising under this Agreement will agree to vote and will be
deemed to have voted its Loans under this Agreement pro rata in accordance with
the percentages of Loans in favor of and the percentages of Loans against any
such issue under this Agreement.
Section 9.11. Invalidity; Severability. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under all applicable laws and regulations. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
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Section 9.12. Headings. Section headings used herein are for convenience
only and are not to affect the construction of or be taken into consideration
in interpreting this Agreement.
Section 9.13. Execution in Counterparts; Effectiveness. This Agreement may be
executed in any number of counterparts, each of which shall constitute an
original, but all of which taken together shall constitute one and the same
instrument. This Agreement shall become effective when the Agent shall have
received counterparts hereof signed by all of the parties hereto and when the
conditions contained or referred to in Section 4.1 shall have been satisfied or
waived. Delivery of an executed counterpart of a signature page of this
Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
Section 9.14. Prior Agreements.
(a) Subject to the provisions of Section 9.14(b), this
Agreement and the other Loan Documents represent the entire agreement of the
parties with regard to the subject matter hereof and the terms of any letters
and other documentation entered into between the Borrower and any Lender or the
Agent prior to the execution of this Agreement which relate to Loans to be made
hereunder shall be replaced by the terms of this Agreement.
(b) The obligations of the Borrower under Sections 8.6, 9.6,
9.14, and 9.17 of the Existing Credit Agreement, Sections 2.13, 2.14, 2.17,
5.11, 6.14, 9.5 and 9.6 of the DIP Credit Agreement and Sections 5.3, 5.4, 5.5,
5.9, 7.13, 8.28. 11.3 and 11.10 of the Pre-Petition Credit Agreement shall
remain in full force and effect.
Section 9.15. Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or be otherwise within the limitations of, another covenant shall not avoid
the occurrence of a Default or Event of Default if such action is taken or
condition exists.
Section 9.16. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION. EACH OF THE
BORROWER, THE AGENT, THE LENDERS AND EACH OTHER SECURED PARTY HEREBY WAIVES, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LITIGATION IN ANY
COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THE LOAN DOCUMENTS
OR THE COLLATERAL, OR THE VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR
ENFORCEMENT HEREOF OR THEREOF, OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER ARISING
BETWEEN THE BORROWER, ON THE ONE HAND, AND THE AGENT, AND/OR ANY ONE OR MORE OF
THE LENDERS OR OTHER SECURED PARTIES, ON THE OTHER HAND. THE BORROWER HEREBY
IRREVOCABLY CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, OF ANY FEDERAL
COURT, IN EACH CASE LOCATED IN NEW YORK COUNTY AND ANY APPELLATE COURT
THEREFROM, IN CONNECTION
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WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY ONE OR MORE
OF THE LOAN DOCUMENTS OR ANY DOCUMENT OR INSTRUMENT DELIVERED PURSUANT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE CIBC COLLATERAL AND EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW
YORK STATE COURT, OR TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH
OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT SHALL AFFECT ANY RIGHT THAT THE AGENT, ANY LENDER OR ANY OTHER SECURED
PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR THE CIBC COLLATERAL AGAINST THE
BORROWER, ANY SUBSIDIARY OR THEIR PROPERTIES OR ASSETS IN THE COURTS OF ANY
JURISDICTION. THE BORROWER HEREBY WAIVES THE DEFENSES OF FORUM NON CONVENIENS
AND IMPROPER VENUE.
Section 9.17. Effect of Amendment and Restatement of the Pre-Petition Credit
Agreement, the DIP Credit Agreement and the Existing Credit Agreement;
Confirmation of Security Documents. The Borrower acknowledges and agrees that
the Liens on the CIBC Collateral securing payment of the Pre-Petition
Obligations, the DIP Obligations and the Existing Obligations are in all
respects continuing and in full force and effect and secure the payment of the
Secured Obligations hereunder and under the other Loan Documents and that the
Existing Obligations are replaced by the Borrower's Obligations to the Lenders
as set forth herein and in the other Loan Documents.
