1
Exhibit 10(b)(i)
EXECUTION COPY
U.S. $150,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of July 27, 1998
Among
THE XXXXX-XXXXXXX STORES CORP.
as Borrower
-----------
and
THE LENDERS PARTY HERETO
CITIBANK, N.A.
as Issuer
---------
and
CITICORP USA, INC.
as Agent and Swing Loan Bank
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TABLE OF CONTENTS
SECTION PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS..................................... 1
1.1. Defined Terms................................................................ 1
1.2. Computation of Time Periods.................................................. 33
1.3. Accounting Terms; Changes in GAAP............................................ 33
1.4. Certain Pre-Reorganization Matters........................................... 33
1.5. Certain Terms................................................................ 34
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS....................................... 34
2.1. The Revolving Credit Loans................................................... 34
2.2. Making the Loans............................................................. 35
2.3. Fees......................................................................... 36
2.4. Reduction and Termination of the Commitments................................. 37
2.5. Repayment.................................................................... 37
2.6. Prepayments.................................................................. 38
2.7. Conversion/Continuation Option............................................... 39
2.8. Interest..................................................................... 40
2.9. Interest Rate Determination and Protection................................... 41
2.10. Increased Costs.............................................................. 41
2.11. Illegality................................................................... 42
2.12. Capital Adequacy............................................................. 43
2.13. Payments and Computations.................................................... 43
2.14. Taxes........................................................................ 45
2.15. Sharing of Payments, Etc..................................................... 48
2.16. Letter of Credit Facility.................................................... 49
2.17. Swing Loans.................................................................. 55
2.18. Cash Collateral Account and Cash Management System........................... 56
2.19. Substitution of Lenders...................................................... 56
ARTICLE III
CONDITIONS OF EFFECTIVENESS.......................................... 58
3.1. Conditions Precedent to the Effectiveness of This
Agreement.................................................................... 58
3.2. Additional Conditions to the Effectiveness of This
Agreement.................................................................... 60
3.3. Conditions Precedent to Each Loan and Letter of
Credit....................................................................... 63
ARTICLE IV
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SECTION PAGE
REPRESENTATIONS AND WARRANTIES....................................... 64
4.1. Corporate Existence; Compliance with Law..................................... 64
4.2. Corporate Power; Authorization; Enforceable
Obligations.................................................................. 64
4.3. Taxes........................................................................ 65
4.4. Full Disclosure.............................................................. 67
4.5. Financial Matters............................................................ 67
4.6. Litigation................................................................... 68
4.7. Margin Regulations........................................................... 68
4.8. ERISA........................................................................ 68
4.9. Liens........................................................................ 69
4.10. No Burdensome Restrictions; No Defaults...................................... 70
4.11. No Other Ventures............................................................ 70
4.12. Securitization Documents; Interest Rate Contracts............................ 70
4.13. Investment Company Act....................................................... 71
4.14. Public Utility Holding Company Act........................................... 71
4.15. Security Interests........................................................... 71
4.16. Insurance.................................................................... 71
4.17. Use of Proceeds.............................................................. 71
4.18. Environmental Protection..................................................... 72
4.19. Intellectual Property........................................................ 73
4.20. Leased Property.............................................................. 74
4.21. Certain Indebtedness......................................................... 74
4.22. Real Property................................................................ 74
4.23. Restricted Payments.......................................................... 74
4.24. Obligations with Respect of Gift Certificates................................ 75
ARTICLE V
FINANCIAL COVENANTS.................................................. 75
5.1. Fixed Charge Coverage Ratio.................................................. 75
5.2. Total Indebtedness........................................................... 75
5.3. Interest Coverage Ratio...................................................... 75
5.4. Capital Expenditures......................................................... 76
ARTICLE VI
AFFIRMATIVE COVENANTS................................................ 76
6.1. Compliance with Laws, Etc.................................................... 76
6.2. Conduct of Business.......................................................... 76
6.3. Payment of Taxes, Etc........................................................ 77
6.4. Maintenance of Insurance..................................................... 77
6.5. Preservation of Corporate Existence, Etc..................................... 77
6.6. Access....................................................................... 78
6.7. Keeping of Books............................................................. 78
6.8. Maintenance of Properties, Etc............................................... 78
6.9. Application of Proceeds...................................................... 78
6.10. Financial Statements......................................................... 79
6.11. Reporting Requirements....................................................... 81
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SECTION PAGE
6.12. Employee Plans............................................................... 84
6.13. Fiscal Year.................................................................. 84
6.14. Borrowing Base Determination................................................. 84
6.15. Certain Covenants Regarding the Receivables
Securitization............................................................ 85
6.16. Environmental Matters........................................................ 86
6.17. Termination of Receivables Securitization.................................... 86
6.18. Reduction of Subordinated Note............................................... 87
6.19. Collection Account Letters................................................... 87
ARTICLE VII
NEGATIVE COVENANTS................................................... 87
7.1. Liens, Etc................................................................... 87
7.2. Indebtedness................................................................. 89
7.3. Restricted Payments.......................................................... 90
7.4. Mergers, Stock Issuances, Sale of Assets, Etc................................ 91
7.5. Investments in Other Persons................................................. 92
7.6. Change in Nature of Business................................................. 93
7.7. Modification of Securitization Documents, Etc................................ 93
7.8. Modification of Material Agreements.......................................... 94
7.9. Compliance with ERISA........................................................ 94
7.10. Accounting Changes........................................................... 95
7.11. Transactions with Affiliates................................................. 95
7.12. Adverse Transactions......................................................... 96
7.13. Cancellation of Indebtedness Owed to It...................................... 96
7.14. No Negative Pledge........................................................... 96
7.15. Capital Structure............................................................ 96
7.16. No Speculative Transactions.................................................. 96
7.17. Environmental Matters........................................................ 96
7.18. Change in Ownership Under Section 382 of the Code............................ 97
7.19. Contingent Obligations....................................................... 97
ARTICLE VIII
EVENTS OF DEFAULT.................................................... 97
