Exhibit 10.1
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CREDIT AGREEMENT
dated as of
December 24, 1997
among
FRANK'S NURSERY & CRAFTS, INC.,
as Borrower,
CYRUS ACQUISITION CORP.,
GENERAL HOST CORPORATION,
The Lenders Party Hereto,
THE CHASE MANHATTAN BANK,
as Administrative Agent,
Syndication Agent, Collateral Agent,
Issuing Bank and Swingline Lender,
and
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
as Documentation Agent
___________________________
CHASE SECURITIES INC.,
as Arranger
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions
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SECTION 1.01. Defined Terms . . . . . . . . . . . . . . . . . 2
SECTION 1.02. Classification of Loans and Borrowings . . . . 27
SECTION 1.03. Terms Generally . . . . . . . . . . . . . . . . 27
SECTION 1.04. Accounting Terms; GAAP . . . . . . . . . . . . 27
ARTICLE II
The Credits
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SECTION 2.01. Commitments . . . . . . . . . . . . . . . . . . 28
SECTION 2.02. Loans and Borrowings . . . . . . . . . . . . . 28
SECTION 2.03. Requests for Borrowings . . . . . . . . . . . . 29
SECTION 2.04. Swingline Loans . . . . . . . . . . . . . . . . 30
SECTION 2.05. Letters of Credit . . . . . . . . . . . . . . . 31
SECTION 2.06. Funding of Borrowings . . . . . . . . . . . . . 35
SECTION 2.07. Interest Elections . . . . . . . . . . . . . . 36
SECTION 2.08. Termination and Reduction of Commitments . . . 37
SECTION 2.09. Repayment of Loans; Evidence of Debt . . . . . 38
SECTION 2.10. Amortization of Term Loans . . . . . . . . . . 39
SECTION 2.11. Prepayment of Loans . . . . . . . . . . . . . . 40
SECTION 2.12. Fees . . . . . . . . . . . . . . . . . . . . . 41
SECTION 2.13. Interest . . . . . . . . . . . . . . . . . . . 42
SECTION 2.14. Alternate Rate of Interest . . . . . . . . . . 43
SECTION 2.15. Increased Costs . . . . . . . . . . . . . . . . 43
SECTION 2.16. Break Funding Payments . . . . . . . . . . . . 45
SECTION 2.17. Taxes . . . . . . . . . . . . . . . . . . . . . 45
SECTION 2.18. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs . . . . . . . . . . . 47
SECTION 2.19. Mitigation Obligations; Replacement of
Lenders . . . . . . . . . . . . . . . . . 48
ARTICLE III
Representations and Warranties
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SECTION 3.01. Organization; Powers . . . . . . . . . . . . . 49
SECTION 3.02. Authorization; Enforceability . . . . . . . . . 49
SECTION 3.03. Governmental Approvals; No Conflicts . . . . . 50
SECTION 3.04. Financial Condition; No Material Adverse
Change . . . . . . . . . . . . . . . . . . 50
SECTION 3.05. Properties . . . . . . . . . . . . . . . . . . 51
SECTION 3.06. Litigation and Environmental Matters . . . . . 51
SECTION 3.07. Compliance with Laws and Agreements . . . . . . 52
SECTION 3.08. Investment and Holding Company Status . . . . . 52
SECTION 3.09. Taxes . . . . . . . . . . . . . . . . . . . . . 52
SECTION 3.10. ERISA . . . . . . . . . . . . . . . . . . . . . 52
SECTION 3.11. Disclosure . . . . . . . . . . . . . . . . . . 53
SECTION 3.12. Subsidiaries . . . . . . . . . . . . . . . . . 53
SECTION 3.13. Insurance . . . . . . . . . . . . . . . . . . . 53
SECTION 3.14. Labor Matters . . . . . . . . . . . . . . . . . 53
SECTION 3.15. Solvency . . . . . . . . . . . . . . . . . . . 54
SECTION 3.16. Security Documents . . . . . . . . . . . . . . 54
SECTION 3.17. Federal Reserve Regulations . . . . . . . . . . 55
SECTION 3.18. Merger . . . . . . . . . . . . . . . . . . . . 55
SECTION 3.19. Capitalization of Holdings . . . . . . . . . . 56
ARTICLE IV
Conditions
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SECTION 4.01. Effective Date . . . . . . . . . . . . . . . . 56
SECTION 4.02. Each Credit Event . . . . . . . . . . . . . . . 60
ARTICLE V
Affirmative Covenants
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SECTION 5.01. Financial Statements and Other Information . . 61
SECTION 5.02. Notices of Material Events . . . . . . . . . . 62
SECTION 5.03. Information Regarding Collateral . . . . . . . 63
SECTION 5.04. Existence; Conduct of Business . . . . . . . . 63
SECTION 5.05. Payment of Obligations . . . . . . . . . . . . 63
SECTION 5.06. Maintenance of Properties . . . . . . . . . . . 64
SECTION 5.07. Insurance . . . . . . . . . . . . . . . . . . . 64
SECTION 5.08. Casualty and Condemnation . . . . . . . . . . . 64
SECTION 5.09. Books and Records; Inspection and Audit
Rights . . . . . . . . . . . . . . . . . . 65
SECTION 5.10. Compliance with Laws . . . . . . . . . . . . . 65
SECTION 5.11. Use of Proceeds and Letters of Credit . . . . . 65
SECTION 5.12. Additional Subsidiaries . . . . . . . . . . . . 66
SECTION 5.13. Further Assurances . . . . . . . . . . . . . . 66
SECTION 5.14. Interest Rate Protection . . . . . . . . . . . 67
SECTION 5.15. Redemption of Notes . . . . . . . . . . . . . . 68
SECTION 5.16. Issuance of Subordinated Notes, Issuance of
8% PIK Notes and Application of
Proceeds Thereof . . . . . . . . . . . . . 68
SECTION 5.17. Consummation of the Merger . . . . . . . . . . 68
ARTICLE VI
Negative Covenants
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SECTION 6.01. Indebtedness; Certain Equity Securities . . . . 69
SECTION 6.02. Liens . . . . . . . . . . . . . . . . . . . . . 71
SECTION 6.03. Fundamental Changes . . . . . . . . . . . . . . 73
SECTION 6.04. Investments, Loans, Advances, Guarantees
and Acquisitions . . . . . . . . . . . . . 73
SECTION 6.05. Asset Sales . . . . . . . . . . . . . . . . . . 75
SECTION 6.06. Sale and Lease-Back Transactions . . . . . . . 76
SECTION 6.07. Hedging Agreements . . . . . . . . . . . . . . 76
SECTION 6.08. Restricted Payments; Certain Payments of
Indebtedness . . . . . . . . . . . . . . . 76
SECTION 6.09. Transactions with Affiliates . . . . . . . . . 78
SECTION 6.10. Other Indebtedness . . . . . . . . . . . . . . 78
SECTION 6.11. Restrictive Agreements . . . . . . . . . . . . 79
SECTION 6.12. Amendment of Material Documents . . . . . . . . 79
SECTION 6.13. Capital Expenditures . . . . . . . . . . . . . 79
SECTION 6.14. Leverage Ratio . . . . . . . . . . . . . . . . 80
SECTION 6.15. Consolidated Net Cash Interest Expense
Coverage Ratio . . . . . . . . . . . . . . 80
SECTION 6.16. Fixed Charge Coverage Ratio . . . . . . . . . . 81
SECTION 6.17. Additional Subsidiaries . . . . . . . . . . . . 82
SECTION 6.18. Merger Consideration; Redemption of Senior
Notes and Convertible Subordinated
Notes; Prepayment of Existing Mortgages . 82
SECTION 6.19. Fiscal Year . . . . . . . . . . . . . . . . . . 82
ARTICLE VII
Events of Default
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ARTICLE VIII
The Administrative Agent
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ARTICLE IX
Miscellaneous
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SECTION 9.01. Notices . . . . . . . . . . . . . . . . . . . . 88
SECTION 9.02. Waivers; Amendments . . . . . . . . . . . . . . 88
SECTION 9.03. Expenses; Indemnity; Damage Waiver . . . . . . 89
SECTION 9.04. Successors and Assigns . . . . . . . . . . . . 91
SECTION 9.05. Survival . . . . . . . . . . . . . . . . . . . 93
SECTION 9.06. Counterparts; Integration; Effectiveness . . . 94
SECTION 9.07. Severability . . . . . . . . . . . . . . . . . 94
SECTION 9.08. Right of Setoff . . . . . . . . . . . . . . . . 94
SECTION 9.09. Governing Law; Jurisdiction; Consent to
Service of Process . . . . . . . . . . . . 94
SECTION 9.10. WAIVER OF JURY TRIAL . . . . . . . . . . . . . 95
SECTION 9.11. Headings . . . . . . . . . . . . . . . . . . . 95
SECTION 9.12. Confidentiality . . . . . . . . . . . . . . . . 95
SECTION 9.13. Interest Rate Limitation . . . . . . . . . . . 96
SECTION 9.14. Pre-Funding Escrow Arrangements . . . . . . . . 96
SCHEDULES:
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Schedule 1.01(a) -- Mortgaged Properties
Schedule 1.01(b) -- Existing Mortgages (identifying Existing Mortgages
subject to mortgage payment rights or defaults)
Schedule 1.01(c) -- Capital Leases
Schedule 1.01(d) -- Inactive Subsidiaries
Schedule 2.01 -- Commitments
Schedule 3.05 -- Real Property
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 3.16(d) -- Mortgage Filing Offices
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Investments
Schedule 6.11 -- Existing Restrictions
EXHIBITS:
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Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Exhibit B-2 -- Form of Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx
Exhibit B-3 -- Form of Opinion of J. Xxxxxxxx Xxxxxxxxxx
Exhibit B-4 -- Form of Opinion of Xxxxxx, Xxxxxxxxx & Xxxxxxxxx
Exhibit C -- Form of Opinion of Local Counsel
Exhibit D -- Form of Parent Guarantee Agreement
Exhibit E -- Form of Subsidiary Guarantee Agreement
Exhibit F -- Form of Indemnity, Subrogation and Contribution Agreement
Exhibit G -- Form of Pledge Agreement
Exhibit H -- Form of Security Agreement
Exhibit I -- Form of Real Property Mortgage
CREDIT AGREEMENT, dated as of December 24,
1997, among FRANK'S NURSERY & CRAFTS, INC., a
Michigan corporation (the "Borrower"), CYRUS
ACQUISITION CORP., a New York corporation, GENERAL
HOST CORPORATION, a New York corporation, the
LENDERS party hereto, THE CHASE MANHATTAN BANK, as
Administrative Agent, Syndication Agent, Collateral
Agent, Issuing Bank and Swingline Lender, and
XXXXXXX XXXXX CREDIT PARTNERS L.P., as Documentation
Agent.
In connection with the Acquisition (such term and each other
capitalized term used but not defined in this introductory statement having
the meanings assigned to such terms in Article I), the Investors intend to
acquire all the outstanding Shares pursuant to the Merger Agreement. In
connection therewith, (a) Acqco has made the Equity Tender Offer,
(b) simultaneously with the Equity Tender Offer, Holdings has made the Debt
Tender Offer and (c) the consummation of each of the Equity Tender Offer and
the Debt Tender Offer is conditioned on the consummation of the other Tender
Offer. As promptly as practicable following the acceptance of Shares
pursuant to the Equity Tender Offer and the acceptance of Senior Notes
pursuant to the Debt Tender Offer, (a) Acqco will merge into Holdings, with
Holdings as the surviving corporation in such merger, and (b) subject to
stockholders' appraisal rights, each outstanding Share not acquired in the
Equity Tender Offer will be converted into the right to receive the Cash
Merger Consideration.
The Borrower has requested (a) the Revolving Lenders to
extend credit in the form of Revolving Loans during the Revolving
Availability Period in an aggregate principal amount at any time outstanding
not in excess of $110,000,000 minus the sum of (i) the LC Exposure and
(ii) the Swingline Exposure at such time, (b) the Term Lenders to extend
credit in the form of Term Loans during the Term Availability Period in an
aggregate principal amount not in excess of $85,000,000, (c) the Issuing Bank
to issue Letters of Credit during the LC Availability Period in an aggregate
face amount at any time outstanding not in excess of $25,000,000 and (d) the
Swingline Lender to extend credit in the form of Swingline Loans during the
Revolving Availability Period in an aggregate principal amount not in excess
of $15,000,000.
The proceeds of the Term Loans and the Revolving Loans from
and after the Effective Date will be used by the Borrower as provided in
Section 5.11.
The Lenders and the Swingline Lender are willing to extend
such credit to the Borrower and the Issuing Bank is willing to issue Letters
of Credit for the account of the Borrower on the terms and subject to the
conditions set forth herein. Accordingly, the parties hereto agree as
follows:
ARTICLE I
Definitions
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SECTION 1.01. Defined Terms. As used in this Agreement,
the following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Alternate Base
Rate.
"Acqco" means Cyrus Acquisition Corp., a New York
corporation, all the outstanding stock of which is owned by the Investors.
"Acqco Equity Contribution" means the common equity
contribution made by Acqco to Holdings substantially simultaneously with the
purchase by Acqco of Shares pursuant to the Equity Tender Offer in an
aggregate amount in cash equal to $25,900,000.
"Acquisition" means the Equity Tender Offer, the Merger and
the other transactions contemplated by the Merger Agreement and the Equity
Tender Offer Materials.
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for
such Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in
its capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person,
another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with
the Person specified.
"Agents" means the Administrative Agent, the Syndication
Agent, the Collateral Agent and the Documentation Agent.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greatest of (a) the Prime Rate in effect on such day, (b) the
Base CD Rate in effect on such day plus 1% and (c) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate, the Base CD Rate or
the Federal Funds Effective Rate shall be effective from and including the
effective date of such change in the Prime Rate, the Base CD Rate or the
Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Revolving
Lender, the percentage of the total Revolving Commitments represented by such
Lender's Revolving Commitment. If the Revolving Commitments have terminated
or expired, the Applicable Percentages shall be determined based upon the
Revolving Commitments most recently in effect, giving effect to any
assignments made in accordance with Section 9.04.
"Applicable Rate" means, (a) for any day with respect to any
ABR Loan (excluding Swingline Loans) or Eurodollar Loan that is a Revolving
Loan, or with respect to the commitment fees payable hereunder in respect of
the Revolving Commitments, as the case may be, the applicable rate per annum
set forth below under the caption "ABR Spread--Revolving Loan", "Eurodollar
Spread--Revolving Loan" or "Commitment Fee Rate", as the case may be, based
upon the Senior Leverage Ratio as of the most recent determination date,
provided that until the third Business Day after the delivery to the
Administrative Agent, pursuant to Section 5.01(b), of Holdings's and the
Borrower's consolidated financial statements for Holdings's and the
Borrower's first four full fiscal quarters commencing after the Effective
Date, the "Applicable Rate" with respect to any ABR Loan or Eurodollar Loan
that is a Revolving Loan shall be the applicable rate per annum set forth
below in Category 1:
ABR Spread-- Eurodollar Spread-- Commitment
Senior Leverage Ratio: Revolving Loan Revolving Loan Fee Rate
---------------------- -------------- ------------------- ----------
Category 1 1.25% 2.25% 0.500%
----------
Equal to or greater than
2.00 to 1.00
Category 2 1.00% 2.00% 0.500%
----------
Less than 2.00 to 1.00
but equal to or greater
than 1.75 to 1.00
Category 3 0.75% 1.75% 0.500%
----------
Less than 1.75 to 1.00
but equal to or greater
than 1.50 to 1.00
Category 4 0.50% 1.50% 0.375%
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Less than 1.50 to 1.00
and (b) for any day with respect to any ABR Loan or Eurodollar Loan that is a
Term Loan, or with respect to the commitment fees payable hereunder in
respect of the Term Commitments, as the case may be, the applicable rate per
annum set forth below under the caption "ABR Spread--Term Loan", "Eurodollar
Spread--Term Loan" or "Commitment Fee Rate", as the case may be, based upon
the Senior Leverage Ratio as of the most recent determination date, provided
that until the third Business Day after the delivery to the Administrative
Agent, pursuant to Section 5.01(b), of Holdings's and the Borrower's
consolidated financial statements for Holdings's and the Borrower's first
four full fiscal quarters commencing after the Effective Date, the
"Applicable Rate" with respect to any ABR Loan or Eurodollar Loan that is a
Term Loan shall be the applicable rate per annum set forth below in
Category 1:
ABR Spread-- Eurodollar Spread-- Commitment
Senior Leverage Ratio: Term Loan Term Loan Fee Rate
--------------------- ------------ ------------------- -----------
Category 1 1.50% 2.50% 0.500%
----------
Equal to or greater than
2.00 to 1.00
Category 2 1.25% 2.25% 0.500%
----------
Less than 2.00 to 1.00
but equal to or greater
than 1.75 to 1.00
Category 3 1.00% 2.00% 0.500%
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Less than 1.75 to 1.00
For purposes of the foregoing, (a) the Senior Leverage Ratio
shall be determined as of the end of each fiscal quarter of Holdings's fiscal
year based upon Holdings's consolidated financial statements delivered
pursuant to Section 5.01(a) or (b), and (b) each change in the Applicable
Rate resulting from a change in the Senior Leverage Ratio shall be effective
during the period commencing on and including the third day (such day, the
"Applicable Rate Determination Date") after the date of delivery to the
Administrative Agent of such consolidated financial statements indicating
such change and ending on the date immediately preceding the effective date
of the next such change, provided that the Senior Leverage Ratio shall be
deemed to be in Category 1 if the Borrower fails to deliver the consolidated
financial statements required to be delivered by it pursuant to Section
5.01(a) or (b), during the period from the expiration of the time for
delivery thereof until such consolidated financial statements are delivered.
"Ashton" means Xxxxxx X. Xxxxxx.
"Ashton Termination Payment" means an amount not to exceed
$7,350,000 in full satisfaction and payment of Holdings's obligations
(excluding ongoing benefits, reimbursement of expenses incurred by Ashton
prior to termination and tax gross-ups, if applicable) pursuant to the
Employment Agreement, as amended, dated as of January 1, 1992, by and between
Holdings and Ashton.
"Assessment Rate" means, for any day, the annual assessment
rate in effect on such day that is payable by a member of the Bank Insurance
Fund classified as "well-capitalized" and within supervisory subgroup "B" (or
a comparable successor risk classification) within the meaning of 12 C.F.R.
Part 327 (or any successor provision) to the Federal Deposit Insurance
Corporation for insurance by such Corporation of time deposits made in
dollars at the offices of such member in the United States, provided that if,
as a result of any change in any law, rule or regulation, it is no longer
possible to determine the Assessment Rate as aforesaid, then the Assessment
Rate shall be such annual rate as shall be determined by the Administrative
Agent in its reasonable judgment to be representative of the cost of such
insurance to the Lenders.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an assignee (with the consent of any
party whose consent is required by Section 9.04), and accepted by the
Administrative Agent, in the form of Exhibit A or any other form approved by
the Administrative Agent.
"Base CD Rate" means the sum of (a) the Three-Month
Secondary CD Rate multiplied by the Statutory Reserve Rate plus (b) the
Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means Frank's Nursery & Crafts, Inc., a Michigan
corporation.
"Borrower Subsidiary" means any subsidiary of the Borrower.
"Borrowing" means (a) Loans of the same Class and Type,
made, converted or continued on the same date and, in the case of Eurodollar
Loans, as to which a single Interest Period is in effect, or (b) a Swingline
Loan.
"Borrowing Request" means a request by the Borrower for a
Borrowing or Borrowings in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday
or other day on which commercial banks in New York City are authorized or
required by law to remain closed, provided 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.
"Capital Expenditures" means, for any period, the additions
to property, plant and equipment and other capital expenditures of Holdings
and its consolidated subsidiaries that are or would be required to be set
forth in a consolidated statement of cash flows of Holdings for such period
prepared in accordance with GAAP, including the cost of assets acquired
pursuant to capital leases incurred by Holdings and its consolidated
subsidiaries during such period, provided that Capital Expenditures shall
exclude (a) amounts paid for Reinvestment Assets and (b) any amount
representing capitalized interest on capital leases.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of
(or other arrangement conveying the right to use) real or personal property,
or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Leases" means the capital leases of Holdings, the
Borrower and the other Subsidiaries that are in effect immediately prior to
the Effective Date and listed on Schedule 1.01(c).
"Cash Merger Consideration" means the per-Share price paid
in connection with the Equity Tender Offer.
"CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. ' 9601 et seq.