Section 9.18. Marshaling; Recapture. Neither the Agent nor any Lender shall be
under any obligation to marshal any assets in favor of the Borrower or any other
party or against or in payment of any or all of the Secured Obligations. To the
extent any Lender receives any payment by or on behalf of the Borrower, which
payment or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to the Borrower
or its estate, trustee, receiver, custodian or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then to the
extent of such payment or repayment, the Secured Obligations or part thereof
which has been paid, reduced or satisfied by the amount so repaid shall be
reinstated by the amount so repaid and shall be included within the liabilities
of the Borrower to such Lender as of the date such initial payment, reduction or
satisfaction occurred.
Section 9.19. Reproduction of Documents. This Agreement, all documents
constituting Annexes, Schedules or Exhibits hereto, and all documents relating
hereto received by a party hereto, including, without limitation: (a) consents,
waivers and modifications that may hereafter be executed; (b) the Security
Documents and the other Loan Documents; and (c) financial statements,
certificates, and other information previously or hereafter furnished to the
Agent, any Lender or any
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other Secured Party may be reproduced by the party receiving the same by any
photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. Each of the parties hereto agrees and stipulates that, to
the extent permitted by law, any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not such
reproduction was made by such party in the regular course of business) and that,
to the extent permitted by law, any enlargement, facsimile, or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 9.20. Termination of Revolving Commitments Under Existing Credit
Agreement. The Borrower hereby acknowledges and confirms, for the express
benefit of the Existing Revolving Lenders under the Existing Credit Agreement,
that any and all (i) Commitments of such Existing Revolving Lenders to extend
credit under the Existing Credit Agreement and (ii) obligations of such Existing
Revolving Lenders to issue Letters of Credit under the Existing Credit Agreement
or to participate in drawings under the Existing Letters of Credit have been
terminated. The Borrower hereby acknowledges and confirms, for the express
benefit of the Existing Cash Management Bank, that, notwithstanding any
agreement by the Existing Cash Management Bank to provide transitional cash
management services to or for the benefit of the Borrower or Congress Financial
from and after the Effective Date (after which date the Existing Cash Management
Bank shall be indemnified or provided with such other assurances as it may
request by a third party acceptable to the Existing Cash Management Bank), any
and all obligations of the Existing Cash Management Bank to provide cash
management services under the Existing Credit Agreement have been terminated.
[Signature Pages Follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and the year first written.
PAYLESS CASHWAYS, INC.
By:/s/ Xxxxxxx Xxxxx
-------------------------------
Title: Vice President -- Treasury
000 X.X. Xxxxxxx Xxxx
Xxxxx 0000
Xxx'x Xxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
78
CANADIAN IMPERIAL BANK OF COMMERCE,
as Coordinating and Collateral Agent
and as issuer of the Existing
Standby Letters of Credit
By:/s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx
Assistant General Manager
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Agency Services
Telephone: (000) 000-0000
Fax: (000) 000-0000
79
CIBC INC., as a Lender
By:/s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx, as Agent
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
00
XXXX XX XXXXXXX, X.X.
(x/x/x XXXXXXXXXXX, X.X.,XXXXXXXXXXX
OF TEXAS, N.A. and BANK OF AMERICA
NATIONAL TRUST AND SAVINGS
ASSOCIATION), as the Existing Cash
Management Bank and as a Lender
By:/s/ Xxx X. Xxxxxxx
-------------------------------
Title: Managing Director
Domestic and Eurodollar Lending
Offices:
Bank of America
Xxxxx X. Xxxxxx
Officer
CS Single Bank-CLT-Team II
Mail Code: NC1-001-15-03
One Independence Center
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
2nd Telephone: (000) 000-0000
E-mail Name: Xxxxx Xxxxxx
OfficeVision (PROFS):MAIL (AA000557)
Internet:
xxxxx.x.xxxxxx@xxxxxxxxxx.xxx
Hierarchy Code: GCSAAABCAM
Company/Cost Center: 001 0627700
ID Nbr. EYKMMD
All other notices:
Attention: Xxx X. Xxxxxxx
Senior Vice President
Telephone: (000) 000-0000
Fax: (000) 000-0000
81
BANC OF AMERICA SECURITIES LLC,
as agent for Bank of America, N.A.