8.1. Events of Default............................................................ 97
8.2. Remedies.....................................................................100
8.3 Actions in Respect of Letters of Credit......................................101
ARTICLE IX
THE AGENT............................................................102
9.1. Authorization and Action.....................................................102
9.2. Agent's Reliance, Etc........................................................103
9.3. CUSA and Affiliates..........................................................103
9.4. Lender Credit Decision.......................................................104
9.5. Indemnification..............................................................104
9.6. Successor Agent..............................................................105
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SECTION PAGE
ARTICLE X
MISCELLANEOUS........................................................105
10.1. Amendments, Etc...................................................................105
10.2. Notices, Etc......................................................................106
10.3. No Waiver; Remedies...............................................................107
10.4. Costs; Expenses; Indemnities......................................................107
10.5. Right of Set-off..................................................................110
10.6. Binding Effect....................................................................111
10.7. Assignments and Participations....................................................111
10.8. Governing Law.....................................................................115
10.9. Submission to Jurisdiction; Service of Process....................................115
10.10. Section Titles....................................................................115
10.11. Execution in Counterparts.........................................................116
10.12. Entire Agreement..................................................................116
10.13. Confidentiality...................................................................116
10.14. Acknowledgments...................................................................116
10.15. Waiver of Trial by Jury...........................................................117
10.16. Surrender of Original Notes.......................................................117
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SCHEDULES
Schedule I - Commitment
Schedule II - Applicable Lending Offices
and Addresses for Notices
Schedule III - Addresses for Notices to the Issuers
Schedule IV - Advance Rates
Schedule V - Securitization Documents
Schedule 1.1 - Disposable Real Property
Schedule 2.16(b) - Letters of Credit Outstanding
Schedule 3.2(a) - Other Secured Lenders
Schedule 4.3(b) - Tax Returns
Schedule 4.3(d) - Open Tax Matters
Schedule 4.6 - Disclosed Litigation
Schedule 4.8(b) - Contribution Failures
Schedule 4.8(d) - ERISA Actions
Schedule 4.11 - Other Ventures
Schedule 4.12(b) - Swap Agreements
Schedule 4.18 - Environmental Protection
Schedule 4.20 - Leased Property
Schedule 4.21 - Certain Indebtedness
Schedule 4.22 - Real Property
Schedule 6.11(p) - Ownership of Stock
Schedule 6.19 - Collection Account Banks
Schedule 7.1(j) - EBWVA Liens
Schedule 7.5 - Existing Investments
Schedule 7.19 - EBWVA Contingent Liabilities
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EXHIBITS
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Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Conversion or Continuation
Exhibit D - Form of Letter of Credit Request
Exhibit E - Form of Borrowing Base Certificate
Exhibit F - Form of Bee-Gee Guaranty
Exhibit G - Form of Chargit Guaranty
Exhibit H - Form of EBWVA Guaranty
Exhibit I - Form of Amended and Restated Security
Agreement
Exhibit J - Form of Opinion of Counsel for the Loan
Parties
Exhibit K - Form of Assignment and Acceptance
Exhibit L - Form of Store Account Letter
Exhibit M - Letter of Credit Reimbursement Agreement
Exhibit N - Form of Borrower Pledge Agreement
Exhibit O - Form of Chargit Pledge Agreement
Exhibit P - Form of Local Bank Blocked Account Letter
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AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 27,
1998, among THE XXXXX-XXXXXXX STORES CORP., an Ohio corporation (the
"BORROWER"), the financial institutions listed on the signature pages hereof as
lenders hereunder (each individually a "LENDER" and collectively the "LENDERS"),
Citibank, N.A., as issuer ("CITIBANK"), and CITICORP USA, INC. ("CUSA"), as
agent for the Lenders, the Issuer (as defined herein) and the Swing Loan Bank
(in such capacity, the "AGENT") and as Swing Loan Bank (as defined herein).
W I T N E S S E T H:
-------------------
WHEREAS, the Borrower is currently party to a Credit
Agreement, dated as of December 30, 1997, with certain of the Lenders, Citibank
and CUSA, as amended to the date hereof (the "Old Credit Agreement"); and
WHEREAS, the parties to the Old Credit Agreement wish to amend
and restate in its entirety the Old Credit Agreement, including for the purpose
of increasing the Commitments of the Lenders to $150,000,000; and
WHEREAS, the Lenders are willing to make funds available for
such purposes upon the terms and subject to the conditions set forth herein; and
WHEREAS, the Borrower has also requested that Citibank provide
the Borrower with letters of credit and Citibank is willing to issue letters of
credit upon the terms and subject to the conditions contained herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants hereinafter contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. DEFINED TERMS. As used in this Agreement, the following
terms have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
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"ACCOUNT" means any "account," as such term is defined in
Section 9-106 of the UCC, now owned or hereafter acquired by any Loan Party.
"ACCOUNT DEBTOR" means any "account debtor," as such term is
defined in Section 9-105(1)(a) of the UCC.
"ACQUISITION SUB" means The Xxxxx-Xxxxxxx
Acquisition Corp., a West Virginia corporation and wholly-
owned subsidiary of the Borrower.
"ADVANCE RATE" means, at any time, the rates set forth on
Schedule IV as such rates may be increased or decreased from time to time by the
Agent in its sole discretion, exercised reasonably; PROVIDED, HOWEVER, that the
Agent shall not increase such rates above the rates set forth on Schedule IV as
of the Effective Date without the consent of all of the Lenders.
"AFFILIATE" means, as to any Person, any other Person which,
directly or indirectly, controls, is controlled by or is under common control
with such Person and includes each officer or director or general partner of
such Person, and each Person who is the beneficial owner of 10% or more of any
class of voting Stock of such Person. For the purposes of this definition,
"control" means the possession of the power to direct or cause the direction of
management and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.
"AGREEMENT" means this Amended and Restated Credit Agreement,
together with all Exhibits and Schedules hereto, as the same may be amended,
supplemented or otherwise modified from time to time.
"AMENDED AND RESTATED SECURITY AGREEMENT" means an agreement,
substantially in the form of EXHIBIT I, executed by the Borrower and the
Guarantors, as such agreement may be amended, supplemented or modified from time
to time.
"APPLICABLE BASE RATE MARGIN" means, means, (i) for the period
from the Effective Date through July 31, 1998, 75.0 bps per annum; (ii) for the
period from August 1, 1998 through January 31, 1999, except as provided below,
the Applicable Base Rate Margin set forth below; PROVIDED that such Applicable
Base Rate Margin shall not be less than 37.5 bps per annum, EXCEPT that if the
Borrower has consummated a Qualified Public Offering prior to August 15, 1998
and, after giving pro forma effect to the application of the proceeds of such
Qualified Public Offering pursuant to the
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terms of the Facility as if such proceeds had been applied on or before August
1, 1998 (solely for the purpose of determining the Applicable Base Rate Margin
as of the date of the consummation of such Qualified Public Offering), the ratio
of Debt, after such application, to EBITDA for the four full fiscal quarters
ended prior to the date such Qualified Public Offering is consummated is less
than 4.00, the Applicable Base Rate Margin from the date of the consummation of
such Qualified Public Offering through October 31, 1998 shall be 37.5 bps; and
(iii) for each subsequent year, except as provided below and subject to Section
2.9(d), the Applicable Base Rate Margin will be as set forth in the following
table:
Average Total
Debt/EBITDA (previous Applicable Base Rate
12 Mos.) Margin (Bps)
------------------------ --------------------
greater than or equal to 4.00 75.0
greater than or equal to 3.50 less than 4.00 37.5
greater than or equal to 3.00 less than 3.50 12.5
greater than or equal to 2.50 less than 3.00 0
greater than or equal to 2.00 less than 2.50 0
greater than or equal to 1.75 less than 2.00 0
PROVIDED, HOWEVER, that as long as the Over-Advance Amount shall be greater than
zero, the Applicable Base Rate Margin shall be no less than 37.5 bps.