"Change in Control" means, (a) prior to the Merger, the
failure by the Investors to own, directly or indirectly, beneficially and of
record (and possess the right to vote), shares representing 100% of the
aggregate ordinary voting power represented by the issued and outstanding
capital stock of Acqco; (b) at any time after the consummation of the Equity
Tender Offer, (i) the failure by Cypress and its Affiliates to own, directly
or indirectly, beneficially and of record (and possess the right to vote),
Shares representing more than 50% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of Holdings, (ii) the
acquisition of ownership, directly or indirectly, beneficially or of record
(or the possession of the right to vote), by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date
hereof) other than Cypress and its Affiliates, of Shares representing more
than 35% of the aggregate ordinary voting power represented by the issued and
outstanding capital stock of Holdings or (iii) occupation of a majority of
the seats (other than vacant seats) on the board of directors of Holdings by
Persons who were neither (A) nominated by the board of directors of Holdings
nor (B) appointed by directors so nominated; and (c) at any time, (i) the
failure by Holdings to own, directly, beneficially and of record (and possess
the right to vote), shares representing 100% of the aggregate ordinary voting
power represented by the issued and outstanding capital stock of the Borrower
or (ii) the occurrence of any change in control (or similar event, howsoever
denominated) with respect to Holdings, the Borrower or, prior to the Merger,
Acqco under and as defined in any indenture or agreement in respect of any
Material Indebtedness (other than the Existing Mortgages and the Convertible
Subordinated Notes) to which Holdings, the Borrower, any other Subsidiary or,
prior to the Merger, Acqco, is a party, to the extent that such change in
control (or similar event) (A) gives rise to any right on the part of the
holder of such Material Indebtedness to accelerate the maturity of such
Material Indebtedness or require the repayment thereof and (B) such right has
not been waived.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule
or regulation or in the interpretation or application thereof by any
Governmental Authority after the date of this Agreement or (c) compliance by
any Lender or any Issuing Bank (or, for purposes of Section 2.15(b), by any
lending office of such Lender or by such Lender's or such Issuing Bank's
holding company, if any) with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or issued
after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans, Term Loans or Swingline Loans and, when used in reference to
any Commitment, refers to whether such Commitment is a Revolving Commitment
or Term Commitment.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Collateral" means any and all "Collateral", as defined in
any applicable Security Document.
"Collateral Agent" means the "Collateral Agent", as defined
in the Security Agreement.
"Commitment" means a Revolving Commitment or Term
Commitment, or any combination thereof (as the context requires).
"Consolidated EBITDA" means, for any period, Consolidated
Net Income for such period, plus, without duplication and to the extent
deducted from revenues in determining Consolidated Net Income, the sum of
(a) the aggregate amount of Consolidated Net Cash Interest Expense for such
period, (b) the aggregate amount of letter of credit fees and other charges,
fees and charges under bankers' acceptance financings and net cash costs
under Hedging Agreements expensed during such period, (c) the aggregate
amount of income tax expense for such period, (d) all amounts attributable to
depreciation, amortization and other similar noncash charges for such period,
including the amortization of debt discounts and deferred financing charges,
(e) Transaction Costs, (f) all extraordinary, non-recurring or unusual
charges during such period, (g) one-time severance expenses relating to
payouts in connection with or resulting from the Transactions, (h) costs
incurred in connection with the issuance of the Subordinated Notes, (i) the
Ashton Termination Payment (including any Tax gross-ups associated therewith)
and (j) payments of liabilities relating to Disclosed Matters to the extent
that such payments are permitted by Section 6.08(a)(viii), (k) compensation
expense resulting from the issuance of capital stock, stock options or stock
appreciation rights issued to employees, including officers, of Acqco,
Holdings or any Subsidiary, or the exercise of such options or rights, in
each case to the extent the obligation (if any) associated therewith is not
expected to be settled by the payment of cash by Holdings or any Affiliate of
Holdings and compensation expense resulting from the repurchase of any such
capital stock, options and rights, (l) any one-time expenses incurred or
payments made in connection with the Transactions, (m) one-time non-cash
charges relating to reserve adjustments for closed stores and worker's
compensation, and other balance sheet adjustments and write-offs in
connection with or resulting from the Transactions, and minus, without
duplication and to the extent added to revenues in determining Consolidated
Net Income for such period, all extraordinary, non-recurring or unusual gains
during such period, all as determined on a consolidated basis with respect to
Holdings and the Subsidiaries in accordance with GAAP.
"Consolidated Lease Expense" means, for any period, all rent
payment obligations (excluding any applicable property taxes) of Holdings,
the Borrower and the other Subsidiaries during such period under agreements
for the lease, hire or use of any real property (other than Capital Lease
Obligations), as determined on a consolidated basis for Holdings, the
Borrower and the other Subsidiaries in accordance with GAAP.
"Consolidated Net Cash Interest Expense" means, for any
period, interest expense (including the interest component in respect of
Capital Lease Obligations and excluding the amortization of debt discounts,
deferred financing charges and other non-cash interest expenses) of Holdings
and the Subsidiaries during such period, net of any cash interest income
recorded during such period, determined on a consolidated basis in accordance
with GAAP.
"Consolidated Net Income" means, for any period, net income
or loss of Holdings and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, provided that there shall be
excluded (a) the income of any Person in which any other Person (other than
Holdings or any of the Subsidiaries or any director holding qualifying shares
in compliance with applicable law) has a joint interest, except to the extent
of the amount of dividends or other distributions actually paid to Holdings
or any of the Subsidiaries by such Person during such period, and (b) the
income (or loss) of any Person accrued prior to the date it becomes a
Subsidiary or is merged into or consolidated with Holdings or any of the
Subsidiaries or the date that Person's assets are acquired by Holdings or any
of the Subsidiaries.
"Control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power or by contract.
The terms "Controlling" and "Controlled" have meanings correlative thereto.
"Convertible Subordinated Notes" means the 8% Convertible
Subordinated Notes Due 2002 of Holdings issued under the Convertible
Subordinated Notes Indenture.
"Convertible Subordinated Notes Indenture" means the
indenture dated as of February 28, 1992, by and between Holdings, as issuer,
and United States Trust Company of New York, as trustee, governing the
Convertible Subordinated Notes.
"Cypress" means The Cypress Group L.L.C., a Delaware limited
liability company.
"Debt Tender Offer" means the tender offer made by Holdings
for all the outstanding Senior Notes pursuant to the Debt Tender Offer
Materials and the provisions of the Merger Agreement.
"Debt Tender Offer Materials" means the offer to purchase
distributed by the Borrower to holders of the Senior Notes with respect to
the Debt Tender Offer, and all related materials similarly distributed in
accordance with this Agreement.
"Default" means any event or condition that constitutes an
Event of Default or that upon notice, lapse of time or both would, unless
cured or waived, become an Event of Default pursuant to Article VII.
"Disclosed Matters" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 3.06.
"Documentation Agent" means Xxxxxxx Xxxxx Credit Partners
L.P., in its capacity as documentation agent for the Lenders hereunder.
"dollars" or "$" refers to lawful money of the United States
of America.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with
Section 9.02).
"8% PIK Debentures" means $45,000,000 in aggregate principal
amount of unsecured 8% pay-in-kind debentures of Holdings, (a) all payments
of principal and interest in respect of which are to be paid (and all other
payments in respect of which are to be made) in additional 8% PIK Debentures,
in lieu of cash, until the date that is at least 360 days following the Term
Maturity Date, (b) that are not subject to redemption other than redemption
at the option of Holdings, (c) all payments in respect of which are expressly
subordinated to the Obligations and (d) that are not subject to any covenant
other than the payment obligation described in clause (a) of this sentence,
to be issued by Holdings to Cypress and/or certain of the Investors in
exchange for the payment by such Persons to Holdings of $45,000,000 in cash
on or before the Redemption Completion Date in the event that the
Subordinated Notes are not issued by the Borrower on or before the Redemption
Completion Date.
"8% PIK Debentures Issuance Date" means the date on which
the 8% PIK Debentures are issued by Holdings.
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or
reclamation of natural resources, handling, treatment, storage, disposal,
Release or threatened Release of any Hazardous Material or to health and
safety matters.
"Environmental Liability" means any liability (including any
liability for damages, natural resource damage, costs of environmental
investigation, monitoring or remediation, administrative oversight costs,
fines, penalties or indemnities) of Holdings, the Borrower or any other
Subsidiary resulting from or based upon (a) violation of any Environmental
Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the Release or threatened Release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Contributions" means the Investor Equity
Contributions and the Acqco Equity Contribution.
"Equity Tender Offer" means the tender offer made by Acqco
to acquire all the outstanding Shares (including the associated common stock
purchase rights issued pursuant to the Rights Agreement, dated as of March 7,
1990, as amended, between Holdings and ChaseMellon Shareholder Services
L.L.C., as successor to Chemical Bank, as rights agent) pursuant to the
Equity Tender Offer Materials and the provisions of the Merger Agreement.
"Equity Tender Offer Materials" shall mean the offer to
purchase and other tender offer materials included as exhibits to the tender
offer statement on Schedule 14D-1 filed by Acqco with the Securities and
Exchange Commission with respect to the Equity Tender Offer, and all
amendments and supplements thereto that are similarly filed in accordance
with this agreement.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means Holdings, each Subsidiary and, prior
to the Merger, Acqco.
"ERISA Event" means (a) any "reportable event", as defined
in Section 4043 of ERISA or the regulations issued thereunder with respect to
a Plan (other than an event for which the 30-day notice period is waived);
(b) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (c) the filing pursuant to Section 412(d) of the Code
or Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by the Borrower
or any of its ERISA Affiliates of any liability under Title IV of ERISA with
respect to the termination of any Plan; (e) the receipt by the Borrower or
any ERISA Affiliate from the PBGC or a plan administrator of any notice
relating to an intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (f) the incurrence by the Borrower or any of
its ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by
the Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such
Borrowing, are bearing interest at a rate determined by reference to the
Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excess Cash Flow" means, for any period, the sum (without
duplication) of:
(a) the Consolidated Net Income for such period, adjusted to
exclude any gains or losses (in each case net of Taxes applicable
with respect to such gains or losses during such period) attributable
to Prepayment Events; plus
(b) depreciation, amortization and other noncash charges or
losses (in each case net of Taxes applicable with respect to such
charges or losses during such period) deducted in determining such
Consolidated Net Income for such period; plus
(c) the sum of (i) the amount, if any, by which Net Working
Capital decreased during such period plus (ii) the aggregate
principal amount of Capital Lease Obligations and other Indebtedness
incurred during such period to finance Capital Expenditures, to the
extent that mandatory principal payments in respect of such
Indebtedness would not be excluded from clause (f) below when made;
minus
(d) the sum of (i) any noncash gains (in each case net of
Taxes applicable with respect to such gains during such period)
included in determining Consolidated Net Income for such period plus
(ii) the amount, if any, by which Net Working Capital increased
during such period; minus
(e) Capital Expenditures for such period, except to the
extent such Capital Expenditures are financed with the proceeds of
asset dispositions (including casualty and condemnation events);
minus
(f) the aggregate principal amount of Indebtedness repaid or
prepaid by Holdings and its consolidated subsidiaries during such
period as permitted by this Agreement, excluding (i) Indebtedness in
respect of Revolving Loans, Swingline Loans and Letters of Credit
(other than to the extent that the Revolving Commitments are
permanently reduced by such repayments or prepayments), (ii) Term
Loans prepaid pursuant to Section 2.11(b), (c) or (d), (iii)
repayments or prepayments of Indebtedness financed by incurring other
Indebtedness, to the extent that mandatory principal payments in
respect of such other Indebtedness would, pursuant to this clause
(f), be deducted in determining Excess Cash Flow when made and (iv)
Indebtedness referred to in clauses (iii), (iv) and (vii) of
Section 6.01(a).
"Excluded Taxes" means, with respect to the Agents, any
Lender, any Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of Holdings, the Borrower or, prior to the
Merger, Acqco hereunder, (a) income, branch profits (or functionally similar
Taxes) or franchise Taxes imposed on (or measured by) its net income by the
United States of America, or by the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located and (b)
in the case of a Foreign Lender (other than an assignee or new lending office
designated pursuant to a request by the Borrower under Section 2.19(b)), any
withholding Tax that is (i) imposed on amounts payable to such Foreign Lender
at the time such Foreign Lender becomes a party to this Agreement (or
designates a new lending office), except to the extent that (A) such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of
a new lending office (or assignment), to receive additional amounts from the
Borrower with respect to any withholding Tax pursuant to Section 2.17(a) or
(B) such withholding Tax is attributable to the designation of a Borrower
Subsidiary after the date upon which such Foreign Lender becomes a party to
this Agreement, or (ii) attributable to such Foreign Lender's failure to
comply with Section 2.17(e).
"Existing Credit Agreement" means the Mortgage-Backed Credit
Agreement, dated as of November 29, 1996, as amended, by and among Holdings,
the Borrower and Comerica Bank.
"Existing Mortgages" means mortgage notes, and the
documentation related thereto, of Holdings, the Borrower and the other
Subsidiaries existing on the Effective Date and listed on Schedule 1.01(b).
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations
for such day for such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the applicable Loan
Party.
"Financing Transactions" means (a) the execution, delivery
and performance by each Loan Party of the Loan Documents to which it is to be
a party, the borrowing of Loans, the use of the proceeds thereof and the
issuance of Letters of Credit hereunder, (b) the Equity Contributions,
(c) the issuance of the Subordinated Notes and (d) the issuance of the 8% PIK
Debentures.
"Fixed Charges" means, for any period, the sum of
(a) Consolidated Lease Expense for such period, (b) Consolidated Net Cash
Interest Expense for such period, (c) scheduled principal payments of
Indebtedness made by Holdings, the Borrower, any other Subsidiary or, prior
to the Merger, Acqco to any person other than Holdings, or any wholly owned
subsidiary of Holdings, during such period and (d) Capital Expenditures for
such period (except for expenditures by Holdings and its consolidated
subsidiaries during the two-fiscal-year period of Holdings ending January 30,
2000, in an aggregate amount of up to $5,000,000 for the acquisition of new
property, plant and equipment that are or would be required to be set forth
as Capital Expenditures in a consolidated statement of cash flows for
Holdings for such period prepared in accordance with GAAP).
"Foreign Lender" means any Lender that is organized under
the laws of a jurisdiction other than the United States of America, any State
thereof or the District of Columbia.
"Foreign Subsidiary" means any Subsidiary that is organized
under the laws of a jurisdiction other than the United States of America or
any State thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or
indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to
advance or supply funds for the purchase of) any security for the payment
thereof, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness or other obligation of the
payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation or
(d) as an account party in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or obligation, provided that the
term "Guarantee" shall not include endorsements for collection or deposit in
the ordinary course of business.
"Guarantee Agreements" means the Parent Guarantee Agreement
and the Subsidiary Guarantee Agreement.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or
asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature
regulated pursuant to any Environmental Law, including any material listed as
a hazardous substance under Section 101(14) of CERCLA.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price
hedging arrangement.
"Holdings" means General Host Corporation, a New York
corporation.
"Inactive Subsidiaries" means the subsidiaries of Holdings
listed on Schedule 1.01(d).
"Indebtedness" of any Person means, without duplication,
(a) all obligations of such Person for borrowed money or with respect to
deposits or advances of any kind, (b) all obligations of such Person
evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid,
(d) all obligations of such Person under conditional sale or other title
retention agreements relating to property acquired by such Person, (e) all
obligations of such Person in respect of the deferred purchase price of
property or services (excluding accounts payable (other than those remaining
unpaid more than 120 days from the date due) incurred in the ordinary course
of business), (f) all Indebtedness of others secured by any Lien on property
owned or acquired by such Person, whether or not the Indebtedness secured
thereby has been assumed, (g) all Guarantees by such Person of Indebtedness
of others, (h) all Capital Lease Obligations of such Person, (i) all
obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances.
The Indebtedness of any Person shall include the Indebtedness of any other
entity (including any partnership in which such Person is a general partner)
to the extent such Person is liable therefor as a result of such Person's
ownership interest in or other relationship with such entity, except to the
extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnity, Subrogation and Contribution Agreement" means
the Indemnity, Subrogation and Contribution Agreement, substantially in the
form of Exhibit F, among the Borrower, the Subsidiary Loan Parties and the
Administrative Agent.
"Information Memorandum" means the Confidential Information
Memorandum dated December 1997 relating to the Borrower and the Transactions.
"Interest Election Request" means a request by the Borrower
to convert or continue a Revolving Borrowing or Term Borrowing in accordance
with Section 2.07.
"Interest Payment Date" means (a) with respect to any ABR
Loan (other than a Swingline Loan), the last Business Day of each March,
June, September and December (commencing in 1998), (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months' duration, each
Business Day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest
Period, and (c) with respect to any Swingline Loan, the day that such Loan is
required to be repaid.
"Interest Period" means, with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on
the numerically corresponding day in the calendar month that is one, two,
three or six months thereafter (or nine or twelve months thereafter if, at
the time of the relevant Borrowing, all Lenders make interest periods of
such length available), as the Borrower may elect, provided that (i) if any
Interest Period would end on a day other than 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)
any Interest Period that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business
Day of the last calendar month of such Interest Period. For purposes hereof,
the date of a Borrowing initially shall be the date on which such Borrowing
is made and thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
"Investor Agreement" means the letter agreement, dated as of
December 24, 1997, among certain of the Investors, Acqco and Holdings with
respect to the purchase by such Investors of the 8% PIK Debentures.
"Investor Equity Contributions" means common equity
contributions made by the Investors to Acqco substantially simultaneously
with the purchase by Acqco of Shares pursuant to the Equity Tender Offer in
an aggregate amount of $166,000,000 in cash.
"Investors" means, collectively, Cypress, any entities
Controlled by Cypress and any management investors.
"Issuing Bank" means (a) the Primary Issuing Bank and
(b) each other Lender designated by the Borrower from time to time, with the
consent of the Administrative Agent (not to be unreasonably withheld) and
such Lender, to act as an issuer of Letters of Credit hereunder. Each
Issuing Bank may, in its discretion, arrange for one or more Letters of
Credit to be issued by Affiliates of such Issuing Bank, in which case the
term "Issuing Bank" shall include any such Affiliate with respect to Letters
of Credit issued by such Affiliate.
"LC Availability Period" means the period from and including
the Effective Date to but excluding the earlier of (a) the date that is five
Business Days prior to the Revolving Maturity Date and (b) the date of
termination of the Revolving Commitments.
"LC Disbursement" means a payment made by the applicable
Issuing Bank pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit at such time
plus (b) the aggregate amount of all LC Disbursements that have not yet been
reimbursed by or on behalf of the Borrower at such time. The LC Exposure of
any Revolving Lender at any time shall be its Applicable Percentage of the
total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment
and Acceptance permitted under Section 9.04, other than any such Person that
ceases to be a party hereto pursuant to an Assignment and Acceptance. Unless
the context otherwise requires, the term "Lenders" includes the Swingline
Lender.
"Letter of Credit" means any letter of credit issued
pursuant to this Agreement.
"Leverage Ratio" means, on any date, the ratio of (a) Total
Debt as of such date to (b) Consolidated EBITDA for the period of four
consecutive fiscal quarters of Holdings most recently ended as of such date,
all determined on a consolidated basis in accordance with GAAP.
"LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate appearing on Page 3750 of the Telerate
Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, as the rate
for dollar deposits with a maturity comparable to such Interest Period. In
the event that such rate is not available at such time for any reason, then
the "LIBO Rate" with respect to such Eurodollar Borrowing for such Interest
Period shall be the rate at which dollar deposits of $5,000,000 and for a
maturity comparable to such Interest Period are offered by the principal
London office of the Administrative 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.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor
under any conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the same economic
effect as any of the foregoing) relating to such asset and (c) in the case of
securities, any purchase option, call or similar right of a third party with
respect to such securities.
"Loan Documents" means this Agreement, the Letters of
Credit, the Guarantee Agreements, the Indemnity, Subrogation and Contribution
Agreement and the Security Documents.
"Loan Parties" means Holdings, the Borrower, the Subsidiary
Loan Parties and, prior to the Merger, Acqco.
"Loans" means the loans made and to be made by the Lenders
to the Borrower pursuant to this Agreement.
"Margin Stock" shall have the meaning assigned to such term
in Regulation U.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations, properties or financial condition (or,
with respect to the initial Borrowing only, prospects) of Holdings, the
Borrower and the Subsidiaries (and, prior to the Merger, Acqco) taken as a
whole since January 26, 1997, (b) the ability of any Loan Party to perform
any of its respective obligations under any Loan Document or (c) the rights
of or remedies available to the Lenders under any Loan Document.
"Material Indebtedness" means Indebtedness (other than the
Loans and Letters of Credit), or obligations in respect of one or more
Hedging Agreements, of any one or more of Holdings, the Borrower, the other
Subsidiaries and, prior to the Merger, Acqco in an aggregate principal amount
exceeding $5,000,000. For purposes of determining the amount of Material
Indebtedness at any time, the "principal amount" of the obligations of Acqco,
Holdings, the Borrower or any other Subsidiary in respect of any Hedging
Agreement at such time shall be the maximum aggregate amount (giving effect
to any netting agreements) that Acqco, Holdings, the Borrower or such
Subsidiary would be required to pay if such Hedging Agreement were terminated
at such time.
"Merger" means the merger, as promptly as practicable
following the acceptance of Shares pursuant to the Equity Tender Offer and
the acceptance of Senior Notes pursuant to the Debt Tender Offer, of Acqco
with and into Holdings, with Holdings as the surviving corporation, pursuant
to the Merger Agreement.
"Merger Agreement" means the Agreement and Plan of Merger,
dated as of November 22, 1997, by and between Holdings and Acqco.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means a mortgage, deed of trust, assignment of
leases and rents, leasehold mortgage or other security document granting a
Lien on any Mortgaged Property to secure the Obligations. Each Mortgage
shall be reasonably satisfactory in form and substance to the Collateral
Agent.
"Mortgaged Property" means, initially, each parcel of real
property and the improvements thereto owned or leased by a Loan Party and
identified on Schedule 1.01(a), and includes each other parcel of real
property and improvements thereto with respect to which a Mortgage is granted
pursuant to Section 5.12 or 5.13.