(f/k/a NationsBank Xxxxxxxxxx
Securities, Inc.)
By:/s/ Xxxxxxx Xxxxxxx
-------------------------------
Title: Principal
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
82
XXXXXX COMMERCIAL PAPER INC., as a
Lender
By:/s/ Xxxxx X. Xxxxx, Xx.
-------------------------------
Title: Authorized Signatory
3 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Xx.
Telephone: (000) 000-0000
Fax: (000) 000-0000
(Loan Servicing)
Xxxxxx Commercial Paper Inc.
c/o Bankers Trust Co.
Loan Services Bureau
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxx
83
XXXXXXX SACHS CREDIT PARTNERS L.P.,
as a Lender
By:/s/ R. Xxxxxxx Xxxxxxxxx
-------------------------------
Title: Authorized Signatory
Domestic and Eurodollar Lending
Offices:
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
and
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
84
XXX XXXXXX PRIME RATE INCOME
TRUST, as a Lender
By:/s/ Xxxxxxx Xxxxx
-------------------------------
Title: Vice President
Xxx Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Credit Contact:
State Street Bank & Trust
Corporate Trust Department
0 Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
and
Xxx Xxxxxx Prime Rate Income Trust
Xxx Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxxx Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
85
U.S. BANK NATIONAL ASSOCIATION, as a
Lender and as Issuer of the Existing
Documentary Letters of Credit
By:/s/ Xxxx X. Xxxxxxxxx
-------------------------------
Title: Vice President
Domestic and Eurodollar Lending
Offices:
U.S. Bank National Association
X.X. Xxxx Xxxxx
XXXX0000
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
All other notices:
X.X. Xxxx Xxxxx, XXXX0000
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxxx, Esq.
U.S. Bancorp
U.S. Bank Place, MPFP2518
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Fax: (000) 000-0000
86
ABN AMRO BANK N.V., as a Lender
By:/s/ Xxxxxxx X. Xxxxxxx, Xx.
-------------------------------
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Title: Group Senior Vice President
Domestic and Eurodollar Lending
Offices:
North America Special Credits
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx x0000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
All other notices:
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx x0000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
00
XXX XXXX XX XXXX XXXXXX, as a Lender
By:/s/ Xxxx X. Xxxxxx
-------------------------------
Title: Senior Manager
Domestic and Eurodollar Lending
Offices:
Xxxxx 0000
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
All other notices:
l Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
88
BEAR, XXXXXXX & CO. INC., as a
Lender
By:/s/ Xxxxxxx X. Xxxxxx
-------------------------------
Title: Senior Managing Director
Administrative Notices and Other
Funding Information:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
All other notices:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
and
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
89
MORGENS WATERFALL DOMESTIC
PARTNERS II, L.L.C., as a Lender
By:/s/ Xxxx X. Xxxxxxxxx
-------------------------------
Title: Authorized Agent
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
90
OAKTREE CAPITAL MANAGEMENT, LLC, as
agent for certain funds and
accounts, as a Lender
By:/s/ Xxxxxxx Xxxxx
-------------------------------
Title: Managing Director & General
Counsel
By:/s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Title: Managing Director
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
91
CONTRARIAN CAPITAL ADVISORS L.L.C.,
as agent for certain entities, as a
Lender
By:/s/ Xxxxxx X. Xxxxxxx
-------------------------------
Title: Member
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxx Xxxxx, Partner
Tel: 000-000-0000
Fax: 000-000-0000