"APPLICABLE EURODOLLAR RATE MARGIN" means, (i) for the period
from the Effective Date through July 31, 1998, 175.0 bps per annum; (ii) for the
period from August 1, 1998 through January 31, 1999, except as provided below,
the Applicable Eurodollar Rate Margin set forth below; PROVIDED that such
Applicable Eurodollar Rate Margin shall not be less than 137.5 bps per annum,
EXCEPT that if the Borrower has consummated a Qualified Public Offering prior to
August 15, 1998 and, after giving pro forma effect to the application of the
proceeds of such Qualified Public Offering pursuant to the terms of the Facility
as if such proceeds had been applied on or before August 1, 1998 (solely for the
purpose of determining the Applicable Eurodollar Rate Margin as of the date of
the consummation of such Qualified Public Offering), the ratio of Debt, after
such application, to EBITDA for the four full fiscal quarters ended prior to the
date such Qualified Public Offering is consummated is less than 4.00, the
Applicable Eurodollar Rate Margin from the date of the consummation of such
Qualified Public Offering through October 31, 1998 shall be 137.5 bps; and (iii)
for each subsequent year,
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except as provided below and subject to Section 2.9(d), the Applicable
Eurodollar Margin will be as set forth in the following table:
Average Total
Debt/EBITDA (previous Applicable Eurodollar
12 Mos.) Margin (Bps)
----------------------------- ----------------------
greater than or equal to 4.00 175.0
greater than or equal to 3.50 less than 4.00 137.5
greater than or equal to 3.00 less than 3.50 112.5
greater than or equal to 2.50 less than 3.00 87.5
greater than or equal to 2.00 less than 2.50 75.0
greater than or equal to 1.75 less than 2.00 62.5
PROVIDED, HOWEVER, that as long as the Over-Advance Amount shall be greater than
zero, the Applicable Eurodollar Rate Margin shall be no less than 137.5 bps.
"APPLICABLE LENDING OFFICE" means, with respect to each
Lender, its Domestic Lending Office in the case of a Base Rate Loan and its
Eurodollar Lending Office in the case of a Eurodollar Rate Loan.
"APPLICABLE MARGIN" means the Applicable Base Rate
Margin and the Applicable Eurodollar Rate Margin.
"ASSET SALE" means any sale or other disposition, or series of
sales or other dispositions (including, without limitation, by merger or
consolidation, and whether by operation of law or otherwise) made on or after
the Effective Date by the Borrower or any of its Subsidiaries to any Person,
except: (i) sales by the Borrower to Chargit and sales by Chargit to El-Bee of
Chargit Receivables, (ii) sales by EBWVA to El-Bee of the EBWVA Receivables,
(iii) sales by the Borrower and its Subsidiaries of Inventory or obsolete or
used Equipment in the ordinary course of business, and (iv) sales by EBWVA of
Inventory, Equipment and Real Property in connection with disposition of not
more than ten stores owned by EBWVA and other owned Real Property of EBWVA as
set forth on Schedule 1.1, which Inventory, Equipment and Real Property is
located at or on the site of such disposed stores.
"ASSET SALE PROCEEDS" means, with respect to any Asset Sale,
the aggregate amount of cash received from time to time by or on behalf of such
Person in connection therewith after deducting therefrom only (a) reasonable
expenses incurred directly in connection with such transaction, including,
without limitation, reasonable and
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customary brokerage commissions, underwriting fees and discounts, legal and
accounting fees and expenses, finder's fees and other similar fees and
commissions, (b) the amount of taxes payable in connection with or as a result
of such transaction, (c) the amount of any Indebtedness secured by a Lien on
such asset that, by the terms of such Indebtedness, is required to be repaid
upon such disposition and (d) amounts received with respect to the sublease of
any asset to the extent such amounts received are paid to the lessor of such
asset, in each case to the extent, but only to the extent, that the amounts so
deducted are, at the time of receipt of such cash, actually paid to a Person
that is not an Affiliate of the Borrower and are properly attributable to such
transaction or to the asset that is the subject thereof; PROVIDED, HOWEVER, that
Asset Sale Proceeds shall not include any proceeds received from a
Sale/Leaseback Transaction where the property was owned by the Borrower or a
Subsidiary of the Borrower for less than one year.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the Agent, in
substantially the form of EXHIBIT K.
"ATTRIBUTED VALUE" means, at any time, the value of all
Eligible Inventory computed at the lower of market or cost on a first in first
out basis. Unless disputed by the Agent, the most recent Borrowing Base
Certificate delivered to the Agent pursuant to Section 6.10(e) shall be prima
facie evidence of such value.
"AVAILABLE CREDIT" means, at any time, an amount equal to (a)
the lower of (i) the then effective Commitments of the Lenders and (ii) the sum
of (x) the Borrowing Base at such time and (y) the Over-Advance Amount, MINUS
(b) the sum of (i) the principal amount of the Loans outstanding at such time,
and (ii) the Letter of Credit Obligations outstanding at such time.
"AVERAGE TOTAL DEBT" means, for any period of four consecutive
Fiscal Quarters, the average of the month-end balances of Debt of the Borrower
outstanding during such four Fiscal Quarters.
"BANKRUPTCY CODE" means title 11, United States Code, as
amended from time to time.
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"BANKRUPTCY COURT" means the United States Bankruptcy Court for
the Southern District of Ohio, Western Division.
"BASE RATE" means, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time, which rate per annum shall be
equal at all times to the highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate; and
(b) the sum (adjusted to the nearest 1/4 of one percent or, if
there is no nearest 1/4 of one percent, to the next higher 1/4 of one percent)
of (i) 1/2 of one percent per annum, PLUS (ii) the rate per annum obtained by
dividing (A) the latest three-week moving average of secondary market morning
offering rates in the United States for three-month certificates of deposit of
major United States money market banks, such three-week moving average being
determined weekly on each Monday (or, if any such day is not a Business Day, on
the next succeeding Business Day) for the three-week period ending on the
previous Friday by Citibank on the basis of such rates reported by certificate
of deposit dealers to and published by the Federal Reserve Bank of New York or,
if such publication shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York certificate of deposit
dealers of recognized standing selected by Citibank, by (B) a percentage equal
to 100% MINUS the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal reserve
requirement) for Citibank in respect of liabilities consisting of or including
(among other liabilities) three-month U.S. dollar non-personal time deposits in
the United States, PLUS (iii) the average during such three-week period of the
maximum annual assessment rates payable to the Federal Deposit Insurance
Corporation (or any successor) by banks which are members of the Bank Insurance
Fund for insuring U.S. dollar deposits in the United States; and
(c) the sum (adjusted to the nearest 1/4 of one percent or, if
there is no nearest 1/4 of one percent, to the next higher 1/4 of one percent)
of (i) 1/2 of one percent per annum PLUS (ii) the Federal Funds Rate.
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"BASE RATE LOAN" means any outstanding principal amount of the
Loans of any Lender that bears interest with reference to the Base Rate.
"BEE-GEE" means The Bee-Gee Shoe Corp., an Ohio
corporation and wholly-owned Subsidiary of the Borrower.
"BLOCKED ACCOUNT LETTER" means a letter agreement, in
substantially the form of EXHIBIT P (with such changes as may be agreed to by
the Agent), executed by the Borrower and/or any Subsidiary and acknowledged and
agreed to by a depository bank.