"Multiemployer Plan" means a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event, (a) the
cash proceeds received in respect of such event including (i) any cash
received in respect of any noncash proceeds, but only as and when received,
(ii) in the case of a casualty, insurance proceeds in excess of $1,000,000,
and (iii) in the case of a condemnation or similar event, condemnation awards
and similar payments in excess of $1,000,000, net of (b) the sum of (i) all
reasonable fees and out-of-pocket expenses paid by Holdings, the Borrower,
the other Subsidiaries and, prior to the Merger, Acqco to third parties in
connection with such event, (ii) in the case of a sale, transfer or other
disposition of an asset (including pursuant to a sale and leaseback
transaction or a casualty or other insured damage or condemnation or similar
proceeding), the amount of all payments required to be made by Holdings, the
Borrower, the other Subsidiaries and, prior to the Merger, Acqco as a result
of such event to repay Indebtedness (other than Loans) secured by such asset
or otherwise subject to mandatory prepayment as a result of such event and to
pay any related prepayment premiums or penalties and (iii) the amount of all
taxes paid (or reasonably estimated to be payable) by Holdings, the Borrower,
the other Subsidiaries and, prior to the Merger, Acqco, and the amount of any
reserves established by Holdings, the Borrower, the other Subsidiaries and,
prior to the Merger, Acqco to fund contingent liabilities reasonably
estimated to be payable, in each case during the year that such event
occurred or the next succeeding year and that are directly attributable to
such event (as determined reasonably and in good faith by the chief financial
officer of the Borrower provided that, to the extent and at the time any such
unexpended amounts are released from any such reserve, such amounts shall
constitute Net Proceeds); provided, however, that, with respect to any sale,
transfer or other disposition of an asset (including pursuant to a sale and
leaseback transaction or a casualty or other insured damage or condemnation
or similar proceeding), if the Borrower shall deliver a certificate of a
Financial Officer to the Administrative Agent at the time of such sale,
transfer or other disposition setting forth the Borrower's intent to use the
proceeds of such sale, transfer or other disposition to replace or repair the
assets that are the subject of such sale, transfer or other disposition with
other assets to be used in the same line of business within 360 days of
receipt of such proceeds and no Default or Event of Default shall have
occurred and shall be continuing at the time of such certificate or at the
proposed time of the application of such proceeds, such proceeds shall not
constitute Net Proceeds except to the extent not so used at the end of such
360-day period, at which time such proceeds shall be deemed Net Proceeds.
"Net Working Capital" means, at any date, (a) the
consolidated current assets of Holdings and its consolidated subsidiaries as
of such date (excluding cash and Permitted Investments) minus (b) the
consolidated current liabilities of Holdings and its consolidated
subsidiaries as of such date (excluding current liabilities in respect of
Indebtedness). Net Working Capital at any date may be a positive or negative
number. Net Working Capital increases when it becomes more positive or less
negative and decreases when it becomes less positive or more negative.
"Obligations" has the meaning assigned to such term in
(a) the Security Agreement, (b) the Pledge Agreement and (c) the Guarantee
Agreements.
"Other Taxes" means any and all current or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"Parent Guarantee Agreement" means the Parent Guarantee
Agreement, substantially in the form of Exhibit D, made by Acqco and Holdings
in favor of the Administrative Agent for the benefit of the Secured Parties.
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA and any successor entity performing similar
functions.
"Perfection Certificate" means a certificate in the form of
Annex 1 to the Security Agreement or any other form approved by the
Collateral Agent.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or
are being contested in compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance
with Section 5.05;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) Liens incurred or deposits made to secure the
performance of bids, trade contracts, leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a
like nature, in each case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VII;
(f) easements, zoning restrictions, minor defects or
irregularities in title, rights-of-way and similar charges or
encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of business
of Holdings or any Subsidiary; and
(g) leases or subleases granted to others not interfering in
any material respect with the business of Holdings or any of the
Subsidiaries;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of
and interest on which are unconditionally guaranteed by, the United
States of America (or by any agency thereof to the extent such
obligations are backed by the full faith and credit of the United
States of America), in each case maturing within one year from the
date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from
Xxxxx'x;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date
of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any domestic
office of any commercial bank organized under the laws of the United
States of America or any State thereof that has a combined capital
and surplus and undivided profits of not less than $250,000,000;
(d) fully collateralized repurchase agreements with a term
of not more than 30 days for securities described in clause (a) above
and entered into with a financial institution satisfying the criteria
described in clause (c) above; and
(e) investments in money market funds, provided that
substantially all of the assets of such money market funds comprise
securities described in clauses (a), (b), (c) and (d) above.
"Permitted Subordinated Refinancing Debt" means Indebtedness
of Holdings or the Borrower that (a) is issued in exchange for all of, or the
net proceeds of which are used to refinance, replace, defease or refund in
whole and not in part, the Subordinated Notes or other subordinated
Indebtedness issued in accordance with Section 6.01(a)(x) and (b) is
subordinated to the Obligations, provided that (i) the principal amount of
such Permitted Subordinated Refinancing Debt does not exceed the principal
amount (or accreted value, if applicable) of the Subordinated Notes or other
subordinated Indebtedness, as applicable, so refinanced, replaced, defeased
or refunded, plus the amount of premiums, prepayment penalties and other
amounts required to be paid in connection therewith and the reasonable and
customary fees and expenses incurred in connection therewith, (ii) no
material terms applicable to such Permitted Subordinated Refinancing Debt
(including the subordination provisions thereof) are materially less
favorable to the Borrower or the Lenders than the terms that are applicable
under the Subordinated Notes Indenture or the instrument giving rise to such
other subordinated Indebtedness, as applicable, prior to such refinancing,
(iii) the timing and amounts of principal repayments (including any sinking
fund therefor) on such Permitted Subordinated Refinancing Debt are no sooner
and no greater, respectively, than the timing and amounts of principal
repayments under the Subordinated Notes or other subordinated Indebtedness,
as applicable, being refinanced, (iv) such Permitted Subordinated Refinancing
Debt is Indebtedness of the Borrower, (v) such Permitted Subordinated
Refinancing Debt is unsecured, (vi) any Guarantees by the guarantors of such
Permitted Subordinated Refinancing Debt are no more favorable to the
refinancing lenders than any Guarantees of the Subordinated Notes or other
subordinated Indebtedness, as applicable, and (vii) such Permitted
Subordinated Refinancing Debt accrues interest at a rate determined in good
faith by the Board of Directors of Holdings to be a market rate of interest
for such Permitted Subordinated Refinancing Debt at the time of issuance
thereof.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than
a Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of which the
Borrower or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Pledge Agreement" means the Pledge Agreement, substantially
in the form of Exhibit G, among the Borrower, the other Subsidiaries party
thereto and the Collateral Agent for the benefit of the Secured Parties.
"Prepayment Event" means:
(a) any sale, transfer or other disposition (including
pursuant to a sale and leaseback transaction) of any property or
asset of Acqco, Holdings, the Borrower or any Subsidiary, other than
sales, transfers or other dispositions described in clauses (a), (b)
and (c) of Section 6.05;
(b) any casualty or other insured damage to, or any taking
under power of eminent domain or by condemnation or similar
proceeding of, any property or asset of Acqco, Holdings, the Borrower
or any Subsidiary;
(c) the issuance by Acqco, Holdings, the Borrower or any
other Subsidiary of any equity securities, or the receipt by Acqco,
Holdings, the Borrower or any other Subsidiary of any capital
contribution, other than (i) any such issuance of equity securities
to, or receipt of any such capital contribution from, Acqco,
Holdings, the Borrower or any other Subsidiary, (ii) the Investor
Equity Contributions and (iii) the issuance of equity securities as a
result of (A) the exercise of anti-dilution rights pursuant to
Section 6.14 of the Merger Agreement, (B) the exercise of stock
options and (C) the conversion of any of the Convertible Subordinated
Notes; or
(d) the incurrence by Acqco, Holdings, the Borrower or any
Subsidiary of any Indebtedness, other than Indebtedness permitted by
Section 6.01(a).
"Primary Issuing Bank" means (a) The Chase Manhattan Bank,
in its capacity as an issuer of Letters of Credit hereunder, and (b) its
successors in such capacity as provided in Section 2.05(i).
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by The Chase Manhattan Bank as its prime rate
(not necessarily the lowest rate offered to customers) in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as
being effective.
"Redemption Completion Date" means the date that is 120 days
after the Effective Date.
"Register" has the meaning set forth in Section 9.04.
"Regulation G" shall mean Regulation G of the Board as from
time to time in effect and all official rulings and interpretations
thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board as from
time to time in effect and all official rulings and interpretations
thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from
time to time in effect and all official rulings and interpretations
thereunder or thereof.
"Reinvestment Assets" means assets that are employed in the
business of Holdings and the Subsidiaries and purchased pursuant to the
proviso to the definition of the term "Net Proceeds".
"Related Parties" means, with respect to any specified
Person, such Person's Affiliates and the respective directors, officers,
employees, agents and advisors of such Person and of such Person's
Affiliates.
"Release" has the meaning set forth in Section 101(22) of
CERCLA.
"Required Lenders" means, at any time, both (a) a minimum of
three Lenders (or any lesser number of Lenders that comprises all the
Lenders) and (b) Lenders having Revolving Exposures, Term Loans and unused
Commitments representing more than 50% of the sum of the total Revolving
Exposures, outstanding Term Loans and unused Commitments at such time.
"Restricted Payment" means any dividend or other
distribution (whether in cash, securities or other property) with respect to
any shares of any class of capital stock of Acqco, Holdings, the Borrower or
any Subsidiary, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
(a) any such shares of capital stock of Acqco, Holdings, the Borrower or any
Subsidiary or (b) any option, warrant or other right to acquire any such
shares of capital stock of Acqco, Holdings, the Borrower or any Subsidiary.
"Revolving Availability Period" means the period from and
including the Effective Date to but excluding the earlier of (a) the
Revolving Maturity Date and (b) the date of termination of the Revolving
Commitments.
"Revolving Commitment" means, with respect to each Lender,
the commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed
as an amount representing the maximum aggregate amount of such Lender's
Revolving Exposure hereunder, as such commitment may be (a) reduced from time
to time pursuant to Section 2.08 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 2.19 or
9.04. The initial amount of each Lender's Revolving Commitment is set forth
on Schedule 2.01, or in the Assignment and Acceptance pursuant to which such
Lender shall have assumed its Revolving Commitment, as applicable. The
initial aggregate amount of the Lenders' Revolving Commitments is
$110,000,000.
"Revolving Exposure" means, with respect to any Lender at
any time, the sum of the outstanding principal amount of such Lender's
Revolving Loans and its LC Exposure and Swingline Exposure at such time.
"Revolving Lender" means a Lender with a Revolving
Commitment or, if the Revolving Commitments have terminated or expired, a
Lender with Revolving Exposure.
"Revolving Loan" means a Loan made pursuant to clause (b) of
Section 2.01.
"Revolving Maturity Date" means December 24, 2003.
"S&P" means Standard & Poor's Ratings Service.
"Secured Parties" shall have the meaning assigned to such
term in the Security Agreement.
"Security Agreement" means the Security Agreement,
substantially in the form of Exhibit H, among the Borrower, Acqco, Holdings,
the Subsidiary Loan Parties and the Collateral Agent for the benefit of the
Secured Parties.
"Security Documents" means the Security Agreement, the
Pledge Agreement, the Mortgages and each other security agreement or other
instrument or document executed and delivered pursuant to Section 5.12 or
5.13 to secure any of the Obligations.
"Senior Leverage Ratio" means, on any date, the ratio of
(a) Total Senior Debt as of such date to (b) Consolidated EBITDA for the
period of four consecutive fiscal quarters of Holdings most recently ended as
of such date, all determined on a consolidated basis in accordance with GAAP.
"Senior Notes" means the 11-1/2% Senior Notes due 2002 of
Holdings issued under the Senior Notes Indenture.
"Senior Notes Indenture" means the Indenture dated as of
February 28, 1992, by and among Holdings, as issuer, the guarantors party
thereto and Bankers Trust Company, as Trustee, governing the Senior Notes.
"Shares" means shares of common stock of Holdings.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of
which is the number one minus the aggregate of the maximum reserve
percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject (a) with respect to the Base CD Rate, for new
negotiable nonpersonal time deposits in dollars of over $100,000 with
maturities approximately equal to three months and (b) with respect to the
Adjusted LIBO Rate, for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D or any
successor regulation or law. Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any
comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Subordinated Notes" means senior unsecured subordinated
notes of the Borrower to be issued by the Borrower in a public offering or in
a Rule 144A or other private placement, which notes shall (a) be in an
aggregate principal amount of not less than $100,000,000 and not more than
$125,000,000, (b) be subject to subordination provisions that, in the
reasonable judgment of the Administrative Agent, are market subordination
provisions at the time of issuance of the Subordinated Notes (and any
Guarantees by the guarantors of the Subordinated Notes shall be subject to
subordination provisions that, in the reasonable judgment of the
Administrative Agent, are market subordination provisions at the time of
issuance of such Guarantees), (c) be subject to no covenant more restrictive
in any material respect than those contained herein, (d) mature no earlier
than December 24, 2005, (e) accrue interest at a rate determined in good
faith by the Board of Directors of Holdings to be a market rate of interest
for the Subordinated Notes at the time of issuance thereof and (f) be
reasonably satisfactory in all other respects to the Administrative Agent.
"Subordinated Notes Indenture" means the indenture governing
the Subordinated Notes.
"subsidiary" means, with respect to any Person (the
"parent") at any date, any corporation, limited liability company,
partnership, association or other entity the accounts of which would be
consolidated with those of the parent in the parent's consolidated financial
statements if such financial statements were prepared in accordance with GAAP
as of such date, as well as any other corporation, limited liability company,
partnership, association or other entity of which securities or other
ownership interests representing more than 50% of the equity or more than 50%
of the ordinary voting power or, in the case of a partnership, more than 50%
of the general partnership interests are, as of such date, owned, controlled
or held by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of Holdings.
"Subsidiary Guarantee Agreement" means the Subsidiary
Guarantee Agreement, substantially in the form of Exhibit E, made by the
Subsidiary Loan Parties in favor of the Administrative Agent for the benefit
of the Secured Parties.
"Subsidiary Loan Party" means any Subsidiary that is not a
Foreign Subsidiary or an Inactive Subsidiary.
"Swingline Exposure" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The
Swingline Exposure of any Lender at any time shall be its Applicable
Percentage of the total Swingline Exposure at such time.
"Swingline Lender" means The Chase Manhattan Bank, in its
capacity as lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Syndication Agent" means The Chase Manhattan Bank, in its
capacity as syndication agent for the Lenders hereunder.
"Taxes" means any and all current or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Tender Offer Materials" means the Equity Tender Offer
Materials and the Debt Tender Offer Materials.
"Tender Offers" means the Equity Tender Offer and the Debt
Tender Offer.
"Term Availability Period" means the period from and
including the Effective Date to but excluding the earlier of (a) the date of
termination of the Term Commitments and (b) the Redemption Completion Date.
"Term Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make a Term Loan hereunder on the
Effective Date, expressed as an amount representing the maximum principal
amount of the Term Loan to be made by such Lender hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.08 and
(b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 2.19 or 9.04. The initial amount of each
Lender's Term Commitment is set forth on Schedule 2.01, or in the Assignment
and Acceptance pursuant to which such Lender shall have assumed its Term
Commitment, as applicable. The initial aggregate amount of the Lenders' Term
Commitments is $85,000,000.
"Term Lender" means a Lender with a Term Commitment or an
outstanding Term Loan.
"Term Loan" means a Loan made pursuant to clause (a) of
Section 2.01.
"Term Loan Closing Date" means each date on which Term Loans
are made.
"Term Maturity Date" means December 24, 2004.
"Three-Month Secondary CD Rate" means, for any day, the
secondary market rate for three-month certificates of deposit reported as
being in effect on such day (or, if such day is not a Business Day, the next
preceding Business Day) by the Board through the public information telephone
line of the Federal Reserve Bank of New York (which rate will, under the
current practices of the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day) or, if such rate is not
so reported on such day or such next preceding Business Day, the average of
the secondary market quotations for three-month certificates of deposit of
major money center banks in New York City received at approximately
10:00 a.m., New York City time, on such day (or, if such day is not a
Business Day, on the next preceding Business Day) by the Administrative Agent
from three negotiable certificate of deposit dealers of recognized standing
selected by it.
"Total Senior Debt" means, as of any date of determination,
(a) the sum of (i) the average daily aggregate principal amount of Revolving
Loans outstanding during the immediately preceding four fiscal quarters of
Holdings, (ii) the aggregate principal amount of Swingline Loans outstanding
as of such date, (iii) the aggregate principal amount of any unreimbursed LC
Disbursements as of such date, (iv) the aggregate principal amount of Term
Loans outstanding as of such date, (v) the aggregate principal amount of any
Capital Lease Obligations of Holdings and the Subsidiaries outstanding as of
such date and (vi) the aggregate principal amount of any Existing Mortgages
outstanding as of such date, minus (b) the sum of (i) the amount of cash
recorded on a consolidated balance sheet of Holdings, prepared in accordance
with GAAP, as of such date and (ii) the aggregate amount of Permitted
Investments, determined in accordance with GAAP, as of such date.
"Total Debt" means, as of any date of determination, without
duplication, the sum of (a) the aggregate principal amount of Indebtedness of
Holdings and the Subsidiaries outstanding as of such date, net of cash and
Permitted Investments, all determined, where applicable, on a consolidated
basis in accordance with GAAP (other than Revolving Loans, the 8% PIK
Debentures and Indebtedness of the type referred to in clause (i) of the
definition of the term "Indebtedness", except to the extent such Indebtedness
is required to be recorded on the consolidated balance sheet of Holdings and
its subsidiaries in accordance with GAAP) and (b) the average daily aggregate
principal amount of Revolving Loans outstanding during the immediately
preceding four fiscal quarters of Holdings.
"Transaction Costs" means any amounts paid or payable by
Acqco, Holdings or the Borrower in connection with financing fees, investment
banking and consulting fees and legal and accounting and other similar fees
incurred in connection with the Transactions.
"Transactions" means the Acquisition, the Debt Tender Offer,
the redemption of the Senior Notes and the Convertible Subordinated Notes and
the Financing Transactions.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans
comprising such Borrowing, is determined by reference to the Adjusted LIBO
Rate or the Alternate Base Rate.
"Untendered Shares" means any outstanding Shares not
acquired by Acqco in the Equity Tender Offer.
"Withdrawal Liability" means liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class
and Type (e.g., a "Eurodollar Revolving Loan"). Borrowings also may be
classified and referred to by Class (e.g., a "Revolving Borrowing") or by
Type (e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a
"Eurodollar Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms
herein shall apply equally to 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. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase
"without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires
otherwise (a) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein), (b) any reference herein to
any Person shall be construed to include such Person's successors and
permitted assigns, (c) the words "herein", "hereof" and "hereunder", and
words of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (d) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles and Sections of, and Exhibits and Schedules to, this
Agreement and (e) the words "asset" and "property" shall be construed to have
the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature
shall be construed in accordance with GAAP, as in effect from time to time,
provided that, if the Borrower notifies the Administrative Agent that the
Borrower requests an amendment to any provision hereof to eliminate the
effect of any change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request
an amendment to any provision hereof for such purpose), regardless of whether
any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of
GAAP as in effect and applied immediately before such change shall have
become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.
ARTICLE II
The Credits
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SECTION 2.01. Commitments. Subject to the terms and
conditions set forth herein, each Lender agrees (a) to make Term Loans to the
Borrower from time to time during the Term Availability Period in an
aggregate principal amount not exceeding its Term Commitment, provided that
the Borrower shall not be permitted to make more than $85,000,000 in Term
Borrowings, and (b) to make Revolving Loans to the Borrower from time to time
during the Revolving Availability Period in an aggregate principal amount
that will not result in such Lender's Revolving Exposure exceeding such
Lender's Revolving Commitment. Within the foregoing limits and subject to
the terms and conditions set forth herein, the Borrower may borrow, prepay
and reborrow Revolving Loans. Amounts repaid in respect of Term Loans may
not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan (other
than a Swingline Loan) shall be made as part of a Borrowing consisting of
Loans of the same Class and Type made by the Lenders ratably in accordance
with their respective Commitments of the applicable Class. The failure of
any Lender to make any Loan required to be made by it shall not relieve any
other Lender of its obligations hereunder, provided that the Commitments of
the Lenders are several and no Lender shall be responsible for any other
Lender's failure to make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing and
Term Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans
as the Borrower may request in accordance herewith. Notwithstanding anything
to the contrary contained herein, all Borrowings made on the Effective Date
shall be ABR Borrowings. Each Swingline Loan shall be an ABR Loan. Each
Lender at its option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan, provided that
any exercise of such option shall not affect the obligation of the Borrower
to repay such Loan in accordance with the terms of this Agreement and such
Lender shall not be entitled to any amount payable under Section 2.15 or 2.17
in respect of costs arising as a result of such exercise.
(c) At the commencement of each Interest Period for any
Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is
an integral multiple of $1,000,000 and not less than $5,000,000. At the time
that each ABR Revolving Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of $500,000 and not less than
$1,000,000, provided that an ABR Revolving Borrowing may be in an aggregate
amount that is equal to the entire unused balance of the total Revolving
Commitments or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.05(e). Each Swingline Loan shall
be in an amount that is an integral multiple of $100,000 and not less than
$500,000. Borrowings of more than one Type and Class may be outstanding at
the same time, provided that there shall not at any time be more than a total
of 15 Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement,
the Borrower shall not be entitled to request, or to elect to convert or
continue, any Borrowing if the Interest Period requested with respect thereto
would end after the Revolving Maturity Date or the Term Maturity Date, as
applicable.
SECTION 2.03. Requests for Borrowings. To request a
Revolving Borrowing or Term Borrowing, the Borrower shall notify the
Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing or (b) in the case of
an ABR Borrowing, not later than 2:00 p.m., New York City time, one Business
Day before the date of the proposed Borrowing, provided that any such notice
of an ABR Revolving Borrowing to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.05(e) may be given not later than
10:00 a.m., New York City time, on the date of the proposed Borrowing. Each
such telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent c/o The
Loan and Agency Services Group of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the Borrower. Each such
telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving
Borrowing or a Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a
Business Day;
(iv) subject to the second sentence of Section 2.02(b),
whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing, then the Borrower
shall be deemed to have selected an Interest Period of one month's duration.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms
and conditions set forth herein, the Swingline Lender agrees to make
Swingline Loans to the Borrower from time to time during the Revolving
Availability Period, in an aggregate principal amount at any time outstanding
that will not result in (i) the aggregate principal amount of outstanding
Swingline Loans exceeding $15,000,000 or (ii) the sum of the total Revolving
Exposures exceeding the total Revolving Commitments, provided that the
Swingline Lender shall not be required to make a Swingline Loan to refinance
an outstanding Swingline Loan. Within the foregoing limits and subject to
the terms and conditions set forth herein, the Borrower may borrow, prepay
and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify
the Administrative Agent of such request by telephone (confirmed by
telecopy), not later than 12:00 noon, New York City time, on the day of a
proposed Swingline Loan. Each such notice shall be irrevocable and shall
specify the requested date (which shall be a Business Day) and amount of the
requested Swingline Loan. The Administrative Agent will promptly advise the
Swingline Lender of any such notice received from the Borrower. The
Swingline Lender shall make each Swingline Loan available to the Borrower by
means of a credit to the general deposit account of the Borrower with the
Swingline Lender (or, in the case of a Swingline Loan made to finance the
reimbursement of an LC Disbursement as provided in Section 2.05(e), by
remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time,
on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 1:00 p.m., New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which
Revolving Lenders will participate. Promptly upon receipt of such notice,
the Administrative Agent will give notice thereof to each Revolving Lender,
specifying in such notice such Lender's Applicable Percentage of such
Swingline Loan or Loans. Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to
the Administrative Agent, for the account of the Swingline Lender, such
Lender's Applicable Percentage of such Swingline Loan or Loans. Each
Revolving Lender acknowledges and agrees that its obligation to acquire
participations in Swingline Loans pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever. Each
Revolving Lender shall comply with its obligation under this paragraph by
wire transfer of immediately available funds, in the same manner as provided
in Section 2.06 with respect to Loans made by such Lender (and Section 2.06
shall apply, mutatis mutandis, to the payment obligations of the Revolving
Lenders), and the Administrative Agent shall promptly pay to the Swingline
Lender the amounts so received by it from the Revolving Lenders. The
Administrative Agent shall notify the Borrower of any participations in any
Swingline Loan acquired pursuant to this paragraph, and thereafter payments
in respect of such Swingline Loan shall be made to the Administrative Agent
and not to the Swingline Lender. Any amounts received by the Swingline
Lender from the Borrower (or other party on behalf of the Borrower) in
respect of a Swingline Loan after receipt by the Swingline Lender of the
proceeds of a sale of participations therein shall be promptly remitted to
the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Revolving
Lenders that shall have made their payments pursuant to this paragraph and to
the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not
relieve the Borrower of any default in the payment thereof.
SECTION 2.05. Letters of Credit. (a) General. Subject to
the terms and conditions set forth herein, the Borrower may request the
issuance of Letters of Credit for its own account, in a form reasonably
acceptable to the Administrative Agent and the applicable Issuing Bank, at
any time and from time to time during the LC Availability Period. In the
event of any inconsistency between the terms and conditions of this Agreement
and the terms and conditions of any form of letter of credit application or
other agreement submitted by the Borrower to, or entered into by the Borrower
with, an Issuing Bank relating to any Letter of Credit, the terms and
conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension;
Certain Conditions. To request the issuance of a Letter of Credit (or the
amendment, renewal or extension of an outstanding Letter of Credit), the
Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the
applicable Issuing Bank) to an Issuing Bank and the Administrative Agent
(reasonably in advance of the requested date of issuance, amendment, renewal
or extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall
be a Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the amount of such
Letter of Credit, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare, amend, renew or extend
such Letter of Credit. If requested by the applicable Issuing Bank, the
Borrower also shall submit a letter of credit application on such Issuing
Bank's standard form in connection with any request for a Letter of Credit.
A Letter of Credit shall be issued, amended, renewed or extended only if (and
upon issuance, amendment, renewal or extension of each Letter of Credit the
Borrower shall be deemed to represent and warrant that), after giving effect
to such issuance, amendment, renewal or extension (i) the LC Exposure shall
not exceed $25,000,000 and (ii) the total Revolving Exposures shall not
exceed the total Revolving Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at
or prior to the close of business on the earlier of (i) the date one year
after the date of the issuance of such Letter of Credit (or, in the case of
any renewal or extension thereof, one year after such renewal or extension)
and (ii) the date that is five Business Days prior to the Revolving Maturity
Date.
(d) Participations. By the issuance of a Letter of Credit
(or an amendment to a Letter of Credit increasing the amount thereof) and
without any further action on the part of the applicable Issuing Bank or the
Lenders, such Issuing Bank hereby grants to each Revolving Lender, and each
Revolving Lender hereby acquires from such Issuing Bank, a participation in
such Letter of Credit equal to such Lender's Applicable Percentage of the
aggregate amount available to be drawn under such Letter of Credit. In
consideration and in furtherance of the foregoing, each Revolving Lender
hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of the applicable Issuing Bank, such Lender's
Applicable Percentage of each LC Disbursement made by such Issuing Bank and
not reimbursed by the Borrower on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to
the Borrower for any reason. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If an Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit issued by such Issuing Bank,
the Borrower shall reimburse such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than
12:00 noon, New York City time, on the date that such LC Disbursement is
made, if the Borrower shall have received notice of such LC Disbursement
prior to 10:00 a.m., New York City time, on such date, or, if such notice has
not been received by the Borrower prior to such time on such date, then not
later than 12:00 noon, New York City time, on (i) the Business Day that the
Borrower receives such notice, if such notice is received prior to 10:00
a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt, provided
that the Borrower may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.03 or 2.04 that such payment be
financed with an ABR Revolving Borrowing or Swingline Loan in an equivalent
amount and, to the extent so financed, the Borrower's obligation to make such
payment shall be discharged and replaced by the resulting ABR Revolving
Borrowing or Swingline Loan. If the Borrower fails to make such payment when
due, the Administrative Agent shall notify each Revolving Lender of the
applicable LC Disbursement, the payment then due from the Borrower in respect
thereof and such Lender's Applicable Percentage thereof. Promptly following
receipt of such notice, each Revolving Lender shall pay to the Administrative
Agent its Applicable Percentage of the payment then due from the Borrower, in
the same manner as provided in Section 2.06 with respect to Loans made by
such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment
obligations of the Revolving Lenders), and the Administrative Agent shall
promptly pay to the applicable Issuing Bank the amounts so received by it
from the Revolving Lenders. Promptly following receipt by the Administrative
Agent of any payment from the Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the applicable Issuing
Bank or, to the extent that Revolving Lenders have made payments pursuant to
this paragraph to reimburse such Issuing Bank, then to such Lenders and such
Issuing Bank as their interests may appear. Any payment made by a Revolving
Lender pursuant to this paragraph to reimburse any Issuing Bank for any LC
Disbursement (other than the funding of ABR Revolving Loans or a Swingline
Loan as contemplated above) shall not constitute a Loan and shall not relieve
the Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section shall
be absolute, unconditional and irrevocable, and shall be performed strictly
in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit or this Agreement, or any term or
provision therein, (ii) any draft or other document presented under a Letter
of Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect (unless the
applicable Issuing Bank has actual knowledge of such forgery or fraud), (iii)
payment by the applicable Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the terms
of such Letter of Credit or (iv) any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder,
except to the extent that the applicable Issuing Bank's payment under any
Letter of Credit constituted gross negligence or wilful misconduct of such
Issuing Bank. Neither the Administrative Agent, the Lenders nor any Issuing
Bank, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of such Issuing Bank,
provided that the foregoing shall not be construed to excuse the applicable
Issuing Bank from liability to the Borrower to the extent of any direct
damages (as opposed to consequential damages, claims in respect of which are
hereby waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by such Issuing Bank's failure to
exercise care when determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof. The parties hereto
expressly agree that, in the absence of gross negligence or wilful misconduct
on the part of the applicable Issuing Bank, such Issuing Bank shall be deemed
to have exercised care in each such determination. In furtherance of the
foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented that appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the applicable
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation or refuse to
accept and make payment upon such documents if such documents are not in
strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. Each Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit issued by such
Issuing Bank. The applicable Issuing Bank shall promptly notify the
Administrative Agent and the Borrower by telephone (confirmed by telecopy) of
such demand for payment and whether such Issuing Bank has made or will make
an LC Disbursement thereunder, provided that any failure to give or delay in
giving such notice shall not relieve the Borrower of its obligation to
reimburse such Issuing Bank and the Revolving Lenders with respect to any
such LC Disbursement.
(h) Interim Interest. If any Issuing Bank shall make any
LC Disbursement, then, unless the Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower
reimburses such LC Disbursement, at the rate per annum then applicable to ABR
Revolving Loans, provided that, if the Borrower fails to reimburse such LC
Disbursement when due pursuant to paragraph (e) of this Section, then Section
2.13(c) shall apply. Interest accrued pursuant to this paragraph shall be
for the account of the applicable Issuing Bank, except that interest accrued
on and after the date of payment by any Revolving Lender pursuant to
paragraph (e) of this Section to reimburse such Issuing Bank shall be for the
account of such Lender to the extent of such payment.
(i) Replacement of the Primary Issuing Bank. The Primary
Issuing Bank may be replaced at any time by written agreement among the
Borrower, the Administrative Agent, the replaced Primary Issuing Bank and the
successor Primary Issuing Bank. The Administrative Agent shall notify the
Lenders of any such replacement of the Primary Issuing Bank. At the time any
such replacement shall become effective, the Borrower shall pay all unpaid
fees accrued for the account of the replaced Primary Issuing Bank pursuant to
Section 2.12(b). From and after the effective date of any such replacement,
(i) the successor Primary Issuing Bank shall have all the rights and
obligations of the Primary Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to the
term "Primary Issuing Bank" shall be deemed to refer to such successor or to
any previous Primary Issuing Bank, or to such successor and all previous
Primary Issuing Banks, as the context shall require. After the replacement
of a Primary Issuing Bank hereunder, the replaced Primary Issuing Bank shall
remain a party hereto and shall continue to have all the rights and
obligations of an Issuing Bank under this Agreement with respect to Letters
of Credit issued by it prior to such replacement, but shall not be required
to issue additional Letters of Credit.
(j) Resignation of Issuing Banks. Any Issuing Bank (other
than the Primary Issuing Bank) may resign at any time upon not less than
30 days= prior written notice to the Borrower and the Administrative Agent.
At the time any such resignation shall become effective, the Borrower shall
pay all unpaid fees accrued for the account of the resigning Issuing Bank
pursuant to Section 2.12(b). After the resignation of an Issuing Bank
hereunder, such Issuing Bank shall remain a party hereto and shall continue
to have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it prior to such
resignation, but shall not be required to issue additional Letters of Credit.
(k) Cash Collateralization. If any Event of Default shall
occur and be continuing, on the Business Day that the Borrower receives
notice from the Administrative Agent or the Required Lenders (or, if the
maturity of the Loans has been accelerated, Revolving Lenders with LC
Exposure representing greater than 50% of the total LC Exposure) demanding
the deposit of cash collateral pursuant to this paragraph, the Borrower shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount equal to
the LC Exposure as of such date plus any accrued and unpaid interest thereon,
provided that the obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of
any Event of Default with respect to the Borrower described in clause (h) or
(i) of Article VII. Each such deposit shall be held by the Administrative
Agent as collateral for the payment and performance of the obligations of the
Borrower under this Agreement. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such deposits,
which investments shall be made at the option and sole discretion of the
Administrative Agent and at the Borrower's risk and expense, such deposits
shall not bear interest. Interest or profits, if any, on such investments
shall accumulate in such account. Moneys in such account shall be applied by
the Administrative Agent to reimburse the Issuing Bank for LC Disbursements
for which it has not been reimbursed and, to the extent not so applied, shall
be held for the satisfaction of the reimbursement obligations of the Borrower
for the LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Lenders with LC Exposure
representing greater than 50% of the total LC Exposure), be applied to
satisfy other obligations of the Borrower under this Agreement. If the
Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent
not applied as aforesaid) shall be returned to the Borrower within three
Business Days after all Events of Default have been cured or waived.
SECTION 2.06. Funding of Borrowings. (a) Each Lender
shall make each Loan to be made by it hereunder on the proposed date thereof
by wire transfer of immediately available funds by 12:00 noon, New York City
time, to the account of the Administrative Agent most recently designated by
the Administrative Agent for such purpose by notice to the Lenders, provided
that Swingline Loans shall be made as provided in Section 2.04. The
Administrative Agent will make such Loans available to the Borrower by
promptly crediting the amounts so received, in like funds, to an account of
the Borrower maintained with the Administrative Agent in New York City and
designated by the Borrower in the applicable Borrowing Request, provided that
ABR Revolving Loans made to finance the reimbursement of an LC Disbursement
as provided in Section 2.05(e) shall be remitted by the Administrative Agent
to the applicable Issuing Bank.
(b) Unless the Administrative Agent shall have received
notice from a Lender prior to the proposed date of any Borrowing that such
Lender will not make available to the Administrative Agent such Lender's
share of such Borrowing, the Administrative Agent may assume that such Lender
has made such share available on such date in accordance with paragraph (a)
of this Section and may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. In such event, if a Lender has not in
fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender agrees to pay to the
Administrative Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date such amount is
made available to the Borrower to but excluding the date of payment to the
Administrative Agent, at the Federal Funds Effective Rate or, if the Federal
Funds Effective Rate cannot be determined, a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation. In the event that the applicable Lender has not made its share
of the applicable Borrowing available within three Business Days, the
Borrower shall pay such amount to the Administrative Agent, together with
interest from the date of such Borrowing at the rate applicable to the Loans
so made available. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's Loan included in such
Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving
Borrowing and Term Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a Eurodollar Borrowing,
shall have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different
Type or to continue such Borrowing and, in the case of a Eurodollar
Borrowing, may elect Interest Periods therefor, all as provided in this
Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. This Section shall not apply to Swingline Borrowings,
which may not be converted or continued.
(b) To make an election pursuant to this Section, the
Borrower shall notify the Administrative Agent of such election by telephone
by the time that a Borrowing Request would be required under Section 2.03 if
the Borrower were requesting a Revolving Borrowing of the Type resulting from
such election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Interest Election Request in a form approved by the
Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02 and
paragraph (f) of this Section:
(i) the Borrowing to which such Interest Election
Request applies and, if different options are being elected with
respect to different portions thereof, the portions thereof to be
allocated to each resulting Borrowing (in which case the information
to be specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to
such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar
Borrowing, the Interest Period to be applicable thereto after giving
effect to such election, which shall be a period contemplated by the
definition of the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but
does not specify an Interest Period, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Borrowing prior to the end of
the Interest Period applicable thereto, then, unless such Borrowing is repaid
as provided herein, at the end of such Interest Period such Borrowing shall
be converted to an ABR Borrowing. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be
converted to an ABR Borrowing at the end of the Interest Period applicable
thereto.
SECTION 2.08. Termination and Reduction of Commitments.
(a) Unless previously terminated, the Term Commitments shall terminate at
5:00 p.m., New York City time, on the date that is the last day of the Term
Availability Period. Prior to the termination thereof in full, the Term
Commitments shall be automatically and permanently reduced at 5:00 p.m.,
New York City time, on each Term Loan Closing Date, by an aggregate principal
amount equal to the aggregate principal amount of the Term Loans made on such
date. Unless previously terminated, the Revolving Commitments shall
terminate on the Revolving Maturity Date.
(b) The Borrower may at any time terminate, or from time to
time reduce, the Revolving Commitment, provided that (i) each reduction of
the Commitments of any Class shall be in an amount that is an integral
multiple of $500,000 and not less than $1,000,000 and (ii) the Borrower shall
not terminate or reduce the Revolving Commitments if, after giving effect to
any concurrent prepayment of the Revolving Loans in accordance with
Section 2.11, the sum of the Revolving Exposures would exceed the total
Revolving Commitments.
(c) The Borrower shall notify the Administrative Agent of
any election to terminate or reduce the Commitments under paragraph (b) of
this Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any such notice, the Administrative
Agent shall advise the Lenders of the contents thereof. Each notice
delivered by the Borrower pursuant to this Section shall be irrevocable,
provided that a notice of termination of the Revolving Commitments delivered
by the Borrower may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be
revoked by the Borrower (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied. Any
termination or reduction of the Commitments of any Class shall be permanent.
Each reduction of the Commitments of any Class shall be made ratably among
the Lenders in accordance with their respective Commitments of such Class.
SECTION 2.09. Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Revolving Loan of such Lender on the Revolving Maturity Date,
(ii) to the Administrative Agent for the account of each Lender the then
unpaid principal amount of each Term Loan of such Lender as provided in
Section 2.10 and (iii) to the Swingline Lender the then unpaid principal
amount of each Swingline Loan on the earlier of the Revolving Maturity Date
and the first date after such Swingline Loan is made that is the 15th or last
day of a calendar month and is at least five Business Days after such
Swingline Loan is made, provided that on each date that a Revolving Borrowing
is made, the Borrower shall repay all Swingline Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower
to such Lender resulting from each Loan made by such Lender, including the
amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(c) The Administrative Agent shall maintain accounts in
which it shall record (i) the amount of each Loan made hereunder, the Class
and 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 to each Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder for the account of the Lenders
and each 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 Lender or the Administrative Agent to maintain such accounts
or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by
it be evidenced by a promissory note. In such event, the Borrower shall
prepare, execute and deliver to such Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 9.04) be
represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note,
to such payee and its registered assigns).
SECTION 2.10. Amortization of Term Loans. (a) Subject to
adjustment pursuant to paragraph (c) of this Section, the Borrower shall
repay Term Borrowings on each date set forth below in the aggregate principal
amount set forth opposite such date:
Date Amount
---- ------
May 23, 1999 $1,875,000
August 15, 1999 $1,875,000
November 7, 1999 $1,875,000
January 30, 2000 $1,875,000
May 21, 2000 $2,250,000
August 13, 2000 $2,250,000
November 5, 2000 $2,250,000
January 28, 2001 $2,250,000
May 20, 2001 $2,750,000
August 12, 2001 $2,750,000
November 4, 2001 $2,750,000
January 27, 2002 $2,750,000
May 19, 2002 $3,125,000
August 11, 2002 $3,125,000
November 3, 2002 $3,125,000
January 26, 2003 $3,125,000
May 18, 2003 $4,375,000
August 10, 2003 $4,375,000
November 2, 2003 $4,375,000
January 25, 2004 $4,375,000
May 16, 2004 $6,875,000
August 8, 2004 $6,875,000
October 31, 2004 $6,875,000
December 24, 2004 $6,875,000
(b) To the extent not previously paid, all Term Loans shall
be due and payable on the Term Maturity Date.
(c) If the initial aggregate amount of the Lenders' Term
Commitments exceeds the aggregate principal amount of Term Loans that are
made during the Term Availability Period, then the scheduled repayments of
Term Borrowings to be made pursuant to this Section shall be reduced ratably
by an aggregate amount equal to such excess. Any prepayment of a Term
Borrowing shall be applied to reduce the subsequent scheduled repayments of
the Term Borrowings to be made pursuant to this Section ratably.
(d) Prior to any repayment of any Term Borrowings
hereunder, the Borrower shall select the Borrowing or Borrowings to be repaid
and shall notify the Administrative Agent by telephone (confirmed by
telecopy) of such selection not later than 11:00 a.m., New York City time,
three Business Days before the scheduled date of such repayment. Each
repayment of a Borrowing shall be applied ratably to the Loans included in
the repaid Borrowing. Repayments of Term Borrowings shall be accompanied by
accrued interest on the amount repaid.
SECTION 2.11. Prepayment of Loans. (a) The Borrower shall
have the right at any time and from time to time to prepay any Borrowing in
whole or in part, subject to the requirements of this Section.
(b) In the event and on each occasion that any Net Proceeds
are received by or on behalf of Holdings, the Borrower, any other Subsidiary
or, prior to the consummation of the Merger, Acqco in respect of any
Prepayment Event, the Borrower shall, immediately after such Net Proceeds are
received, prepay Term Borrowings in an aggregate amount equal to such Net
Proceeds.