"BORROWER PLEDGE AGREEMENT" means an agreement substantially
in the form of EXHIBIT N, executed by the Borrower, as such agreement may be
amended, supplemented or modified from time to time.
"BORROWING" means, collectively, a Revolving
Credit Borrowing and a Swing Loan Borrowing.
"BORROWING BASE" means, at any time, (a) the sum of (i) 95% of
the cash on deposit at such time in the Cash Collateral Account and (ii) the
product of the applicable Advance Rate at such time multiplied by the Attributed
Value of Eligible Inventory at such time LESS (b) such reserves as the Agent, in
its sole discretion in accordance with its customary practice, exercised
reasonably, deems appropriate.
"BORROWING BASE CERTIFICATE" means a certificate of the
Borrower substantially in the form of EXHIBIT E.
"BORROWING BASE DEFICIENCY" means, at any time, the failure of
the Borrowing Base to exceed the sum of (i) the then outstanding Loans PLUS (ii)
the then outstanding Letter of Credit Obligations.
"BPS" means basis points, i.e., one-hundredth of
one percent (.01%).
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable Business
Day relates to a Eurodollar Rate Loan, a day on which dealings are also carried
on in the London interbank market.
"CAPITAL EXPENDITURES" means, for any Person for any period,
without duplication, the aggregate of (i) all expenditures by such Person and
its consolidated Subsidiaries, except interest capitalized during
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construction, during such period for property, plant or equipment, including,
without limitation, renewals, improvements, replacements and capitalized
repairs, that would be reflected as additions to property, plant or equipment on
a consolidated balance sheet of such Person and its Subsidiaries prepared in
conformity with GAAP and (ii) the principal amount of all Indebtedness incurred
or assumed in connection with any such additions to property, plant and
equipment. For the purpose of this definition, the purchase price of equipment
which is acquired simultaneously with the trade-in of existing equipment owned
by such Person or any of its Subsidiaries or with insurance proceeds shall be
included in Capital Expenditures only to the extent of the gross amount of such
purchase price less the credit granted by the seller of such equipment being
traded in at such time or the amount of such proceeds, as the case may be.
"CAPITALIZED LEASE" means, as 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 conformity with GAAP.
"CAPITALIZED LEASE OBLIGATIONS" means, as to any Person, the
capitalized amount of all obligations of such Person or any of its Subsidiaries
under Capitalized Leases, as determined on a consolidated basis in conformity
with GAAP.
"CASH COLLATERAL ACCOUNT" has the meaning
specified in Section 2.18.
"CASH EQUIVALENTS" means any of the following, to the extent
owned by any Loan Party free and clear of all Liens and having a maturity of not
greater than 90 days from the date of acquisition thereof: (a) readily
marketable direct obligations of the Government of the United States or any
agency or instrumentality thereof or obligations unconditionally guaranteed by
the full faith and credit of the Government of the United States, (b) insured
certificates of deposit of or time deposits with any commercial bank that is a
Lender or a member of the Federal Reserve System, issues (or the parent of which
issues) commercial paper rated as described in clause (c), is organized under
the laws of the United States or any State thereof and has combined capital and
surplus of at least $250,000,000, or (c) commercial paper in an aggregate amount
of no more than $5,000,000 per issuer outstanding at any time, issued by any
corporation organized under the laws of any State of the United States and rated
at least "Prime-1"
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(or the then equivalent grade) by Xxxxx'x Investors Service, Inc. or "A-1" (or
the then equivalent grade) by Standard & Poor's Ratings Group.
"CHANGE OF CONTROL" means any one of the following
events:
(i) the merger or consolidation of the Borrower with or into
another Person or the merger of another Person with or into the Borrower, or the
sale of all or substantially all the assets of the Borrower to another Person,
and, in the case of any such merger or consolidation, the securities of the
Borrower that are outstanding immediately prior to such transaction and which
represent 100% of the aggregate voting power of the Borrower are changed into or
exchanged for cash, securities or property, unless pursuant to such transaction
such securities are changed into or exchanged for, in addition to any other
consideration, securities of the surviving corporation that represent
immediately after such transaction, at least a majority of the aggregate voting
power of the surviving corporation;
(ii) any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934) is or becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of
1934) directly or indirectly, of securities representing more than 40% of the
total voting power of the Company, except that such person shall be deemed to
have "beneficial ownership" of all shares that such person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time;
(iii) individuals who, on the Effective Date, constitute the Board
of Directors of the Borrower (the "Incumbent Directors") cease for any reason to
constitute at least a majority of the Board of Directors of the Borrower,
provided that any person becoming a director subsequent to the Effective Date
whose election or nomination for election was approved by a vote of at least
two-thirds of the Incumbent Directors then in office (either by a specific vote
or by approval of the proxy statement of the Borrower in which such individual
is named as a nominee for director, without objection to such nomination) shall
be an Incumbent Director; PROVIDED, HOWEVER, that no individual elected or
nominated as a director of the Borrower initially as a result of an actual or
threatened election contest with respect to directors or any other actual or
threatened solicitation of proxies or consents by or on behalf of any
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person other than the Board of Directors of the Borrower shall be deemed to be
an Incumbent Director.
"CHARGIT" means The El-Bee Chargit Corp., an Ohio corporation
and a wholly-owned Subsidiary of the Borrower.
"CHARGIT PLEDGE AGREEMENT" means an agreement substantially in
the form of EXHIBIT O, executed by Chargit, as such agreement may be amended,
supplemented or modified from time to time.
"CHARGIT RECEIVABLES" means the private-label credit card
Receivables sold or otherwise conveyed by the Borrower to Chargit and by Chargit
to El-Bee pursuant to the Securitization Documents.
"CHATTEL PAPER" means any "chattel paper," as such term is
defined in Section 9-105(1)(b) of the UCC, now owned or hereafter acquired by
any Loan Party.
"CITIBANK" has the meaning specified in the
preamble hereto.
"CODE" means the Internal Revenue Code of 1986 (or any
successor legislation thereto), as amended from time to time.
"COLLATERAL" means all property and interests in property and
proceeds thereof now owned or hereafter acquired by any Loan Party in or upon
which a Lien is granted under any of the Collateral Documents.
"COLLATERAL DOCUMENTS" means the Amended and Restated Security
Agreement, the Borrower Pledge Agreement, the Chargit Pledge Agreement and any
other document executed and delivered by a Loan Party granting a Lien on any of
its property to secure payment of the Obligations.
"COMMITMENT" means, as to each Lender, the commitment of such
Lender to make Revolving Credit Loans to the Borrower pursuant to Section 2.1 in
the aggregate principal amount outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule I hereto under the caption "Commitment,"
as such amount may be reduced or modified pursuant to this Agreement.
"COMMITMENT FEE" has the meaning specified in
Section 2.3(a).
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"CONTINGENT OBLIGATION" means, as applied to any Person, any
direct or indirect liability, contingent or otherwise, of such Person with
respect to any Indebtedness or Contractual Obligation of another Person, if the
purpose or intent of such Person in incurring the Contingent Obligation is to
provide assurance to the obligee of such Indebtedness or Contractual Obligation
that such Indebtedness or Contractual Obligation will be paid or discharged, or
that any agreement relating thereto will be complied with, or that any holder of
such Indebtedness or Contractual Obligation will be protected (in whole or in
part) against loss in respect thereof. Contingent Obligations of a Person
include, without limitation, (a) the direct or indirect guarantee, endorsement
(other than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such Person of an
obligation of another Person, and (b) any liability of such Person for an
obligation of another Person through any agreement (contingent or otherwise) (i)
to purchase, repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such obligation
(whether in the form of a loan, advance, stock purchase, capital contribution or
otherwise), (ii) to maintain the solvency or any balance sheet item, level of
income or financial condition of another Person, (iii) to make take-or-pay or
similar payments, if required, regardless of non-performance by any other party
or parties to an agreement, (iv) to purchase, sell or lease (as lessor or
lessee) property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such obligation or to assure the holder
of such obligation against loss, or (v) to supply funds to or in any other
manner invest in such other Person (including, without limitation, to pay for
property or services irrespective of whether such property is received or such
services are rendered), if in the case of any agreement described under
subclause (i), (ii), (iii), (iv) or (v) of this sentence the primary purpose or
intent thereof is as described in the preceding sentence. The amount of any
Contingent Obligation shall be equal to the amount of the obligation so
guaranteed or otherwise supported.
"CONTRACTUAL OBLIGATION" of any Person means any obligation,
agreement, undertaking or similar provision of any security issued by such
Person or of any agreement, undertaking, contract, lease, indenture, mortgage,
deed of trust or other instrument (excluding a Loan Document) to which such
Person is a party or by which it or any of its
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property is bound or to which any of its properties is subject.
"CSFB LEASE AGREEMENTS" means (1) a lease by and between
Credit Suisse First Boston or its designee ("First Boston") and the Borrower
setting forth the terms and conditions pursuant to which First Boston will lease
to the Borrower, and the Borrower will lease from First Boston, the Xxxxxxxxxx
Sale/Leaseback Property (as defined in the definition of "CSFB Sale/Leaseback
Properties" below), and (2) a lease by and between First Boston and the Borrower
setting forth the terms and conditions pursuant to which First Boston will lease
to the Borrower, and the Borrower will lease from First Boston, the Erie
Sale/Leaseback Property (as defined in the definition of "CSFB Sale/Leaseback
Properties" below).
"CSFB SALE/LEASEBACK" means the transactions pursuant to which
First Boston acquires the CSFB Sale/Leaseback Properties and leases the CSFB
Sale/Leaseback Properties to the Borrower on terms and conditions set forth in
the CSFB Lease Agreements.
"CSFB SALE/LEASEBACK PROPERTIES" means (1) that certain Dayton
Mall property consisting of an approximately 212,000 square foot retail store
and approximately 15.619 acres located in Xxxxxxxxxx County, Ohio (the
"XXXXXXXXXX SALE/LEASEBACK PROPERTY") and (2) that certain Millcreek Mall
property consisting of an approximately 119,814 square foot store and
approximately 8.4 acres located in Erie County, Pennsylvania (the "ERIE
SALE/LEASEBACK PROPERTY"), each as more specifically described in (1) that
certain Purchase and Sale Agreement, dated as of February 27, 1998, by and among
Mercantile Properties, Inc., Mercantile Stores Company, Inc., the Borrower and
Chicago Title Insurance Company and (2) that certain Purchase and Sale
Agreement, dated as of March 3, 1998, by and between Lazarus PA, Inc.
and the Borrower.
"CUSA" shall have the meaning provided in the
preamble hereto.
"DEBT" means the sum of all (A) obligations of the type set
forth in clauses (i) through (vii) of the definition of Indebtedness, including,
without limitation, the principal amount of all outstanding Loans and the amount
of all outstanding Letter of Credit Obligations, but in no event shall Debt
include obligations of the type permitted by Section 7.2(ii) and (B) Receivables
Securitization Attributed Indebtedness.
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"DEFAULT" means any event which with the passing of time or
the giving of notice or both would become an Event of Default.
"DOL" means the United States Department of Labor,
or any successor thereto.
"DOLLARS" and the sign "$" each mean the lawful money of the
United States of America.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule II or such other office of such Lender as such Lender may
from time to time specify to the Borrower and the Agent.
"EBITDA" means, for any Person for any period, the Net Income
(Loss) of such Person for such period taken as a single accounting period, PLUS
(a) the sum of the following amounts of such Person and its Subsidiaries for
such period determined on a consolidated basis in conformity with GAAP to the
extent included in the determination of such Net Income (Loss): (i) depreciation
expense, (ii) amortization expense, (iii) Net Interest Expense, (iv)
Reorganization Expenses, (v) income tax expense, (vi) losses that are
extraordinary items under GAAP (and other losses on Asset Sales not otherwise
included in extraordinary losses determined on a consolidated basis in
conformity with GAAP), (vii) non-recurring and non-cash writeoffs of deferred
and unamortized assets and (ix) non-cash and recurring charges related to
changes in the market value of any interest rate contract (to the extent not
included in Net Interest Expense) and (x) non-recurring charges relating to the
Stone & Xxxxxx Acquisition; LESS (b) the sum of the following amounts of such
Person and its Subsidiaries determined on a consolidated basis in conformity
with GAAP to the extent included in the determination of such Net Income (Loss):
(i) gains that are extraordinary items under GAAP (and in the case of the
Borrower and its Subsidiaries, other gains on Asset Sales not otherwise included
in extraordinary gains determined on a consolidated basis in conformity with
GAAP), (ii) the Net Income (Loss) of any other Person that is accounted for by
the equity method of accounting except to the extent of the amount of dividends
or distributions paid to such Person, (iii) the Net Income (Loss) of any other
Person acquired by such Person or a Subsidiary of such Person in a transaction
accounted for as a pooling of interests for any period prior to the date of such
acquisition and (iv) income tax benefit.
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"EBWVA" means Xxxxx-Xxxxxxx West Virginia, Inc., a West
Virginia corporation, formerly known as Stone & Xxxxxx, successor by merger to
Acquisition Sub, and any successor thereto.
"EBWVA RECEIVABLES" means the private-label credit card
receivables sold or otherwise conveyed by EBWVA to Chargit pursuant to the
Securitization Documents.
"EBWVA SALE PROCEEDS" means, with respect to the sale of not
more than ten stores and related Real Property and the other owned Real Property
listed on Schedule 1.1 owned by EBWVA, the aggregate amount of cash received
from time to time by or on behalf of any Loan Party in connection therewith
after deducting therefrom only (a) reasonable expenses incurred directly in
connection with such transaction, including, without limitation, reasonable and
customary brokerage commissions, legal and accounting fees and expenses,
finder's fees and other similar fees and commissions, (b) the amount of taxes
payable in connection with or as a result of such transaction and (c) the amount
of any Indebtedness secured by a Lien on such store or Real Property that, by
the terms of such Indebtedness, is required to be repaid upon such disposition.