(c) Following the end of each fiscal year of Holdings,
commencing with the fiscal year ending January 31, 1999, the Borrower shall
prepay Term Borrowings in an aggregate amount equal to 75% of Excess Cash
Flow for such fiscal year, provided that such percentage shall be reduced
from 75% to 50% with respect to the mandatory prepayment under this
paragraph (c) in respect of any fiscal year ending on or after January 28,
2001, if the Senior Leverage Ratio on the Applicable Rate Determination Date
next following the end of such fiscal year is less than 1.50 to 1.00. Each
prepayment pursuant to this paragraph shall be made on or before the date on
which financial statements are delivered pursuant to Section 5.01 with
respect to the fiscal year for which Excess Cash Flow is being calculated
(and in any event within 90 days after the end of such fiscal year).
(d) In the event that Subordinated Notes are issued prior
to the 8% PIK Debentures Issuance Date, the Borrower shall, immediately after
the Net Proceeds of such Subordinated Notes are received, prepay Term
Borrowings in an amount equal to the difference between (i) the aggregate
amount of such Net Proceeds and (ii) the amount of such Net Proceeds that
will be used to redeem (A) Senior Notes that remain outstanding following the
consummation of the Debt Tender Offer and (B) Convertible Subordinated Notes.
In the event that Subordinated Notes are issued on or after the 8% PIK
Debentures Issuance Date, the Borrower shall, immediately after the Net
Proceeds of such Subordinated Notes are received, prepay Term Borrowings in
an amount equal to the difference between (i) the aggregate amount of such
net cash proceeds and (ii) the amount of such Net Proceeds that are used by
the Borrower to make a dividend to Holdings and applied by Holdings to redeem
8% PIK Debentures as contemplated by Section 6.08.
(e) Prior to any optional or mandatory prepayment of
Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings
to be prepaid and shall specify such selection in the notice of such
prepayment pursuant to paragraph (f) of this Section.
(f) The Borrower shall notify the Administrative Agent
(and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case
of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York
City time, three Business Days before the date of prepayment, (ii) in the
case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York
City time, one Business Day before the date of prepayment or (iii) in the
case of prepayment of a Swingline Loan, not later than 12:00 noon, New York
City time, on the date of prepayment. Each such notice shall be irrevocable
and shall specify the prepayment date, the principal amount of each Borrowing
or portion thereof to be prepaid and, in the case of a mandatory prepayment,
a reasonably detailed calculation of the amount of such prepayment, provided
that, if a notice of optional prepayment is given in connection with a
conditional notice of termination of the Revolving Commitments as
contemplated by Section 2.08, then such notice of prepayment may be revoked
if such notice of termination is revoked in accordance with Section 2.08.
Promptly following receipt of any such notice (other than a notice relating
solely to Swingline Loans), the Administrative Agent shall advise the Lenders
of the contents thereof. Each partial prepayment of any Borrowing shall be
in an amount that would be permitted in the case of an advance of a Borrowing
of the same Type as provided in Section 2.02, except as necessary to apply
fully the required amount of a mandatory prepayment. Each prepayment of a
Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.13.
(g) The Borrower shall repay or prepay Revolving Borrowings
and shall refrain from making additional Revolving Borrowings to the extent
necessary in order that there shall be a period of at least 30 consecutive
days in each fiscal year of Holdings during which no Revolving Borrowings
shall be outstanding.
SECTION 2.12. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Rate on the average daily unused amount of the
Commitments of such Lender during the period from and including the Effective
Date to but excluding the date on which such Commitments terminate. Accrued
commitment fees shall be payable in arrears on the last Business Day of
March, June, September and December of each year and on the date on which the
Revolving Commitments terminate, commencing on the first such date to occur
after the date hereof. All commitment fees shall be computed on the basis of
a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). For purposes of
computing commitment fees with respect to Revolving Commitments, a Revolving
Commitment of a Lender shall be deemed to be used to the extent of the
outstanding Revolving Loans and LC Exposure of such Lender (and the Swingline
Exposure of such Lender shall be disregarded for such purpose).
(b) The Borrower agrees to pay (i) to the Administrative
Agent for the account of each Revolving Lender a participation fee with
respect to its participations in Letters of Credit, which shall accrue (A) in
the case of standby Letters of Credit, at the same Applicable Rate as is used
to determine the rate of interest on Eurodollar Revolving Loans and (B) in
the case of trade Letters of Credit, at 60% of such Applicable Rate, in each
case on the average daily amount of such Lender's LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the
period from and including the Effective Date to but excluding the later of
the date on which such Lender's Revolving Commitment terminates and the date
on which such Lender ceases to have any LC Exposure, and (ii) to each Issuing
Bank, a fronting fee, which shall accrue at the rate of 3 of 1% per annum (or
such other rate as shall be agreed upon in writing by the Borrower and such
Issuing Bank) on the average daily amount of the portion of the LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
attributable to Letters of Credit issued by such Issuing Bank, in each case
during the period from and including the Effective Date to but excluding the
later of the date of termination of the Revolving Commitments and the date on
which there ceases to be any LC Exposure, as well as such Issuing Bank's
standard fees with respect to the issuance, amendment, renewal or extension
of any Letter of Credit or processing of drawings thereunder. Participation
fees and fronting fees accrued through and including the last Business Day of
March, June, September and December of each year shall be payable on such
day, commencing on the first such date to occur after the Effective Date,
provided that all such fees shall be payable on the date on which the
Revolving Commitments terminate and any such fees accruing after the date on
which the Revolving Commitments terminate shall be payable on demand. Any
other fees payable to an Issuing Bank pursuant to this paragraph shall be
payable within 10 days after demand by such Issuing Bank. All participation
fees and fronting fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the
first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately
agreed upon in writing between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates
due, in immediately available funds, to the Administrative Agent (or to the
applicable Issuing Bank, in the case of fees payable to such Issuing Bank)
for distribution, in the case of commitment fees and participation fees, to
the Lenders entitled thereto. Fees paid shall not be refundable under any
circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each
ABR Borrowing shall bear interest at the Alternate Base Rate plus the
Applicable Rate, except that each Swingline Loan shall bear interest at the
Alternate Base Rate plus 1.25%.
(b) The Loans comprising each Eurodollar Borrowing shall
bear interest at the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration
or otherwise, such overdue amount shall bear interest, after as well as
before judgment, at a rate per annum equal to (i) in the case of overdue
principal of any Loan, 2% plus the rate otherwise applicable to such Loan as
provided in the preceding paragraphs of this Section or (ii) in the case of
any other amount, 2% plus the rate applicable to ABR Revolving Loans as
provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in
arrears on each Interest Payment Date for such Loan and, in the case of
Revolving Loans, upon termination of the Revolving Commitments, provided that
(i) interest accrued pursuant to paragraph (c) of this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of any
Loan (other than a prepayment of an ABR Revolving Loan prior to the end of
the Revolving Availability Period), accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any Eurodollar Loan
prior to the end of the current Interest Period therefor, accrued interest on
such Loan shall be payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis
of a year of 360 days, except that interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366 days
in a leap year), and in each case shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). The
applicable Alternate Base Rate or Adjusted LIBO Rate shall be determined by
the Administrative Agent, and such determination shall be conclusive absent
manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO Rate
for such Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders that the Adjusted LIBO Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders of making or
maintaining their Loans included in such Borrowing for such Interest
Period;
then the Administrative Agent shall give notice thereof to the Borrower and
the Lenders by telephone or telecopy as promptly as practicable thereafter
and, until the Administrative Agent notifies the Borrower and the Lenders
that the circumstances giving rise to such notice no longer exist, (i) any
Interest Election Request that requests the conversion of any Borrowing to,
or continuation of any Borrowing as, a Eurodollar Borrowing shall be
ineffective and (ii) if any Borrowing Request requests a Eurodollar
Borrowing, such Borrowing shall be made as an ABR Borrowing.
SECTION 2.15. Increased Costs. (a) If any Change in Law
shall:
(i) 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, any Lender (except any
such reserve requirement reflected in the Adjusted LIBO Rate) or any
Issuing Bank; or
(ii) impose on any Lender or any Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
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 of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or
such Issuing Bank of participating in, issuing or maintaining any Letter of
Credit or to reduce the amount of any sum received or receivable by such
Lender or such Issuing Bank hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender or such Issuing Bank,
as the case may be, such additional amount or amounts as will compensate such
Lender or such Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or any Issuing Bank determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or such Issuing Bank's capital
or on the capital of such Lender's or such Issuing Bank's holding company, if
any, as a consequence of this Agreement or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by such Issuing Bank, to a level below that which such Lender
or such Issuing Bank or such Lender's or such Issuing Bank's holding company
could have achieved but for such Change in Law (taking into consideration
such Lender's or such Issuing Bank's policies and the policies of such
Lender's or such Issuing Bank's holding company with respect to capital
adequacy), then from time to time the Borrower will pay to such Lender or
such Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender or such Issuing Bank or such Lender's or such
Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or an Issuing Bank setting
forth the amount or amounts necessary to compensate such Lender or such
Issuing Bank or its holding company, as the case may be, as specified in
paragraph (a) or (b) of this Section shall be delivered to the Borrower (with
a copy to the Administrative Agent) and shall be conclusive absent manifest
error. The Borrower shall pay such Lender or the Issuing Bank, as the case
may be, the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender or any
Issuing Bank to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or such Issuing Bank's right to demand
such compensation, provided that the Borrower shall not be required to
compensate a Lender or any Issuing Bank pursuant to this Section for any
increased costs or reductions incurred more than 180 days prior to the date
that such Lender or such Issuing Bank or Administrative Agent, as the case
may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or such Issuing Bank's
intention to claim compensation therefor, and provided further that, if the
Change in Law giving rise to such increased costs or reductions is
retroactive, then the 180-day period referred to above shall be extended to
include the period of retroactive effect thereof.
SECTION 2.16. Break Funding Payments. In the event of (a)
the payment of any principal of any Eurodollar Loan other than on the last
day of an Interest Period applicable thereto (including as a result of an
Event of Default), (b) the conversion of any Eurodollar Loan other than on
the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Revolving Loan or Term Loan on the
date specified in any notice delivered pursuant hereto (regardless of whether
such notice may be revoked under Section 2.11(g) and is revoked in accordance
therewith), or (d) the assignment of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto as a result of a request
by the Borrower pursuant to Section 2.19, then, in any such event, the
Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, such loss,
cost or expense to any Lender shall be deemed to include an amount determined
by such Lender to be the excess, if any, of (i) the amount of interest that
would have accrued on the principal amount of such Loan had such event not
occurred, at the Adjusted LIBO Rate that would have been applicable to such
Loan, for the period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period
for such Loan), over (ii) the amount of interest that would accrue on such
principal amount for such period at the LIBO Rate at the commencement of such
period. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be
delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof, provided that the Borrower
shall not be required to pay to a Lender any amount under this Section for
any loss, cost or expense attributable to an event which occurred more than
180 days prior to the date the Borrower receives such certificate from such
Lender.
SECTION 2.17. Taxes. (a) Any and all payments by or on
account of any obligation of the Borrower hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes, provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments,
then (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section) the Administrative Agent, Lender or Issuing Bank
(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 Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent,
each Lender and each Issuing Bank, within 10 days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent, such Lender or such Issuing Bank, as the case may
be, on or with respect to any payment by or on account of any obligation of
the Borrower hereunder or under any other Loan Document (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the
amount of such payment or liability delivered to the Borrower by a Lender or
an Issuing Bank, or by the Administrative Agent on its own behalf or on
behalf of a Lender or an Issuing Bank, shall be conclusive absent manifest
error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the
Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence
of such payment reasonably satisfactory to the Administrative Agent.
(e) Each Lender that is not incorporated under the laws of
the United States of America or a state thereof shall:
(i) deliver to the Borrower and the Administrative Agent
(A) two duly completed copies of the United States Internal Revenue
Service Form 1001 or 4224, or successor applicable form, as the case
may be, and (B) an Internal Revenue Service Form W-8 or W-9, or
successor applicable form, as the case may be;
(ii) deliver to the Borrower and the Administrative Agent
two further copies of any such form or certification on or before the
date that any such form or certification expires or becomes obsolete
and after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and
completing such forms or certifications as may reasonably be
requested by the Borrower or the Administrative Agent;
unless in any such case an event (including any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which
would prevent such Lender from duly completing and delivering any such form
with respect to it and such Lender so advises the Borrower and the
Administrative Agent. Such Lender shall certify (i) in the case of a Form
1001 or 4224, that it is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes
and (ii) in the case of a Form W-8 or W-9, that it is entitled to an
exemption from United States backup withholding tax. Each Person that shall
become a Lender or a participant pursuant to Section 9.04 shall, upon the
effectiveness of the related transfer, be required to provide all of the
forms and statements required pursuant to this subsection, provided that in
the case of a participant such participant shall furnish all such required
forms and statements to the Lender from which the related participation shall
have been purchased.
SECTION 2.18. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs. (a) The Borrower shall make each payment required to
be made by it hereunder or under any other Loan Document (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts
payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to 12:00 noon,
New York City time, on the date when due, in immediately available funds,
without set-off or counterclaim. Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have
been received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative
Agent c/o The Loan and Agency Services Group at its offices at One Chase
Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, except payments to be
made directly to an Issuing Bank or the Swingline Lender as expressly
provided herein and except that payments pursuant to Sections 2.15, 2.16,
2.17 and 9.03 shall be made directly to the Persons entitled thereto and
payments pursuant to other Loan Documents shall be made to the Persons
specified therein. The Administrative Agent shall distribute any such
payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment
under any Loan Document shall be due on a day that is not a Business Day, the
date for payment shall be extended to the next succeeding Business Day, and,
in the case of any payment accruing interest, interest thereon shall be
payable for the period of such extension. All payments under each Loan
Document shall be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such
funds shall be applied (i) first, towards payment of interest and fees then
due hereunder, ratably among the parties entitled thereto in accordance with
the amounts of interest and fees then due to such parties, and (ii) second,
towards payment of principal and unreimbursed LC Disbursements then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such
parties.
(c) If any Lender shall, by exercising any right of set-off
or counterclaim or otherwise, obtain payment in respect of any principal of
or interest on any of its Revolving Loans, Term Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving payment
of a greater proportion of the aggregate amount of its Revolving Loans, Term
Loans and participations in LC Disbursements and Swingline Loans and accrued
interest thereon than the proportion received by any other Lender, then the
Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Revolving Loans, Term Loans and participations
in LC Disbursements and Swingline Loans of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans, Term Loans and
participations in LC Disbursements and Swingline Loans, provided that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be construed to apply to
any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in LC Disbursements to any assignee or participant,
other than to the Borrower or any Subsidiary or Affiliate thereof (as to
which the provisions of this paragraph shall apply). The Borrower consents
to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off
and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of the Borrower in the amount of such
participation.
(d) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Banks
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to
the Lenders or the Issuing Banks, as the case may be, the amount due. In
such event, if the Borrower has not in fact made such payment, then each of
the Lenders or the applicable Issuing Banks, as the case may be, severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or such Issuing Banks with interest thereon, for
each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of
the Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required
to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b),
2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to
satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.19. Mitigation Obligations; Replacement of
Lenders. (a) If any Lender requests compensation under Section 2.15, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to
Section 2.17, then such Lender shall use reasonable efforts but shall be
under no obligation either to designate a different lending office for
funding or booking its Loans hereunder to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the
judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may
be, in the future and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender.
The Borrower hereby agrees to pay all reasonable costs and expenses incurred
by any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15,
or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to
Section 2.17, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense and effort, upon notice
to such Lender and the Administrative Agent, require such Lender to assign
and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment), provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Revolving Commitment
is being assigned, the Issuing Bank and Swingline Lender), which consent
shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans and
participations in LC Disbursements and Swingline Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest
and fees) or the Borrower (in the case of all other amounts) and (iii) at the
time of such assignment, no Default has occurred and is continuing. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and
delegation cease to apply.
ARTICLE III
Representations and Warranties
------------------------------
Each of Holdings, the Borrower and, prior to the Merger,
Acqco represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of Holdings, the
Borrower, the Subsidiaries (other than any Inactive Subsidiaries) and, prior
to the Merger, Acqco is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, has all requisite
power and authority to carry on its business as now conducted and, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified
to do business in, and is in good standing in, every jurisdiction where such
qualification is required.
SECTION 3.02. Authorization; Enforceability. The
Transactions to be entered into by each Loan Party are within such Loan
Party's corporate powers and have been duly authorized by all necessary
corporate and, if required, stockholder action (other than any action by the
stockholders of Holdings to approve the Merger). This Agreement has been
duly executed and delivered by each of Acqco, Holdings and the Borrower and
constitutes, and each other Loan Document to which any Loan Party is to be a
party, when executed and delivered by such Loan Party, will constitute, a
legal, valid and binding obligation of Acqco, Holdings, the Borrower or such
Loan Party (as the case may be), enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in
equity or at law, and an implied covenant of good faith and fair dealing.
SECTION 3.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except
(i) such as have been obtained or made and are in full force and effect,
(ii) filings necessary to perfect Liens created under the Loan Documents,
(iii) the filing of the certificates of merger necessary to accomplish the
Merger with, and their acceptance by, the Department of State of the State of
New York and any necessary approval of the Merger by the stockholders of
Holdings, in each case pursuant to the Business Corporation Law of the State
of New York, (iv) filings and other actions required pursuant to the
Securities Act of 1933, the Securities Exchange Act of 1934 and the
respective rules and regulations thereunder in connection with the Merger and
any necessary approval thereof by the stockholders of Holdings, (v) filings
with the New York Stock Exchange in connection with the Merger, (vi) filings
and other actions required pursuant to state securities or blue sky laws in
connection with the Merger and (vii) filings in connection with the issuance
of the Subordinated Notes, (b) will not violate any applicable law or
regulation or the charter, by-laws or other organizational documents of
Acqco, Holdings, the Borrower or any of the Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any
material indenture, agreement or other instrument binding upon Acqco,
Holdings, the Borrower or any of the Subsidiaries or their assets, or give
rise to a right thereunder to require any payment to be made by Acqco,
Holdings, the Borrower or any of the Subsidiaries except for defaults under
the Existing Mortgages and rights to require repayment under the Convertible
Subordinated Notes, in each case arising from the Transactions, and (d) will
not result in the creation or imposition of any Lien on any asset of Acqco,
Holdings, the Borrower or any of the Subsidiaries, except Liens created under
the Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse
Change. (a) Each of Holdings and the Borrower has heretofore furnished to
the Lenders its consolidated balance sheets and statements of income,
stockholders equity and cash flows (i) as of and for the fiscal year ended
January 26, 1997, reported on by Price Waterhouse, independent public
accountants, and (ii) as of and for the fiscal quarter and the portion of the
fiscal year ended November 2, 1997, certified by its Financial Officer. Such
financial statements present fairly, in all material respects, the financial
position and results of operations and cash flows of each of (A) Holdings and
the consolidated Subsidiaries and (B) the Borrower and the consolidated
Borrower Subsidiaries as of such dates and for such periods in accordance
with GAAP, subject to year-end audit adjustments and the absence of footnotes
in the case of the statements referred to in clause (ii) above.
(b) Holdings has heretofore furnished to the Lenders its
pro forma consolidated balance sheet as of February 1, 1998, prepared giving
effect to the Transactions as if the Transactions had occurred on such date.
Such pro forma estimated consolidated balance sheet (i) has been prepared in
good faith based on the same assumptions used to prepare the pro forma
financial statements included in the Information Memorandum (which
assumptions are believed by Acqco, Holdings and the Borrower to be
reasonable) and (ii) presents fairly, in all material respects, the pro forma
financial position of Holdings and its consolidated subsidiaries as of the
Effective Date as if the Transactions had occurred on such date.
(c) Except as disclosed in the financial statements
referred to above or the notes thereto or in the Information Memorandum and
except for the Disclosed Matters, after giving effect to the Transactions,
none of Acqco, Holdings, the Borrower or the Subsidiaries has, as of the
Effective Date, any material contingent liabilities, unusual long-term
commitments or unrealized losses.
(d) Since January 26, 1997, there has been no material
adverse change in the business, assets, operations, properties or financial
condition or, as of the Effective Date only, prospects of Holdings, the
Borrower and the Subsidiaries (and, prior to the Merger, Acqco), taken as a
whole.
SECTION 3.05. Properties. (a) Each of Holdings, the
Borrower and the Subsidiaries (other than any Inactive Subsidiaries) has good
title to, or valid leasehold interests in, all its real and personal property
material to its business (including its Mortgaged Properties), except for
minor defects in title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties for their
intended purposes and except as could not reasonably be expected to have a
Material Adverse Effect.
(b) Each of Holdings, the Borrower and the Subsidiaries
(other than any Inactive Subsidiaries) owns, or is licensed to use, all
trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by Holdings, the Borrower and
the Subsidiaries does not infringe upon the rights of any other Person,
except for any such infringements that, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
(c) Schedule 3.05 sets forth the address of each real
property that is owned or leased by Holdings, the Borrower or any of the
Subsidiaries (other than any Inactive Subsidiaries) as of the Effective Date
after giving effect to the Transactions.
(d) As of the Effective Date, none of Holdings, the
Borrower or any of the Subsidiaries has received notice of, or has knowledge
of, any pending or contemplated condemnation proceeding affecting any
Mortgaged Property or any sale or disposition thereof in lieu of
condemnation. Neither any Mortgaged Property nor any interest therein is
subject to any right of first refusal, option or other contractual right to
purchase such Mortgaged Property or interest therein except such rights or
options that, individually and in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters.