"EFFECTIVE DATE" means July 27, 1998 or such later date on
which the conditions set forth in Sections 3.1 and 3.2 hereto have been
satisfied or waived.
"EL-BEE" means The El-Bee Receivables Corporation,
a Delaware corporation and wholly-owned Subsidiary of
Chargit.
"ELIGIBLE ASSIGNEE" means (i) a commercial bank organized
under the laws of the United States, or any State thereof, and having total
assets in excess of $5,000,000,000; (ii) a commercial bank organized under the
laws of any other country which is a member of the OECD, or a political
subdivision of any such country, and having total assets in excess of
$5,000,000,000, provided that such bank is acting through a branch or agency
located in the country in which it is organized or another country which is also
a member of the OECD or the Cayman Islands; (iii) the central bank of any
country which is a member of the OECD; (iv) a corporation organized under the
laws of the United States, or any State thereof, and having total assets in
excess of $3,000,000,000; (v) an insurance company organized under the laws of
the United States, or any State thereof, and having total assets in excess of
$5,000,000,000; (vi) a finance company, insurance company or other financial
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institution or fund (whether a corporation, partnership, trust or other entity)
that is engaged in making, purchasing or otherwise investing in commercial loans
in the ordinary course of its business and having total assets in excess of
$3,000,000,000; (vii) any Lender; (viii) any Affiliate of any Lender; and (ix)
if an Event of Default has occurred and is continuing, "ELIGIBLE ASSIGNEE" shall
also mean any Person other than a Person a substantial portion of whose business
competes with the Borrower or any Subsidiary or Affiliate of such Person.
"ELIGIBLE INVENTORY" means such of the Inventory of the
Borrower, EBWVA and Bee-Gee as constitutes Collateral in which the Agent has a
fully perfected first priority security interest and, as the Agent, in its sole
discretion exercised reasonably, deems eligible.
"ENVIRONMENTAL LAWS" means all federal, state and local laws
(including common law), statutes, ordinances, rules, regulations and other
legally binding requirements, now or hereafter in effect, and in each case as
amended or supplemented from time to time, and any judicial or administrative
interpretation thereof, including, without limitation, any judicial or
administrative order, consent decree or judgment relating to the regulation and
protection of human health, safety, the environment or natural resources
(including, without limitation, ambient air, surface water, groundwater,
wetlands, land surface or subsurface strata, wildlife, aquatic species and
vegetation). Environmental Laws include but are not limited to the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C. ss. 9601 ET SEQ.) ("CERCLA"); the Hazardous Material Transportation Act,
as amended (49 U.S.C. ss. 180 ET SEQ.); the Federal Insecticide, Fungicide, and
Rodenticide Act, as amended (7 U.S.C. ss. 136 ET SEQ.); the Resource
Conservation and Recovery Act, as amended (42 U.S.C. ss. 6901 ET SEQ.) ("RCRA");
the Toxic Substance Control Act, as amended (42 U.S.C. ss. 7401 ET SEQ.); the
Clean Air Act, as amended (42 U.S.C. ss. 740 ET SEQ.); the Federal Water
Pollution Control Act, as amended (33 U.S.C. ss. 1251 ET SEQ.); the Occupational
Safety and Health Act, as amended (29 U.S.C. ss. 651 ET SEQ.); and the Safe
Drinking Water Act, as amended (42 U.S.C. ss. 300f ET SEQ.), and their state and
local counterparts or equivalents and any transfer of ownership notification or
approval statute, including, without limitation, the New Jersey Industrial Site
Recovery Act (N.J. Stat. Xxx.
ss. 13:1K-6 ET SEQ.) ("ISRA").
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"ENVIRONMENTAL LIABILITIES AND COSTS" means, as to any Person,
all liabilities, obligations, responsibilities, Remedial Actions, losses,
damages, punitive damages, consequential damages, treble damages, costs and
expenses (including, without limitation, all fees, disbursements and expenses of
counsel, experts and consultants and costs of investigation and feasibility
studies), fines, penalties, sanctions and interest incurred as a result of any
claim or demand by any other Person, whether based in contract, tort, implied or
express warranty, strict liability, criminal or civil statute, including,
without limitation, any thereof arising under any Environmental Law, Permit,
order or agreement with any Governmental Authority or other Person, and which
relate to any environmental, health or safety condition, or a Release or
threatened Release, and result from the past, present or future operations of,
or ownership of property by, such Person or any of its Subsidiaries.
"ENVIRONMENTAL LIEN" means any Lien in favor of
any Governmental Authority for Environmental Liabilities and
Costs.
"EQUIPMENT" means any "equipment," as such term is defined in
Section 9-109(2) of the UCC, now owned or hereafter acquired by any Loan Party
and, in any event, includes, without limitation, all machinery, equipment,
furnishings, fixtures, vehicles, computers and other electronic data-processing
and office equipment now owned or hereafter acquired by any Loan Party and any
and all additions, substitutions and replacements of any of the foregoing,
wherever located, together with all attachments, components, parts, equipment
and accessories installed thereon or affixed thereto.
"ERISA" means the Employee Retirement Income Security Act of
1974 (or any successor legislation thereto), as amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control with any Loan Party or any of its
Subsidiaries within the meaning of Section 414 (b), (c), (m) or (o) of the Code.
"ERISA EVENT" means (i) a Reportable Event with respect to a
Title IV Plan or a Multiemployer Plan; (ii) the withdrawal of any Loan Party,
any of its Subsidiaries or any ERISA Affiliate from a Title IV Plan subject to
Section 4063 of ERISA during a plan year in which it was a substantial employer,
as defined in Section 4001(a)(2) of ERISA; (iii) the complete or partial
withdrawal of any Loan Party,
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any of its Subsidiaries or any ERISA Affiliate from any Multiemployer Plan; (iv)
the filing of a notice of intent to terminate a Title IV Plan having any
Unfunded Pension Liability or the treatment of a plan amendment as a termination
under Section 4041 of ERISA; (v) the institution of proceedings to terminate a
Title IV Plan or Multiemployer Plan by the PBGC; (vi) the failure to make any
required contribution to a Qualified Plan; or (vii) any other event or condition
which might reasonably be expected to constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
Title IV Plan or Multiemployer Plan or the imposition of any liability under
Title IV of ERISA, other than for PBGC premiums due but not delinquent under
Section 4007 of ERISA.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office" below its
name on Schedule II (or, if no such office is specified, its Domestic Lending
Office) or such other office of such Lender as such Lender may from time to time
specify to the Borrower and the Agent.
"EURODOLLAR RATE" means, for any Interest Period, an interest
rate per annum equal to the rate per annum obtained by dividing (a) the rate of
interest determined by the Agent to be the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in U.S. dollars are offered by
the principal office of Citibank in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before the first
day of such Interest Period in an amount substantially equal to the Eurodollar
Rate Loan of Citibank during such Interest Period and for a period equal to such
Interest Period by (b) a percentage equal to 100% MINUS the Eurodollar Rate
Reserve Percentage for such Interest Period.
"EURODOLLAR RATE LOAN" means any outstanding principal amount
of the Loans of any Lender that, for an Interest Period, bears interest at a
rate determined with reference to the Eurodollar Rate.
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"EURODOLLAR RATE RESERVE PERCENTAGE" for any Interest Period
means the reserve percentage applicable two Business Days before the first day
of such Interest Period under regulations issued from time to time by the Board
of Governors of the Federal Reserve System for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of liabilities
which includes deposits by reference to which the Eurodollar Rate is determined)
having a term equal to such Interest Period.
"EVENT OF DEFAULT" has the meaning specified in
Section 8.1.
"FACILITY" means the aggregate of all of the
Commitments.
"FEDERAL FUNDS RATE" means, 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.
"FISCAL QUARTER" means a fiscal quarter of the Borrower and
its consolidated Subsidiaries for financial accounting purposes.
"FISCAL YEAR" means the period of 52 or 53 weeks, as the case
may be, ending on the Saturday nearest to January 31 of each calendar year.
"FIXED CHARGES" means, for any Person for any period, the sum
of (i) the Net Interest Expense of such Person for such period, (ii) all
principal amounts of Debt having a scheduled due date during such period payable
by such Person and each of its Subsidiaries, (iii) all cash dividends payable by
such Person on preferred stock in respect of such period or payable by any
Subsidiaries of such Person other than to such Person or any of its
Subsidiaries, and (iv) the total federal income tax
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liability actually currently payable by such Person in respect of such period.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and the statements and pronouncements
of the Financial Accounting Standards Board, or in such other statements by such
other entity as may be in general use by significant segments of the accounting
profession, which are applicable to the circumstances as of the date of
determination except that, for purposes of Article V, GAAP shall be determined
on the basis of such principles in effect on the date hereof and consistent with
those used in the preparation of the audited financial statements referred to in
Section 4.5.
"GENERAL INTANGIBLES" means any "general intangibles," as such
term is defined in Section 9-106 of the UCC, now owned or hereafter acquired by
any Loan Party and, in any event, includes, without limitation, all customer
lists, trademarks, patents, rights in intellectual property, licenses, permits,
copyrights, trade secrets, proprietary or confidential information, inventions
(whether patented or patentable or not) and technical information, procedures,
designs, knowledge, know-how, software, data bases, data, skill, expertise,
experience, processes, models, drawings, materials and records, goodwill, rights
of indemnification and all right, title and interest which any Loan Party may
now or hereafter have in or under any Contract (as defined in the UCC), now
owned or hereafter acquired by any Loan Party.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GUARANTORS" means Bee-Gee, Chargit and EBWVA.
"HAZARDOUS MATERIALS" means any substance, material or waste
regulated or forming the basis of liability under any Environmental Law,
including, without limitation, any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos, asbestos containing materials, polychlorinated
biphenyls, radon or any constituent or byproduct of any such substance or waste.
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"INDEBTEDNESS" of any Person means, without duplication, (i)
all indebtedness of such Person for borrowed money (including, without
limitation, reimbursement and all other obligations with respect to surety
bonds, letters of credit and bankers' acceptances, whether or not matured) or
for the deferred purchase price of property or services, (ii) all obligations of
such Person evidenced by notes, bonds, debentures or similar instruments, (iii)
all indebtedness of such Person created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (iv) Capitalized Lease Obligations, (v) all obligations of such
Person to purchase, redeem, retire, defease or otherwise acquire for value any
Stock of such Person, valued, in the case of redeemable preferred stock, at the
greater of its voluntary or involuntary liquidation preference plus related
accrued and unpaid dividends, (vi) all obligations of such Person under Interest
Rate Contracts, and (vii) all Indebtedness referred to in clause (i), (ii),
(iii), (iv), (v) or (vi) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien upon or in property (including, without limitation, and general
intangibles) owned by such Person, even though such Person has not assumed or
become liable for the payment of such Indebtedness provided that the amount of
any such Indebtedness shall not exceed the value of any property so secured,
(viii) in the case of the Borrower, the Obligations, (ix) all liabilities of
such Person for the return of deposits or payments on account, (x) all
liabilities of such Person under Title IV of ERISA, and (xi) all liabilities of
such Person that would be shown on a balance sheet of such Person prepared in
conformity with GAAP including, without limitation, in the case of the Borrower,
the Receivables Securitization Attributable Indebtedness.
"INDEMNITEE" has the meaning specified in
Section 10.4(b).
"INSTRUMENT" means any "instrument," as such term is defined
in Section 9-105(1)(i) of the UCC, now owned or hereafter acquired by any Loan
Party other than instruments that constitute, or are a part of a group of
writings that constitute, Chattel Paper.
"INTEREST PERIOD" means in the case of any
Eurodollar Rate Loan, (i) initially, the period commencing
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on the date such Eurodollar Rate Loan is made or on the date of conversion of a
Base Rate Loan to a Eurodollar Rate Loan and ending one, two or three months
thereafter, as selected by the Borrower in its Notice of Borrowing or Notice of
Conversion or Continuation given to the Agent pursuant to Section 2.2 or 2.7,
and (ii) thereafter, if such Loan is continued, in whole or in part, as a
Eurodollar Rate Loan pursuant to Section 2.7, a period commencing on the last
day of the immediately preceding Interest Period therefor and ending one, two or
three months thereafter, as selected by the Borrower in its Notice of Conversion
or Continuation given to the Agent pursuant to Section 2.7; PROVIDED, HOWEVER,
that all of the foregoing provisions relating to Interest Periods in respect of
Eurodollar Rate Loans are subject to the following:
(A) if any Interest Period would otherwise end on
a day that is not a Business Day, such Interest Period shall
be extended to the next succeeding Business Day, unless, in
the case of Eurodollar Rate Loans only, the result of such
extension would be to extend such Interest Period into another
calendar month, in which event such Interest Period shall end
on the immediately preceding Business Day;
(B) any Interest Period of one month or more that
begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end
on the last Business Day of a calendar month;
(C) the Borrower may not select any Interest
Period which ends after the Termination Date;
(D) the Borrower may not select any Interest
Period in respect of Loans having an aggregate principal
amount of less than $5,000,000; and
(E) there shall be outstanding at any one time no
more than six Interest Periods in the aggregate.
"INTEREST RATE CONTRACTS" means interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements, interest rate
insurance, and other
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agreements or arrangements designed to provide protection
against fluctuations in interest rates.
"INVENTORY" means any "inventory," as such term is defined in
Section 9-109(4) of the UCC, now owned or hereafter acquired by the Borrower or
any of its Subsidiaries, and wherever located, and, in any event, includes,
without limitation, all inventory, merchandise, goods and other personal
property now owned or hereafter acquired by the Borrower or any of its
Subsidiaries which are held for sale or lease or are furnished or are to be
furnished under a contract of service or which constitute raw materials, work in
process or materials used or consumed or to be used or consumed in the business
of the Borrower or any of its Subsidiaries, or the processing, packaging,
delivery or shipping of the same, and all finished goods.
"INVESTMENT" has the meaning specified in
Section 7.5.
"IRS" means the Internal Revenue Service, or any
successor thereto.