(a) There are no actions, suits or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of Acqco,
Holdings or the Borrower, threatened against or affecting Acqco, Holdings,
the Borrower or any of the Subsidiaries (i) as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined,
could reasonably be expected, individually or in the aggregate, to result in
a Material Adverse Effect (other than the Disclosed Matters) or (ii) that
could reasonably be expected to have a Material Adverse Effect on the rights
and remedies of the Lenders under the Loan Documents or the consummation of
the Transactions.
(b) Except for the Disclosed Matters and except with
respect to any other matters that, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect, none of
Acqco, Holdings, the Borrower or any of the Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law,
(ii) has become subject, to the Borrower's knowledge, to any Environmental
Liability, (iii) has received written notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis that could reasonably be
expected to result in any Environmental Liability.
(c) Since the date of this Agreement, to the Borrower's
knowledge, there has been no change in the status of the Disclosed Matters
that, individually or in the aggregate, has resulted in, or could reasonably
be expected to result in, a Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of
Acqco, Holdings, the Borrower and the Subsidiaries is in compliance with all
laws, regulations and orders of any Governmental Authority applicable to it
or its property and all indentures, agreements and other instruments binding
upon it or its property, except for defaults under the Existing Mortgages
arising from the Transactions and except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect. No Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. None
of Acqco, Holdings, the Borrower or any of the Subsidiaries (except for the
Inactive Subsidiaries) is (a) an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of Acqco, Holdings, the Borrower
and the Subsidiaries has timely filed or caused to be filed all Tax returns
and reports required to have been filed and has paid or caused to be paid all
Taxes required to have been paid by it, except (a) Taxes that are being
contested in good faith by appropriate proceedings and for which Acqco,
Holdings, the Borrower or such Subsidiary, as applicable, has set aside on
its books adequate reserves in accordance with GAAP or (b) to the extent that
the failure to do so could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such
ERISA Events for which liability is reasonably expected to occur, could
reasonably be expected to result in a Material Adverse Effect. The present
value of all accumulated benefit obligations under each Plan (based on the
assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than $2,500,000 the fair market value
of the assets of such Plan, and the present value of all accumulated benefit
obligations of all underfunded Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed by more than $5,000,000 the fair market value of the assets of all
such underfunded Plans.
SECTION 3.11. Disclosure. (a) There is no fact known to
Acqco, Holdings or the Borrower that could reasonably be expected to result
in a Material Adverse Effect that has not been disclosed herein or in any
document, certificate or agreement furnished to the Lenders in connection
with the Transactions. None of the reports, financial statements,
certificates or other information furnished by or on behalf of any Investor
or Loan Party to the Administrative Agent or any Lender in connection with
the negotiation of this Agreement or any other Loan Document or delivered
hereunder or thereunder (as modified or supplemented by other information so
furnished prior to the time when this representation is being made or deemed
made) other than projected financial information, taken as a whole, contains
any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(b) The projections and pro forma financial information
contained in the information and data referred to in paragraph (a) above were
based on good faith estimates and assumptions believed by such Persons to be
reasonable at the time made, it being recognized by the Lenders that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may
differ from the projected results.
SECTION 3.12. Subsidiaries. As of the Effective Date,
Holdings does not have any subsidiaries other than the subsidiaries listed on
Schedule 3.12. Schedule 3.12 sets forth the name of, and the direct or
indirect ownership interest of Holdings in, each Subsidiary listed thereon
and identifies each Subsidiary that is a Subsidiary Loan Party, in each case
as of the Effective Date. Each Subsidiary identified on Schedule 1.01(d) as
an Inactive Subsidiary (a) owns assets having a fair market value not in
excess of $1,000,000 in the aggregate (excluding (i) assets that are
recognized on its balance sheet in accordance with Financial Accounting
Standards Boards Statement Number 87 and that relate to the overfunded status
of the Cudahy Company Hourly Employees Pension Plan and (ii) the intercompany
accounts listed on Schedule 6.01) and (b) does not generate annual revenues
in excess of $500,000.
SECTION 3.13. Insurance. Schedule 3.13 sets forth a
description of all insurance maintained by or on behalf of Acqco, Holdings,
the Borrower and the Subsidiaries as of the Effective Date.
SECTION 3.14. Labor Matters. As of the Effective Date,
there are no strikes, lockouts or slowdowns against Acqco, Holdings, the
Borrower or any Subsidiary pending or, to the knowledge of Acqco, Holdings or
the Borrower, threatened, except those that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect. None of Holdings, the Borrower or any of the Subsidiaries (or, prior
to the Merger, Acqco) is engaged in any unfair labor practice that could
reasonably be expected to have a Material Adverse Effect. The consummation
of the Transactions will not give rise to any right of termination or right
of renegotiation on the part of any union under any collective bargaining
agreement to which Acqco, Holdings, the Borrower or any Subsidiary is bound
other than collective bargaining agreements that, individually and in the
aggregate, are not material to Holdings, the Borrower and the other
Subsidiaries taken as a whole.
SECTION 3.15. Solvency. With respect to each of (a) the
time that is immediately after the consummation of the Transactions to occur
on the Effective Date and immediately following the making of each Loan made
on the Effective Date and after giving effect to the application of the
proceeds of such Loans and (b) the time that is immediately after the
consummation of the Merger and immediately following the making of each Loan
made substantially simultaneously with the consummation of the Merger and
after giving effect to the application of the proceeds of such Loans, (i) the
fair value of the assets of Holdings and the Subsidiaries on a consolidated
basis, at a fair valuation, will exceed the debts and liabilities of Holdings
and the Subsidiaries on a consolidated basis, subordinated, contingent or
otherwise; (ii) the present fair saleable value of the property of Holdings
and the Subsidiaries on a consolidated basis will be greater than the amount
that will be required to pay the probable liability of the debts and other
liabilities of Holdings and the Subsidiaries on a consolidated basis,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (iii) Holdings and the Subsidiaries on a
consolidated basis will be able to pay the debts and liabilities of Holdings
and the Subsidiaries on a consolidated basis, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured; and
(iv) Holdings and the Subsidiaries on a consolidated basis will not have
unreasonably small capital with which to conduct the business in which they
are engaged as such business is now conducted and is proposed to be conducted
following the Effective Date.
SECTION 3.16. Security Documents. (a) When executed and
delivered, the Pledge Agreement will be effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable security interest in the Collateral (as defined in the
Pledge Agreement) and, when the portion of the Collateral constituting
certificated securities (as defined in the Uniform Commercial Code) is
delivered to the Collateral Agent, the Pledge Agreement shall constitute a
fully perfected first priority Lien on, and security interest in, all right,
title and interest of the pledgor thereunder in such Collateral, in each case
prior and superior in right to any other Person.
(b) The Security Agreement is effective to create in favor
of the Collateral Agent, for the ratable benefit of the Secured Parties, a
legal, valid and enforceable security interest in the Collateral (as defined
in the Security Agreement) and, when financing statements in appropriate form
are filed in the offices specified on Schedule 6 to each of the Perfection
Certificates, the Security Agreement shall constitute a fully perfected Lien
on, and security interest in, all right, title and interest of the grantors
thereunder in such Collateral to the extent perfection can be obtained by
filing Uniform Commercial Code financing statements, other than the
Intellectual Property (as defined in the Security Agreement) in which a
security interest may be perfected by filing, recording or registering a
security agreement, financing statement or analogous document in the United
States Patent and Trademark Office or the United States Copyright Office, as
applicable, in each case prior and superior in right to any other Person to
the extent perfection can be obtained by filing Uniform Commercial Code
financing statements, other than with respect to Liens expressly permitted by
Section 6.02.
(c) When the Security Agreement is filed in the United
States Patent and Trademark Office and the United States Copyright Office,
the security interest created thereunder shall constitute a fully perfected
Lien on, and security interest in, all right, title and interest of the Loan
Parties in the Intellectual Property (as defined in the Security Agreement)
in which a security interest may be perfected by filing, recording or
registering a security agreement, financing statement or analogous document
in the United States Patent and Trademark Office or the United States
Copyright Office, as applicable, in each case prior and superior in right to
any other Person, other than with respect to the rights of Persons pursuant
to Liens expressly permitted by Section 6.02 (it being understood that
subsequent recordings in the United States Patent and Trademark Office and
the United States Copyright Office may be necessary to perfect a lien on
registered trademarks, trademark applications and copyrights acquired by the
Loan Parties after the date hereof).
(d) The Mortgages are effective to create, subject to the
exceptions listed in each title insurance policy covering such Mortgage, in
favor of the Collateral Agent, for the ratable benefit of the Secured
Parties, a legal, valid and enforceable Lien on all of the Loan Parties'
right, title and interest in and to the Mortgaged Properties thereunder and
the proceeds thereof, and when the Mortgages are filed in the offices
specified on Schedule 3.16(d), the Mortgages shall constitute a Lien on, and
security interest in, all right, title and interest of the Loan Parties in
such Mortgaged Properties and the proceeds thereof, in each case prior and
superior in right to any other person, other than with respect to the rights
of Persons pursuant to Liens expressly permitted by Section 6.02.
SECTION 3.17. Federal Reserve Regulations. (a) None of
Holdings, the Borrower, any of the Borrower Subsidiaries or, prior to the
Merger, Acqco is engaged principally, or as one of its important activities,
in the business of extending credit for the purpose of buying or carrying
Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of
Credit will be used, whether directly or indirectly, and whether immediately,
incidentally or ultimately, for any purpose that entails a violation of, or
that is inconsistent with, the provisions of the Regulations of the Board,
including Regulation G, U or X.
SECTION 3.18. Merger. (a) The Merger Agreement has been
duly authorized, executed and delivered by each of Acqco and Holdings and
constitutes a legal, valid and binding obligation of each such corporation,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors'
rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law, and an implied
covenant of good faith and fair dealing. A true, correct and complete copy
of the Merger Agreement has been furnished to the Administrative Agent.
(b) As of the Effective Date, each of the representations
and warranties made by Acqco and Holdings in the Merger Agreement is true and
correct in all material respects.
SECTION 3.19. Capitalization of Holdings. As of the date
of this Agreement, the authorized capital stock of Holdings consists of
100,000,000 shares of common stock, par value $1.00 per share, of which
29,122,777 shares are issued and outstanding, and 1,000,000 shares of
preferred stock, par value $1.00 per share, of which no shares are
outstanding. All such outstanding shares of stock are fully paid and
nonassessable.
ARTICLE IV
Conditions
----------
SECTION 4.01. Effective Date. The obligations of the
Lenders to make Loans and of any Issuing Bank to issue Letters of Credit
hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with
Section 9.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a
favorable written opinion (addressed to the Administrative Agent and
the Lenders and dated the Effective Date) of each of (i) Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for Holdings and the
Borrower prior to the Merger, substantially in the form of
Exhibit B-1, (ii) Xxxxxxx Xxxxxxx & Xxxxxxxx, special New York
counsel for, prior to the Merger, Acqco and, immediately following
the consummation of the Merger, Holdings and the Borrower,
substantially in the form of Exhibit B-2, (iii) J. Xxxxxxxx
Xxxxxxxxxx, General Counsel of Holdings, substantially in the form of
Exhibit B-3, and (iv) Xxxxxx, Xxxxxxxxx & Xxxxxxxxx, special counsel
for Holdings and the Borrower, substantially in the form of Exhibit
B-4, and, in the case of each such opinion required by this
paragraph, covering such other matters relating to the Loan Parties,
the Loan Documents or the Transactions as the Required Lenders shall
reasonably request. Acqco, Holdings and the Borrower hereby request
such counsel to deliver such opinions to the Administrative Agent or
its counsel.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and
good standing of each Loan Party, the authorization of the
Transactions and any other legal matters relating to the Loan
Parties, the Loan Documents or the Transactions, all in form and
substance reasonably satisfactory to the Administrative Agent and its
counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President, a
Vice President or a Financial Officer of the Borrower, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of
Section 4.02.
(e) The Administrative Agent shall have received all fees
and other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by any Loan
Party hereunder or under any other Loan Document.
(f) The Administrative Agent shall have received
counterparts of the Pledge Agreement signed on behalf of Acqco,
Holdings, the Borrower and each Subsidiary Loan Party thereto,
together with stock certificates representing all the outstanding
shares of capital stock of the Borrower and each Subsidiary (except
any Inactive Subsidiary) owned by or on behalf of any Loan Party as
of the Effective Date after giving effect to the Transactions (except
that stock certificates representing shares of common stock of a
Foreign Subsidiary may be limited to 65% of the outstanding shares of
common stock of such Foreign Subsidiary), promissory notes evidencing
all intercompany Indebtedness owed to any Loan Party by the Borrower
or any Subsidiary as of the Effective Date after giving effect to the
Transactions and undated stock powers and instruments of transfer,
endorsed in blank, with respect to such stock certificates and
promissory notes.
(g) The Administrative Agent shall have received
counterparts of the Security Agreement signed on behalf of Acqco,
Holdings, the Borrower and each Subsidiary Loan Party, together with
the following:
(i) all documents and instruments, including
Uniform Commercial Code financing statements, required by
law, or reasonably requested by the Administrative Agent, to
be filed, registered or recorded to create or perfect the
Liens intended to be created under the Security Agreement;
and
(ii) a completed Perfection Certificate dated
the Effective Date and signed by an executive officer or
Financial Officer of each of Holdings and the Borrower,
together with all attachments contemplated thereby,
including the results of a search of the Uniform Commercial
Code (or equivalent) filings made with respect to the Loan
Parties in the jurisdictions contemplated by the Perfection
Certificate and copies of the financing statements (or
similar documents) disclosed by such search and evidence
reasonably satisfactory to the Administrative Agent that the
Liens indicated by such financing statements (or similar
documents) are permitted by Section 6.02 or have been
released.
(h) The Administrative Agent shall have received (i)
counterparts of the Parent Guarantee Agreement signed on behalf of
Acqco and Holdings, (ii) counterparts of the Subsidiary Guarantee
Agreement signed on behalf of each subsidiary of the Borrower that is
not a Foreign Subsidiary or an Inactive Subsidiary and (iii)
counterparts of the Indemnity, Subrogation and Contribution Agreement
signed on behalf of the Borrower and each Subsidiary Loan Party.
(i) The Administrative Agent shall have received evidence
satisfactory to it that the insurance required by Section 5.07 is in
effect.
(j) All material conditions to the purchase of Shares in
the Equity Tender Offer shall have been satisfied without giving
effect to any waiver or amendment thereof not approved by the
Administrative Agent, and Acqco shall have accepted for payment
pursuant to the Equity Tender Offer a number of Shares that, on a
fully diluted basis (without giving effect to any potential dilution
that could result from the exercise, after the consummation of the
Equity Tender Offer, of conversion rights by any holder of the
Convertible Subordinated Notes), shall be sufficient to enable Acqco
to effect stockholder approval of the Merger under applicable law and
the charter and by-laws of Holdings without the vote of any other
shareholder.
(k) Substantially simultaneously with the consummation of
the Equity Tender Offer, (i) Holdings's existing board of directors
shall have taken all steps necessary to cause persons designated by
Cypress to constitute a majority of Holdings's board of directors and
(ii) Xxxxxx X. Xxxxxx shall have assumed management responsibilities
with respect to Holdings and the Borrower.
(l) All material conditions to the purchase of the Senior
Notes in the Debt Tender Offer shall have been satisfied without
giving effect to any waiver or amendment thereof not approved by the
Administrative Agent. Holdings shall have repurchased not less than
a majority in principal amount of the Senior Notes in accordance with
the Debt Tender Offer Materials. The Supplemental Indenture dated as
of December [17], 1997, to the Senior Notes Indenture, in the form
previously approved by the Administrative Agent, shall have been
executed and delivered and be in full force and effect.
(m) The consummation of the Tender Offers and the other
transactions contemplated hereby shall not (i) violate any applicable
law, statute, rule or regulation or (ii) conflict with, or result in
a default or event of default under, any agreement of Acqco,
Holdings, the Borrower or any of Holdings's other Subsidiaries that
will be in effect following the consummation of the Acquisition
(except for (A) defaults and other rights to require repayment under
certain Existing Mortgages identified on Schedule 1.01(b) and
(B) other defaults and rights to require prepayment that in the
aggregate would not result, in the reasonable judgment of the Agents,
in a material adverse change in the business, assets, operations,
properties, financial condition or prospects of Holdings, the
Borrower, Holdings's other subsidiaries and, prior to the Merger,
Acqco, taken as a whole).
(n) The Administrative Agent shall be reasonably satisfied
that the Transaction Costs shall not exceed $22,700,000.
(o) The Investors and Acqco shall have made the Equity
Contributions.
(p) All loans outstanding, interest thereon and other
amounts due and payable under the Existing Credit Agreement and under
each other agreement related thereto shall have been repaid in full,
and the Administrative Agent shall have received duly executed
documentation, in form and substance satisfactory to it, evidencing
or necessary for (i) the termination of the Existing Credit Agreement
and (ii) the cancellation of all related agreements, guarantees and
security interests granted by Holdings, the Borrower, its
subsidiaries or any other person in connection therewith and the
discharge of all obligations or interests thereunder.
(q) Prior to the Effective Date, Cypress and its Affiliates
and the Borrower shall have used commercially reasonable efforts to
obtain waivers of any defaults under the Existing Mortgages and the
Capital Leases, or to cause each of the promissory notes and other
operative documents relating to each of the Existing Mortgages and
the Capital Leases to be amended in a manner reasonably satisfactory
to the Administrative Agent, which waivers or amendments shall, among
other things, (i) waive the "change of control" provisions thereof
with respect to the Acquisition and (ii) make such other changes as
shall be necessary so that, after giving effect thereto and to the
consummation of the other Transactions, no default, event of default
or other right to require prepayment would exist thereunder (except
for defaults, events of default and other rights to require
prepayment that in the aggregate would not result, in the reasonable
judgment of the Agents, in a material adverse change in the business,
assets, operations, properties, financial condition or prospects of
Holdings, the Borrower, Holdings's other Subsidiaries and, prior to
the Merger, Acqco, taken as a whole). In the event that such waivers
or amendments are not obtained with respect to any Capital Lease,
such Capital Lease shall have been terminated prior to the Effective
Date except as otherwise agreed upon by the Administrative Agent.
(r) After giving effect to the Transactions and the other
transactions contemplated hereby to take place on or prior to the
Effective Date, on the Effective Date, Holdings and the Subsidiaries
shall have outstanding no indebtedness or preferred stock other than
(i) the Loans and other extensions of credit hereunder, (ii) any
Senior Notes not repurchased in the Debt Tender Offer, (iii) the
Convertible Subordinated Notes and (iv) any Existing Mortgages that
are not prepaid on or prior to the Effective Date and Capital Leases
that, in accordance with paragraph (q) above, will remain outstanding
following the Effective Date.
(s) The Administrative Agent shall have received a pro
forma consolidated balance sheet of Holdings required by
Section 3.04(b), which balance sheet shall not be materially
inconsistent with the forecasts previously provided to the
Administrative Agent.
(t) The Administrative Agent shall have received a
certificate, in form and substance satisfactory to the Administrative
Agent, from a Financial Officer of Holdings as to the solvency of
Holdings and the Subsidiaries on a consolidated basis after giving
effect to the Transactions and the consummation of the other
transactions contemplated hereby.
(u) There shall be no action by any Governmental Authority,
actual or threatened, that has a reasonable likelihood of
restraining, preventing or imposing burdensome conditions on the
Transactions or the other transactions contemplated hereby.
(v) The Administrative Agent shall have received
counterparts of the Investor Agreement signed on behalf of each of
the Investors party thereto.
(w) The Administrative Agent shall have received a
Borrowing Request executed by the Borrower.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
and of any Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on
January 31, 1998 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each
Lender to make a Loan on the occasion of any Borrowing, and of any Issuing
Bank to issue, amend, renew or extend any Letter of Credit, is subject to the
satisfaction of the following conditions:
(a) The representations and warranties of each Loan Party
set forth in the Loan Documents shall be true and correct in all
material respects on and as of the date of such Borrowing or the date
of issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, except to the extent that such representations
and warranties expressly relate to an earlier date, in which case
such representations and warranties, shall, to such extent, be true
and correct in all material respects as of such earlier date.
(b) At the time of and immediately after giving effect to
such Borrowing or the issuance, amendment, renewal or extension of
such Letter of Credit, as applicable, no Default shall have occurred
and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter
of Credit shall be deemed to constitute a representation and warranty by
Holdings, the Borrower and, prior to the Merger, Acqco on the date thereof as
to the matters specified in paragraphs (a) and (b) of this Section.
ARTICLE V
Affirmative Covenants
---------------------
Until the Commitments have expired or been terminated and
the principal of and interest on each Loan and all fees payable hereunder
shall have been paid in full and all Letters of Credit shall have expired or
terminated and all LC Disbursements shall have been reimbursed, each of
Holdings and the Borrower and, prior to the Merger, Acqco covenants and
agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information.