"ISSUER" means Citibank or any successor thereto and any other
Lender approved by the Majority Lenders who agrees to issue one or more Letters
of Credit.
"LETTER OF CREDIT" means any letter of credit issued for the
account of the Borrower by an Issuer pursuant to Article II.
"LETTER OF CREDIT OBLIGATIONS" means, at any time, all
liabilities at such time of the Borrower to all Issuers with respect to Letters
of Credit, whether or not any such liability is contingent, and includes the sum
of (i) the Reimbursement Obligations at such time and (ii) the Letter of Credit
Undrawn Amounts at such time.
"LETTER OF CREDIT REIMBURSEMENT AGREEMENT" has the
meaning specified in Section 2.16(d).
"LETTER OF CREDIT REQUEST" has the meaning
specified in Section 2.16(e).
"LETTER OF CREDIT UNDRAWN AMOUNTS" means, at any time, the
aggregate undrawn face amount of all Letters of Credit outstanding at such time.
"LIEN" means any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, encumbrance,
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lien (statutory or other), security interest or preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
intended to assure payment of any Indebtedness or other obligation, including,
without limitation, any conditional sale or other title retention agreement, the
interest of a lessor under a Capitalized Lease Obligation, any financing lease
having substantially the same economic effect as any of the foregoing, and the
filing, under the UCC or comparable law of any jurisdiction, of any financing
statement naming the owner of the asset to which such Lien relates as debtor.
"LOAN" means a Revolving Credit Loan or Swing
Loan.
"LOAN DOCUMENTS" means, collectively, this Agreement, the
Notes, the Subsidiary Guarantees, the Collateral Documents, each Letter of
Credit Reimbursement Agreement and each certificate, agreement or document
executed by a Loan Party and delivered to the Agent or any Lender in connection
with or pursuant to any of the foregoing.
"LOAN PARTY" means the Borrower or any of its Subsidiaries
which executes and delivers a Loan Document and "LOAN PARTIES" means all of
them.
"MAJORITY LENDERS" means, at any time, Lenders holding at
least 51% of the then aggregate unpaid principal amount of the Loans and Letter
of Credit Obligations or, if no Loans or Letter of Credit Obligations are then
outstanding, Lenders having at least 51% of the Commitments.
"MATERIAL ADVERSE CHANGE" means a material adverse change in
any of (i) the condition (financial or otherwise), business, performance,
prospects, operations or properties of the Borrower and its Subsidiaries taken
as a whole, (ii) the legality, validity or enforceability of any Loan Document,
(iii) the perfection or priority of the Liens granted or purported to be granted
by or pursuant to the Loan Documents, (iv) the ability of the Borrower to repay
the Obligations or of any Loan Party to perform its obligations under any Loan
Document or (v) the rights and remedies of the Lenders or the Agent under the
Loan Documents.
"MATERIAL ADVERSE EFFECT" means an effect that results in or
causes, or has a reasonable likelihood of resulting in or causing, a Material
Adverse Change.
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"MIDDLETOWN BONDS" means the Industrial Development First
Mortgage Revenue Bonds in the original aggregate principal amount of $4 million,
issued by the County of Warren, Ohio on May 1, 1976, the proceeds of which were
used to finance the acquisition and construction of the Borrower's Towne Mall
Store located in Franklin, Ohio.
"MIDDLETOWN LEASE PAYMENTS" means the lease payments required
to made by the Borrower to the trustee for holders of the Middletown Bonds
pursuant to that certain Lease, dated May 1, 1976 between the Borrower, as
lessee and the County of Warren, Ohio, as lessor, which lease payments are used
by the trustee of the holders of the Middletown Bonds to pay the scheduled
principal and interest on the Middletown Bonds.
"MORAINE MORTGAGE" means that certain mortgage dated March 26,
1990 by and between the Borrower as mortgagor and Principal Mutual Life
Insurance Company as
mortgagee.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, and to which any Loan Party, any of its
Subsidiaries or any ERISA Affiliate is making, is obligated to make, has made or
been obligated to make, contributions on behalf of participants who are or were
employed by any of them.
"NET INCOME (LOSS)" means, for any Person for any period, the
aggregate net income (or loss) from continuing operations of such Person and its
Subsidiaries for such period, determined on a consolidated basis in conformity
with GAAP.
"NET INTEREST EXPENSE" means, for any Person for any period,
gross interest expense of such Person and its Subsidiaries for such period
determined on a consolidated basis in conformity with GAAP LESS the following
for such Person and its Subsidiaries determined on a consolidated basis in
conformity with GAAP: (a) the sum of (i) interest capitalized during
construction for such period, (ii) interest income (other than in respect of
Chargit Receivables and EBWVA Receivables) for such period and (iii) gains for
such period on Interest Rate Contracts (to the extent not included in interest
income above and to the extent not deducted in the calculation of such gross
interest expense) PLUS the following for such Person and its Subsidiaries
determined on a consolidated basis in conformity with GAAP: (b) the sum of (i)
losses for such period on Interest Rate Contracts (to the extent not
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included in such gross interest expense) and (ii) the amortization of upfront
costs or fees for such period associated with any interest rate contract (to the
extent not otherwise included in gross interest expense).
"NON-FUNDING LENDER" has the meaning specified in
Section 2.13(f).
"NOTES" means the Revolving Credit Notes.
"NOTICE OF BORROWING" has the meaning specified in
Section 2.2(a).
"NOTICE OF CONVERSION OR CONTINUATION" means a
notice in the form of EXHIBIT C hereto.
"OBLIGATIONS" means the Loans, the Letter of Credit
Obligations and all other advances, debts, liabilities, obligations, covenants
and duties owing by the Borrower to the Agent, any Lender, any Issuer, the Swing
Loan Bank, any Affiliate of any of them or any Indemnitee, of every type and
description, present or future, whether or not evidenced by any note, guaranty
or other instrument, arising under this Agreement or under any other Loan
Document, whether or not for the payment of money, whether arising by reason of
an extension of credit, opening or amendment of a Letter of Credit or payment of
any draft drawn thereunder, loan, guaranty, indemnification, foreign exchange
transaction or in any other manner, whether direct or indirect (including,
without limitation, those acquired by assignment), absolute or contingent, due
or to become due, now existing or hereafter arising and however acquired and all
obligations of the Borrower to Citibank under Interest Rate Contracts. The term
"OBLIGATIONS" includes, without limitation, "Obligations," as defined under the
Old Credit Agreement and modified by this Agreement, in existence on the
Effective Date, and all interest, charges, expenses, fees, attorneys' fees and
disbursements and any other sum chargeable to the Borrower under this Agreement
or any other Loan Document and all obligations of the Borrower to cash
collateralize Letter of Credit Obligations.
"OTHER TAXES" has the meaning specified in Section
2.14(b).
"OVER-ADVANCE AMOUNT" means $40,000,000; PROVIDED, HOWEVER,
that (i) upon the consummation of a Qualified Public Offering within eighteen
months after the Effective Date, the Over-Advance Amount shall be reduced dollar
for dollar by the amount of net proceeds to the Borrower from
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