Each of Holdings and the Borrower will furnish to the Administrative Agent
and each Lender:
(a) within 90 days after the end of each fiscal year of each
of Holdings and the Borrower, its audited consolidated balance sheets
and related statements of operations, stockholders' equity and cash
flows as of the end of and (other than with respect to cash flows)
for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by Price
Waterhouse LLP or other independent public accountants of recognized
national standing (without a "going concern" or like qualification or
exception and without any qualification or exception as to the scope
of such audit) to the effect that such consolidated financial
statements present fairly in all material respects the financial
condition and results of operations of (i) Holdings and its
consolidated subsidiaries and (ii) the Borrower and its consolidated
subsidiaries on a consolidated basis in accordance with GAAP
consistently applied (except as noted therein);
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year of each of Holdings and the
Borrower, its consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end of and
(other than with respect to cash flows) for such fiscal quarter and
the then elapsed portion of the fiscal year, setting forth in each
case in comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end of)
the previous fiscal year, all certified by one of its Financial
Officers as presenting fairly in all material respects the financial
condition and results of operations of (i) Holdings and its
consolidated subsidiaries and (ii) the Borrower and its consolidated
subsidiaries on a consolidated basis in accordance with GAAP
consistently applied (except as noted therein), subject to normal
year-end audit adjustments and the absence of footnotes;
(c) within 30 days after the end of each four-week fiscal
period of Holdings and the Borrower that is not the end of a fiscal
quarter of Holdings and the Borrower, its consolidated balance sheet
and related statements of operations, stockholders' equity and cash
flows as of the end of and for such fiscal period and the then
elapsed portion of the fiscal year, all certified by one of its
Financial Officers as presenting in all material respects the
financial condition and results of operations of (i) Holdings and its
consolidated subsidiaries and (ii) the Borrower and its consolidated
subsidiaries on a consolidated basis in accordance with GAAP
consistently applied (except as noted therein), subject to normal
year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer
of each of Holdings and the Borrower (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the
details thereof and any action taken or proposed to be taken with
respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Sections 6.13, 6.14, 6.15 and 6.16 and
(iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of Holdings's and the Borrower's
most-recently delivered audited financial statements and, if any such
change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements
under clause (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the
extent required by accounting rules or guidelines);
(f) no later than 60 days after the end of each fiscal year
of Holdings (commencing with the fiscal year of Holdings ending in
January 2000), a detailed consolidated budget for such fiscal year
(including a projected consolidated balance sheet and related
statements of projected operations and cash flow as of the end of and
for such fiscal year and for each fiscal quarter of such fiscal
year);
(h) promptly after the same become publicly available,
copies of all periodic and other reports, proxy statements and other
materials filed by Holdings, the Borrower or any Subsidiary with the
Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all of the functions of said Commission, or with
any national securities exchange, or distributed by Holdings to its
shareholders generally, as the case may be; and
(i) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of Holdings, the Borrower or any Subsidiary, or compliance
with the terms of any Loan Document, as the Administrative Agent or
any Lender may reasonably request.
SECTION 5.02. Notices of Material Events. The Borrower, as
soon as practicable after a Financial Officer or other executive officer of
the Borrower, Holdings or Acqco knows or reasonably should know thereof, will
furnish to the Administrative Agent and each Lender prompt written notice of
the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting Holdings, the Borrower or any Affiliate thereof
or, prior to the Merger, Acqco that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or
together with any other ERISA Events that have occurred, could
reasonably be expected to result in liability of Holdings, the
Borrower, the other Subsidiaries and, prior to the Merger, Acqco in
an aggregate amount exceeding $5,000,000; and
(d) any other development that results in, or could (either
in the reasonable judgment of the Borrower or in the reasonable
judgment of the Person delivering such certificate) be expected to
result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement
of a Financial Officer or other executive officer of the Borrower setting
forth the details of the event or development requiring such notice and any
action taken or proposed to be taken with respect thereto.
SECTION 5.03. Information Regarding Collateral. The
Borrower will furnish to the Administrative Agent prompt written notice of
any change (a) in any Loan Party's corporate name or in any trade name used
to identify it in the conduct of its business or in the ownership of its
properties, (b) in the location of any Loan Party's chief executive office,
its principal place of business, any office in which it maintains books or
records relating to Collateral owned by it or any office or facility at which
Collateral owned by it is located (including the establishment of any such
new office or facility), (c) in any Loan Party's identity or corporate
structure or (d) in any Loan Party's Federal Taxpayer Identification Number.
Holdings, the Borrower and, prior to the Merger, Acqco agree not to effect or
permit any change referred to in the preceding sentence unless all filings
have been made under the Uniform Commercial Code or otherwise that are
required in order for the Administrative Agent to continue at all times
following such change to have a valid, legal and perfected security interest
in all the Collateral. Holdings, the Borrower and, prior to the Merger,
Acqco also agree promptly to notify the Administrative Agent if any material
portion of the Collateral is damaged or destroyed.
SECTION 5.04. Existence; Conduct of Business. Each of
Holdings, the Borrower and, prior to the Merger, Acqco will, and will cause
each of the Subsidiaries to, do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges, franchises, patents, copyrights,
trademarks and trade names material to the conduct of its business, provided
that the foregoing shall not prohibit any merger, consolidation, liquidation
or dissolution permitted under Section 6.03.
SECTION 5.05. Payment of Obligations. Each of Holdings,
the Borrower and, prior to the Merger, Acqco will, and will cause each of the
Subsidiaries to, pay its Material Indebtedness and Tax liabilities before the
same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings,
(b) Holdings, the Borrower, Acqco or such Subsidiary has set aside on its
books adequate reserves with respect thereto in accordance with GAAP and (c)
the failure to pay could not reasonably be expected to have a Material
Adverse Effect.
SECTION 5.06. Maintenance of Properties. Each of Holdings,
the Borrower and, prior to the Merger, Acqco will, and will cause each of the
Subsidiaries (other than the Inactive Subsidiaries) to, keep and maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted.
SECTION 5.07. Insurance. Holdings will, and will cause
each of the Subsidiaries to, at all times maintain in full force and effect
insurance on all the property in at least such amounts and against at least
such risks insured against in the same general area by companies engaged in
the same or a similar business and such other insurance as may be required by
law, provided that any self-insurance maintained by Holdings and the
Subsidiaries pursuant to this Section 5.07 shall not exceed $6,000,000 in the
aggregate. Holdings will, and will cause each Subsidiary to, furnish to the
Administrative Agent, upon written request of the Administrative Agent, a
summary of the insurance carried together with certificates of insurance and
other evidence of such insurance, if any, naming the Collateral Agent as an
additional insured and/or loss payee.
SECTION 5.08. Casualty and Condemnation. (a) Holdings,
the Borrower and, prior to the Merger, Acqco will furnish to the
Administrative Agent and the Lenders prompt written notice of any casualty or
other insured damage to any portion of any Collateral having a fair market
value of $1,000,000 or more, or the commencement of any action or proceeding
for the taking of any Collateral or any part thereof or interest therein
under power of eminent domain or by condemnation or similar proceeding.
(b) If any event described in paragraph (a) of this Section
results in Net Proceeds, the Administrative Agent is authorized to collect
such Net Proceeds and, if received by Holdings, the Borrower, any Subsidiary
or, prior to the Merger, Acqco, such Net Proceeds shall be paid over to the
Administrative Agent, provided that (i) if the aggregate Net Proceeds in
respect of such event (other than proceeds of business interruption
insurance) are less than $1,000,000, such Net Proceeds shall be paid over to
the Borrower unless a Default has occurred and is continuing, and (ii) all
proceeds of business interruption insurance shall be paid over to the
Borrower unless a Default has occurred and is continuing. All such Net
Proceeds retained by or paid over to the Administrative Agent shall be held
by the Administrative Agent and released from time to time to pay the costs
of repairing, restoring or replacing the affected property in accordance with
the terms of the applicable Security Document, subject to the provisions of
the applicable Security Document regarding application of such Net Proceeds
during a Default.
(c) If any Net Proceeds retained by or paid over to the
Administrative Agent as provided above continue to be held by the
Administrative Agent on the date that is 180 days after the receipt of such
Net Proceeds, then such Net Proceeds shall be applied to prepay Term
Borrowings as provided in Section 2.11(b).
SECTION 5.09. Books and Records; Inspection and Audit
Rights. Each of Holdings and the Borrower will, and will cause each of the
Subsidiaries (except for Inactive Subsidiaries) to, keep proper books of
record and account in which full, true and correct entries are made of all
material dealings and transactions in relation to its business and
activities. Each of Holdings and the Borrower will, and will cause each of
the Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested.
SECTION 5.10. Compliance with Laws. Each of Holdings and
the Borrower and, prior to the Merger, Acqco will, and will cause each of the
Subsidiaries to, comply with all laws, rules, regulations and orders of any
Governmental Authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.11. Use of Proceeds and Letters of Credit. The
proceeds of the Term Loans will be used by the Borrower, together with (a)
the proceeds of Revolving Loans in an aggregate principal amount equal to the
sum of (i) $45,400,000 and (ii) the amount of cash recorded on a consolidated
balance sheet of Holdings as of the Effective Date prepared in accordance
with GAAP and (b) a portion of the Acqco Equity Contribution, solely (A) to
pay (or make a dividend to Holdings to enable Holdings to pay) any amounts in
excess of the Cash Merger Consideration to be paid in connection with the
exercise by the holders of the Untendered Shares, if any, of their appraisal
rights following the Merger, to pay cash in the Merger in an aggregate amount
not in excess of the product of the Cash Merger Consideration times the
aggregate number of Shares issued after November 22, 1997, in respect of
option exercises and Convertible Subordinated Note conversions (net of any
proceeds from option exercises) and to make any cash payments due to each
holder of an option or common-stock-equivalent of Holdings upon the exercise
of such option or common-stock-equivalent (it being understood that no
portion of the Loans will be used to purchase Shares in the Equity Tender
Offer), (B) to repay, repurchase or redeem (or make a dividend to Holdings to
enable Holdings to repay, repurchase or redeem) existing Indebtedness of
Holdings and the Subsidiaries, including (i) the Senior Notes accepted
pursuant to the Debt Tender Offer or otherwise repurchased or redeemed,
(ii) all of Holdings's outstanding Convertible Subordinated Notes and
(iii) Indebtedness owed under the Existing Mortgages (provided that (x) no
more than $55,000,000 in borrowings under the Term Loans shall be used to
repay, repurchase or redeem the Senior Notes and the Convertible Subordinated
Notes and (y) no more than $15,000,000 in borrowings under the Term Loans
shall be used for the prepayment of Existing Mortgages), (C) to pay (or to
make a dividend to Holdings to enable Holdings to pay) the Ashton Termination
Payment (including any Tax gross-ups associated therewith), (D) to repay
indebtedness owed under the Existing Credit Agreement on the Effective Date,
(E) to pay the Transaction Costs, (F) to pay (or to make a dividend to
Holdings to enable Holding to pay) any amounts payable in connection with the
exercise of options (net of any exercise price) and common stock equivalents,
any premiums in excess of the principal amount paid by Holdings or the
Borrower in connection with the purchase or redemption of Senior Notes and
Convertible Subordinated Notes and the prepayment of Existing Mortgages and
any accrued interest payable in connection with the repurchase of Senior
Notes and Convertible Subordinated Notes or the prepayment of Existing
Mortgages and (G) for general corporate purposes. The proceeds of the
Revolving Loans (other than loans used for the purposes specified in the
first sentence of this paragraph) will be used by the Borrower to repay
obligations under the Existing Credit Agreement and for general corporate
purposes. The proceeds of the Swingline Loans will be used only for general
corporate purposes. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that entails a violation of
any of the Regulations of the Board, including Regulations G, U and X.
Letters of Credit will be issued only for general corporate purposes.
SECTION 5.12. Additional Subsidiaries. If any additional
Borrower Subsidiary is formed or acquired after the Effective Date, the
Borrower will notify the Administrative Agent thereof and (a) if such
Borrower Subsidiary is a Subsidiary Loan Party, the Borrower will cause such
Borrower Subsidiary to become a party to the Subsidiary Guarantee Agreement,
the Indemnity, Subrogation and Contribution Agreement and each applicable
Security Document in the manner provided therein within 30 Business Days
after such Borrower Subsidiary is formed or acquired and promptly take such
actions to create and perfect Liens on such Borrower Subsidiary's assets to
secure the Obligations as the Administrative Agent or the Required Lenders
shall reasonably request and (b) if any shares of capital stock or
Indebtedness of any such additional Borrower Subsidiary are owned by or on
behalf of any Loan Party, the Borrower will cause such shares and promissory
notes evidencing such Indebtedness to be pledged pursuant to the Pledge
Agreement within 30 Business Days after such Borrower Subsidiary is formed or
acquired (except that, if such Borrower Subsidiary is a Foreign Subsidiary,
shares of common stock of such Borrower Subsidiary to be pledged pursuant to
the Pledge Agreement may be limited to 65% of the outstanding shares of
common stock of such Borrower Subsidiary).
SECTION 5.13. Further Assurances. (a) Each of Holdings,
the Borrower and, prior to the Merger, Acqco will, and will cause each
Subsidiary Loan Party to, execute any and all further documents, financing
statements, agreements and instruments, and take all such further actions
(including the filing and recording of financing statements, fixture filings,
mortgages, deeds of trust and other documents), that may be required under
any applicable law, or which the Administrative Agent or the Required Lenders
may reasonably request, to effectuate the transactions contemplated by the
Loan Documents or to grant, preserve, protect or perfect the Liens created or
intended to be created by the Security Documents or the validity or priority
of any such Lien (subject to Liens permitted by Section 6.02), all at the
expense of the Loan Parties.
(b) If any material assets (including any real property or
improvements thereto or any interest therein) are acquired by Holdings, the
Borrower, any Subsidiary Loan Party or, prior to the Merger, Acqco after the
Effective Date (other than assets constituting Collateral under the Security
Agreement that become subject to the Lien of the Security Agreement upon
acquisition thereof), or if any real property or improvements thereto or any
interest therein that is subject to Existing Mortgages on the Effective Date
becomes no longer so encumbered after such date, Holdings, the Borrower and,
prior to the Merger, Acqco, will notify the Administrative Agent and the
Lenders thereof, and, if requested by the Administrative Agent or the
Required Lenders, will cause such assets to be subjected to a Lien securing
the Obligations and will take, and cause the Subsidiary Loan Parties to take,
such actions as shall be necessary or reasonably requested by the
Administrative Agent to grant and perfect such Liens, including actions
described in paragraph (a) of this Section, all at the expense of the Loan
Parties.
(c) On or before the date that is 15 Business Days after
the date of this Agreement, the Administrative Agent shall have received
stock certificates representing all the outstanding shares of Holdings owned
by Acqco on such date.
(d) On or before the date that is 60 days after the date of
this Agreement, the Administrative Agent shall have received (i) counterparts
of a Mortgage with respect to each Mortgaged Property listed on Schedule
1.01(a), signed on behalf of the record owner of such Mortgaged Property,
(ii) a policy or policies of title insurance issued by a nationally
recognized title insurance company, insuring the Lien of each such Mortgage
as a valid first Lien on the Mortgaged Property described therein, free of
any other Liens except as permitted by Section 6.02, in form and substance
reasonably acceptable to the Collateral Agent, together with such
endorsements, coinsurance and reinsurance as the Collateral Agent or the
Required Lenders may reasonably request, (iii) such current certified surveys
as may be required pursuant to such Mortgages or as the Administrative Agent
or the Required Lenders may reasonably request, (iv) a copy of the original
permanent certificate or temporary certificate of occupancy as the same may
have been amended or issued from time to time, covering each improvement
located upon the Mortgaged Properties, that were required to have been issued
by the appropriate Governmental Authority for such improvement, (v) written
confirmation from the applicable zoning commission or other appropriate
Governmental Authority stating that with respect to each Mortgaged Property
as built it complies with existing land use and zoning ordinances,
regulations and restrictions applicable to such Mortgaged Property to the
extent each of Holdings, the Borrower and, prior to the Merger, Acqco are
able to obtain such written confirmation using commercially reasonable
efforts and (vi) a favorable written opinion (addressed to the Administrative
Agent and the Lenders) of local counsel in each jurisdiction where a
Mortgaged Property is located, substantially in the form of Exhibit C,
covering such other matters relating to the Security Documents and the
Mortgages as the Administrative Agent or the Required Lenders shall
reasonably request.
SECTION 5.14. Interest Rate Protection. As promptly as
practicable, and in any event within 60 days after the Redemption Completion
Date, the Borrower will enter into with one or more Lenders, and thereafter
for a period of not less than three years will maintain in effect, one or
more interest rate protection agreements on such terms as shall be reasonably
satisfactory to the Administrative Agent, to the extent necessary so that
after giving effect to such interest rate protection agreement(s), the
interest cost to the Borrower with respect to at least 50% of the sum of (a)
the principal amount of the outstanding Term Loans and (b) if and when
issued, the principal amount of outstanding Subordinated Notes will be at
fixed rates of interest.
SECTION 5.15. Redemption of Notes. The Borrower will
redeem, not later than the Redemption Completion Date, (a) any Senior Notes
that remain outstanding following the consummation of the Debt Tender Offer
and (b) all the then-outstanding Convertible Subordinated Notes, in each case
in accordance with the provisions of the respective indenture governing such
notes.
SECTION 5.16. Issuance of Subordinated Notes, Issuance of
8% PIK Notes and Application of Proceeds Thereof. The Borrower will use
commercially reasonable efforts to issue the Subordinated Notes in an
aggregate principal amount of up to $125,000,000 not later than the
Redemption Completion Date pursuant to documentation reasonably satisfactory
to the Administrative Agents. If for any reason the Borrower has not issued
the Subordinated Notes as described in the immediately preceding sentence on
or before the Redemption Completion Date, then on or before such date
(a) Holdings will issue to the Investors $45,000,000 in aggregate principal
amount of the 8% PIK Debentures in exchange for the payment by the Investors
to Holdings of $45,000,000 in cash and (b) Holdings will apply the proceeds
from the issuance of the 8% PIK Debentures to pay principal, premiums and
accrued interest, if any, payable in connection with the redemption of
(i) Senior Notes that remain outstanding following the consummation of the
Debt Tender Offer and (ii) Convertible Subordinated Notes.
SECTION 5.17. Consummation of the Merger. (a) The Merger
shall be consummated pursuant to the Merger Agreement as soon as practicable
following the Effective Date and in no event later than June 30, 1998.
(b) Substantially simultaneously with the consummation of
the Merger, each option and common-stock-equivalent of Holdings that is
outstanding immediately prior to the Merger will be modified to become
exercisable solely for an amount in cash equal to the excess, if any, of the
Cash Merger Consideration over the exercise price or purchase price of such
option or common-stock-equivalent.
(c) If Acqco shall own at least 90% of the Shares following
the consummation of the Equity Tender Offer, Holdings will effect the Merger
without a meeting of stockholders of Holdings as soon as practicable
following the Effective Date and in no event later than June 30, 1998.
(d) If Acqco shall own less than 90% of the Shares
following the consummation of the Equity Tender Offer, Holdings will use
commercially reasonable efforts to conduct a shareholder vote to approve the
Merger as soon as reasonably practicable thereafter.
ARTICLE VI
Negative Covenants
------------------
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have
been paid in full and all Letters of Credit have expired or terminated and
all LC Disbursements shall have been reimbursed, each of Holdings, the
Borrower and, prior to the Merger, Acqco covenants and agrees with the
Lenders that:
SECTION 6.01. Indebtedness; Certain Equity Securities. (a)
Holdings, the Borrower and, prior to the Merger, Acqco will not, and will not
permit any Subsidiary to, create, incur, assume or permit to exist any
Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness existing on the date hereof and set
forth in Schedule 6.01 and extensions, renewals and replacements of
any such Indebtedness that do not increase the outstanding principal
amount thereof or result in an earlier maturity date or decreased
weighted average life thereof;
(iii) Indebtedness of the Borrower to any Borrower
Subsidiary (other than an Inactive Subsidiary) and of any Borrower
Subsidiary (other than an Inactive Subsidiary) to the Borrower or any
other Borrower Subsidiary (other than an Inactive Subsidiary),
provided that Indebtedness of any Borrower Subsidiary that is not a
Loan Party to the Borrower or any Subsidiary Loan Party shall be
subject to Section 6.04;
(iv) Guarantees by the Borrower of Indebtedness of any
Borrower Subsidiary (other than an Inactive Subsidiary) and by any
Borrower Subsidiary (other than an Inactive Subsidiary) of
Indebtedness of the Borrower or any other Borrower Subsidiary (other
than an Inactive Subsidiary), provided that Guarantees by the
Borrower or any Subsidiary Loan Party of Indebtedness of any Borrower
Subsidiary that is not a Loan Party shall be subject to Section 6.04;
(v) Indebtedness of the Borrower or any Borrower
Subsidiary (other than an Inactive Subsidiary) incurred to finance
the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations and any Indebtedness
assumed in connection with the acquisition of any such assets or
secured by a Lien on any such assets prior to the acquisition
thereof, provided that such Indebtedness is incurred prior to or
within 90 days after such acquisition or the completion of such
construction or improvement, and extensions, renewals and
replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof or result in an earlier maturity
date or decreased weighted average life thereof, and provided further
that the aggregate principal amount of Indebtedness permitted by this
clause (v) that is incurred following the Effective Date shall not
exceed $7,500,000 at any time outstanding (excluding sale and
leaseback obligations arising under the Agreement for Sale of Real
Estate, dated October 30, 1997, between the Borrower and S&D Realty,
LLC);
(vi) Indebtedness of any Person that becomes a Borrower
Subsidiary after the date hereof, provided that (A) such Indebtedness
exists at the time such Person becomes a Borrower Subsidiary and is
not created in contemplation of or in connection with such Person
becoming a Borrower Subsidiary and (B) the aggregate principal amount
of Indebtedness permitted by this clause (vi) shall not exceed
$5,000,000 at any time outstanding;
(vii) (A) up to $125,000,000 in aggregate principal amount
of the Subordinated Notes, (B) Permitted Subordinated Refinancing
Debt and (C) any related subordinated guarantees, in each case so
long as, at the time of the incurrence of such Indebtedness and after
giving effect to the incurrence thereof, no Default or Event of
Default has occurred and is continuing;
(viii) if the Subordinated Notes are not issued by the
Borrower on or before the 8% PIK Debentures Issuance Date,
Indebtedness of Holdings in the form of the 8% PIK Debentures issued
to the Investors for net cash proceeds of $45,000,000, provided that
the terms and conditions of the 8% PIK Debentures (including terms
and conditions relating to fees, maturity, subordination, covenants,
events of default, remedies, redemption and pay-in-kind features
other than the terms and conditions expressly provided for in the
definition of the term "8% PIK Debentures") shall be reasonably
satisfactory in all respects to the Administrative Agent;
(ix) other Indebtedness in an aggregate principal amount
not exceeding $10,000,000 at any time outstanding, provided that the
aggregate principal amount of Indebtedness of the Borrower
Subsidiaries permitted by this clause (ix) shall not exceed
$2,000,000 at any time outstanding;
(x) following the issuance of the Subordinated Notes,
(A) other subordinated Indebtedness issued by Holdings or the
Borrower in an aggregate principal amount of up to $50,000,000,
provided that such Indebtedness shall (I) be subject to subordination
provisions that, in the reasonable judgment of the Administrative
Agent, are no less favorable to the Lenders than the subordination
provisions of the Subordinated Notes (and any Guarantees by the
guarantors of such other subordinated Indebtedness shall be subject
to subordination provisions that, in the reasonable judgment of the
Administrative Agent, are no less favorable to the Borrower or the
Lenders than the subordination provisions of the Guarantees of the
Subordinated Notes), (II) be subject to no covenant more restrictive
in any material respect than those contained in the Subordinated
Notes Indenture, (III) mature no earlier than December 24, 2005,
(IV) accrue interest at a rate determined in good faith by the Board
of Directors of Holdings to be a market rate of interest for such
other subordinated Indebtedness at the time of issuance thereof and
(V) be reasonably satisfactory in all other respects to the
Administrative Agent, and (B) any Permitted Subordinated Refinancing
Debt with respect to such other subordinated Indebtedness, provided
that at the time of the incurrence of such subordinated Indebtedness
or Permitted Subordinated Refinancing Debt with respect to such other
subordinated Indebtedness and after giving effect to the incurrence
thereof, no Default or Event of Default has occurred and is
continuing; and
(xi) Indebtedness representing the obligations of
Holdings to make payments in connection with the cancellation or
repurchase of common stock of officers, employees and directors of
Holdings and the Subsidiaries to the extent permitted by Section
6.08, provided that (A) the aggregate principal amount of
Indebtedness permitted by this clause (xi) shall not exceed
$5,000,000 at any time outstanding and (B) such Indebtedness shall be
subordinated to the Obligations on a basis no less favorable to the
Lenders than the subordination provisions of the Subordinated Notes.
(b) Neither Holdings nor the Borrower nor, prior to the
Merger, Acqco will, nor will they permit any Subsidiary to, issue any
preferred stock (except for, following the issuance of the Subordinated
Notes, preferred stock (i) all dividends in respect of which are to be paid
(and all other payments in respect of which are to be made) in additional
shares of such preferred stock, in lieu of cash, until December 24, 2007,
(ii) that is not subject to redemption prior to December 24, 2007, other than
redemption at the option of the issuer of such preferred stock, (iii) that
is, upon any such redemption, subject to subordination provisions that, in
the reasonable judgment of the Administrative Agent, are no less favorable to
the Borrower or the Lenders than the subordination provisions of the
Subordinated Notes, (iv) that contains no covenants and (v) the aggregate
liquidation preference of which shall at no time exceed the difference
between (A) $50,000,000 and (B) the aggregate principal amount of any
subordinated Indebtedness issued as permitted by Section 6.01(a)(x) and
outstanding at such time) or, except as expressly permitted under
Section 6.08, be or become liable in respect of any obligation (contingent or
otherwise) to purchase, redeem, retire, acquire or make any other payment in
respect of any shares of capital stock of Holdings, the Borrower or any
Subsidiary or any option, warrant or other right to acquire any such shares
of capital stock except for (i) obligations pursuant to the Merger Agreement
and (ii) the redemption of the Convertible Subordinated Notes pursuant to
Section 5.15.
SECTION 6.02. Liens. Holdings, the Borrower and, prior to
the Merger, Acqco will not, and will not permit any Subsidiary to, create,
incur, assume or permit to exist any Lien on any property or asset now owned
or hereafter acquired by it, or assign or sell any income or revenues
(including accounts receivable) or rights in respect of any thereof, except:
(a) Liens created under the Loan Documents;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of the Borrower or
any Subsidiary existing on the date hereof, including any Lien with
respect to the Existing Mortgages that will remain outstanding
following the Effective Date, and set forth in Schedule 6.02,
provided that (i) such Lien shall not apply to any other property or
asset of Holdings, the Borrower or any Subsidiary or, prior to the
Merger, Acqco and (ii) such Lien shall secure only those obligations
that it secures on the date hereof and extensions, renewals and
replacements thereof that do not increase the outstanding principal
amount thereof;
(d) any Lien existing on any property or asset prior to the
acquisition thereof by Holdings, the Borrower or any Subsidiary or,
prior to the Merger, Acqco or existing on any property or asset of
any Person that becomes a Borrower Subsidiary after the date hereof
prior to the time such Person becomes a Borrower Subsidiary, provided
that (A) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Borrower
Subsidiary, as the case may be, (B) such Lien shall not apply to any
other property or assets of Holdings, the Borrower or any Subsidiary
or, prior to the Merger, Acqco and (C) such Lien shall secure only
those obligations that it secures on the date of such acquisition or
the date such Person becomes a Borrower Subsidiary, as the case may
be, and extensions, renewals and replacements thereof that do not
increase the outstanding principal amount thereof;
(e) Liens on fixed or capital assets acquired, constructed
or improved by the Borrower or any Borrower Subsidiary, provided that
(A) such security interests secure Indebtedness permitted by
clause (v) of Section 6.01(a), (B) such security interests and the
Indebtedness secured thereby are incurred prior to or within 90 days
after such acquisition or the completion of such construction or
improvement, (C) the Indebtedness secured thereby does not exceed 75%
of the cost of acquiring, constructing or improving such fixed or
capital assets and (D) such security interests shall not apply to any
other property or assets of Holdings, the Borrower or any Subsidiary
or, prior to the Merger, Acqco; and
(f) Liens arising from UCC financing statements regarding
leases permitted by this Agreement with respect to property subject
to such leases;
(g) Liens imposed by Environmental Laws or ERISA to the
extent not in violation of any of the representations, warranties or
covenants in respect of Environmental Laws or ERISA made by Holdings
or the Borrower in this Agreement;
(h) "Permitted Encumbrances" under and as such term or its
equivalent is defined in the respective Mortgages;
(i) Mortgages securing Indebtedness not in excess of
$10,000,000 in the aggregate, provided that such Mortgages (i) shall
secure Indebtedness incurred in connection with the acquisition,
after the Effective Date, by Holdings, the Borrower or any other
Subsidiary of the real property subject to such Mortgages and (ii)
apply only to the real property so acquired; and
(j) Liens (other than those permitted by paragraphs (a)
through (i) above) securing Indebtedness permitted hereunder in an
aggregate amount not exceeding $2,000,000 at any time outstanding.
SECTION 6.03. Fundamental Changes. (a) Holdings, the
Borrower and, prior to the Merger, Acqco will not and will not permit any
Subsidiary to, merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with it, or liquidate or dissolve,
(i) except as provided in the Merger Agreement and (ii) except that, if at
the time thereof and immediately after giving effect thereto no Default shall
have occurred and be continuing (A) any Subsidiary may merge into the
Borrower in a transaction in which the Borrower is the surviving corporation,
(B) any Subsidiary may merge into any Subsidiary Loan Party in a transaction
in which the surviving entity is a Subsidiary Loan Party, (C) any Subsidiary
that is not a Loan Party may merge into any Subsidiary that is not a Loan
Party and (D) any Subsidiary may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the best
interests of the Borrower and is not materially disadvantageous to the
Lenders, provided that any such merger involving a Person that is not a
wholly owned Subsidiary immediately prior to such merger shall not be
permitted unless also permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of the
Borrower Subsidiaries to, engage to any material extent in any business other
than businesses of the type conducted by the Borrower and the Borrower
Subsidiaries on the date of execution of this Agreement and businesses
reasonably related thereto.
(c) Holdings will not engage in any business or activity
other than the ownership of all the outstanding shares of capital stock of
the Borrower and the other Subsidiaries as of the Effective Date, actions
contemplated by the Merger Agreement and the Loan Documents, activities
reasonably related to those being conducted on the Effective Date and
activities incidental thereto. Holdings will not own or acquire any assets
(other than shares of capital stock of the Borrower and the other
Subsidiaries existing on the Effective Date, any personal property owned by
Holdings on the Effective Date, cash and Permitted Investments) or incur any
liabilities (other than liabilities under the Loan Documents, liabilities
existing on the Effective Date, liabilities imposed by law, including tax
liabilities, and other liabilities incidental to its existence and permitted
business and activities).
(d) Acqco will not engage in any business or activity other
than the ownership of all the outstanding Shares tendered in the Equity
Tender Offer, actions contemplated by the Merger Agreement and the Loan
Documents and activities incidental thereto, including the payment of fees in
connection with the Merger. Acqco will not own or acquire any assets (other
than Shares tendered in the Equity Tender Offer, cash and Permitted
Investments) or incur any liabilities (other than liabilities under the Loan
Documents, liabilities imposed by law, including tax liabilities, and other
liabilities incidental to its existence and permitted business and
activities).
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions. Holdings and the Borrower and, prior to the Merger, Acqco will
not, and will not permit any of the Subsidiaries to, purchase, hold or
acquire (including pursuant to any merger with any Person that was not a
wholly owned Subsidiary prior to such merger) any capital stock, evidences of
indebtedness or other securities (including any option, warrant or other
right to acquire any of the foregoing) of, make or permit to exist any loans
or advances to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person, or purchase or
otherwise acquire (in one transaction or a series of transactions) any assets
of any other Person constituting a business unit, except:
(a) pursuant to the Tender Offers and the Merger Agreement;
(b) the Acqco Equity Contribution;
(c) Permitted Investments;
(d) investments existing on the date hereof and set forth
on Schedule 6.04, to the extent such investments would not be
permitted under any other clause of this Section;
(e) investments by the Borrower in the capital stock of the
Borrower Subsidiaries, provided that any such shares of capital stock
shall be pledged pursuant to the Pledge Agreement (subject to the
limitations applicable to common stock of a Foreign Subsidiary
referred to in Section 5.12) and (ii) the amount of investments by
the Borrower in Borrower Subsidiaries that are not Loan Parties shall
not exceed $5,000,000 in the aggregate at any time outstanding;
(f) loans or advances made by the Borrower to any Borrower
Subsidiary other than an Inactive Subsidiary and made by any Borrower
Subsidiary other than an Inactive Subsidiary to the Borrower or any
other Borrower Subsidiary other than an Inactive Subsidiary, provided
that any such loans and advances made by a Loan Party shall be
evidenced by a promissory note pledged pursuant to the Pledge
Agreement and (ii) the amount of all such loans and advances by Loan
Parties to Borrower Subsidiaries that are not Loan Parties shall not
exceed $5,000,000 in the aggregate at any time outstanding;
(g) Guarantees constituting Indebtedness permitted by
Section 6.01, provided that (i) Holdings, the Borrower, any other
Subsidiary and, prior to the Merger, Acqco shall not guarantee the
Subordinated Notes unless (A) it has also Guaranteed the Obligations
pursuant to a Guarantee Agreement, (B) such Guarantee of the
Subordinated Notes is subordinated to such Guarantee of the
Obligations on terms no less favorable to the Lenders than the
subordination provisions of the Subordinated Notes and (C) such
Guarantee of the Subordinated Notes provides for the release and
termination thereof, without any action of any party, upon any
release and termination of such Guarantee of the Obligations and
(ii) the amount of Indebtedness that is (A) outstanding with respect
to Borrower Subsidiaries that are not Loan Parties and (B) Guaranteed
by any Loan Party shall not exceed $5,000,000 in the aggregate at any
time outstanding;
(h) investments received in connection with the bankruptcy
or reorganization of, or settlement of delinquent accounts and
disputes with, customers and suppliers, in each case in the ordinary
course of business;
(i) Loans and advances to officers, directors or employees
in the ordinary course of business, provided that such Loans and
advances shall not exceed $500,000 in the aggregate at any time
outstanding; and
(j) investments otherwise permitted by Section 6.03(a) and
Section 6.07;
(k) acquisitions of property, plant and equipment that
constitute capital expenditures and are otherwise permitted by Section 6.13;
(l) investments in any Subsidiary with proceeds of
dividends paid in accordance with Section 6.08(a)(iv) or (viii) to
the extent such investments are used by such Subsidiary to discharge
liabilities of Holdings or such Subsidiary otherwise permitted to be
discharged under this Agreement or liabilities relating to Disclosed
Matters;
(m) investments by Acqco in Holdings;
(n) investments by Holdings in any Subsidiary Loan Party;
(o) trade credit extended to customers of the Borrower in
an aggregate amount not to exceed $500,000 at any time outstanding;
and
(p) other investments in an aggregate amount not to exceed
$1,000,000 at any time outstanding.
SECTION 6.05. Asset Sales. Holdings, the Borrower and,
prior to the Merger, Acqco will not, and will not permit any of the
Subsidiaries to, sell, transfer, lease or otherwise dispose of any asset,
including any capital stock, nor will Holdings or the Borrower permit the
Borrower or any of the other Subsidiaries to issue any additional shares of
its capital stock or other ownership interest in the Borrower or such
Subsidiary, as the case may be, except:
(a) sales or other dispositions of inventory, used or
surplus equipment and Permitted Investments in the ordinary course of
business;
(b) sales, transfers and dispositions to the Borrower or a
Borrower Subsidiary, provided that any such sales, transfers or
dispositions involving a Borrower Subsidiary that is not a Loan Party
shall be made in compliance with Section 6.09;
(c) sales, transfers and dispositions of assets (other than
capital stock of a Subsidiary) that are not permitted by any other
clause of this Section, provided that the aggregate fair market value
of all assets sold, transferred or otherwise disposed of in reliance
upon this clause (c) shall not exceed $5,000,000 during any fiscal
year of the Borrower or $10,000,000 in the aggregate during the term
of this Agreement; and
(d) pursuant to a transaction permitted by Section 6.03(a),
provided that all sales, transfers, leases and other dispositions permitted
under paragraphs (a), (b) and (c) above shall be made for fair market value
and for cash consideration equal to at least 80% of such fair market value.
SECTION 6.06. Sale and Lease-Back Transactions. Except for
the Agreement for Sale of Real Estate, dated October 30, 1997, between the
Borrower and S&D Realty, LLC, Holdings, the Borrower and, prior to the
Merger, Acqco will not enter into any arrangement, directly or indirectly,
with any Person whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property which
it intends to use for substantially the same purpose or purposes as the
property being sold or transferred, provided that the Borrower and the
Borrower Subsidiaries may enter into any such transaction to the extent the
Capital Lease Obligation and Liens associated therewith would be permitted by
Sections 6.01(a)(v) and 6.02(e), respectively.
SECTION 6.07. Hedging Agreements. Holdings, the Borrower
and, prior to the Merger, Acqco will not, and will not permit any of the
Subsidiaries to, enter into any Hedging Agreement, other than (a) Hedging
Agreements required by Section 5.14 and (b) Hedging Agreements entered into
in the ordinary course of business to hedge or mitigate risks to which the
Borrower or any Borrower Subsidiary is exposed in the conduct of its business
or the management of its liabilities.
SECTION 6.08. Restricted Payments; Certain Payments of
Indebtedness. (a) Other than the payment for Shares in the Merger
(including Shares with respect to which appraisal rights shall be exercised)
and payments in connection with the modification of existing options and
common-stock-equivalents at the time of the Merger, Holdings, the Borrower
and, prior to the Merger, Acqco will not, and will not permit any Subsidiary
to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except (i) Holdings may declare and pay dividends with
respect to its capital stock payable solely in additional shares of its
common stock or options, warrants or other rights to purchase common stock,
(ii) the Subsidiaries (other than the Borrower) may declare and pay dividends
ratably with respect to their capital stock, (iii) Holdings or, prior to the
Merger, Acqco may make payments to officers, employees and directors of
Holdings and the Subsidiaries (or to the respective estate or permitted
transferee under such plans or agreements of any such officer, employee or
director) in connection with the cancellation or repurchase of common stock
(or options to purchase common stock) previously issued to such officers,
employees and directors pursuant to and in accordance with stock option plans
or other benefit plans or compensation agreements (or agreements entered into
in connection therewith) entered into in the ordinary course of business for
officers, employees and directors of Holdings and the Subsidiaries, either in
the form of cash paid to repurchase such common stock or cash paid with
respect to Indebtedness previously issued as permitted by Section 6.01(a)(xi)
to repurchase such common stock, provided that all payments pursuant to this
clause (iii) do not exceed $1,000,000 during any fiscal year and $5,000,000
in the aggregate during the term of this Agreement, (iv) the Borrower may pay
dividends to Holdings at such times and in such amounts, not exceeding
$1,000,000 during any fiscal year, as shall be necessary to permit Holdings
to discharge liabilities of Holdings and its Subsidiaries otherwise permitted
to be discharged under this Agreement, (v) if the Subordinated Notes are
issued by the Borrower after the 8% PIK Debentures Issuance Date, the
Borrower may pay a dividend to Holdings from the proceeds of the issuance of
the Subordinated Notes in an amount sufficient to permit Holdings to redeem
the 8% PIK Debentures for an amount equal to the principal amount thereof
plus accrued but unpaid interest thereon, (vi) if the Subordinated Notes are
not issued by the Borrower after the issuance of the 8% PIK Debentures
Issuance Date, the Borrower may pay a dividend to Holdings in an amount
sufficient to permit Holdings to redeem the 8% PIK Debentures for an amount
equal to the principal amount thereof plus accrued but unpaid interest
thereon, provided that (A) no such dividend or dividends shall be made at any
time when a Default or Event of Default has occurred and is continuing (or
would result from the making of such dividend) or on any date prior to
May 23, 1999, (B) the Leverage Ratio shall be less than 2.50 to 1.00 as of
the end of the four-fiscal-quarter period most recently ended immediately
prior to the payment of any such dividend or dividends and (C) the amount of
such dividend or dividends in any fiscal year of Holdings shall not exceed
the lesser of (x) 25% of Excess Cash Flow from the immediately preceding
fiscal year to the extent not previously used for another permitted purpose
under this Agreement and (y) $5,000,000, (vii) the Borrower and the other
Subsidiaries may make Restricted Payments to Holdings in order to pay Taxes,
(viii) so long as that no Default or Event of Default has occurred and is
continuing (or would result therefrom), the Borrower and the other
Subsidiaries may make Restricted Payments to the extent that the proceeds
thereof are promptly used to satisfy liabilities relating to the Disclosed
Matters (including legal and other expenses relating thereto), provided that
such Restricted Payments shall not exceed $5,000,000 in any fiscal year of
Holdings and $10,000,000 in the aggregate during the term of this Agreement
and (ix) the Borrower and the other Subsidiaries may make Restricted Payments
to Holdings in order for Holdings (A) to satisfy obligations incurred
pursuant to transactions permitted under Sections 6.09(d), (e), (f) or (g),
(B) to pay Transaction Costs up to $10,000,000, consisting of transaction
advisory fees, fees to Cypress and its Affiliates, consulting fees and other
miscellaneous fees and expenses and (C) to redeem the Senior Notes and the
Convertible Subordinated Notes.
(b) Holdings, the Borrower and, prior to the Merger, Acqco
will not, and will not permit any Subsidiary to, make or agree to pay or
make, directly or indirectly, any payment or other distribution (whether in
cash, securities or other property) of or in respect of principal of or
interest on any Indebtedness, or any payment or other distribution (whether
in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan
Documents;
(ii) payment of regularly scheduled interest and
principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted
by Section 6.01;
(iv) the redemption or repurchase of the Convertible
Subordinated Notes pursuant to the terms of this Agreement and the
Convertible Subordinated Notes Indenture;
(v) the redemption or repurchase of the Senior Notes
pursuant to the terms of this Agreement and the Senior Notes
Indenture or the Debt Tender Offer;
(vi) the redemption of the 8% PIK Debentures by Holdings
for a redemption price equal to the outstanding principal amount
thereof plus accrued but unpaid interest thereon with the proceeds of
a dividend paid by the Borrower pursuant to Section 6.08(a)(v) or
(vi); and
(vii) prepayment of any Existing Mortgage to the extent
that the Borrower and Holdings are not able to obtain a waiver of any
defaults that occur under such Existing Mortgage as a result of the
Transactions.
SECTION 6.09. Transactions with Affiliates. Other than the
Transactions, Holdings, the Borrower and, prior to the Merger, Acqco will
not, and will not permit any Subsidiary to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with,
any of its Affiliates, except (a) transactions in the ordinary course of
business that do not involve Holdings or Acqco and are at prices and on terms
and conditions not less favorable to the Borrower or such Subsidiary than
could be obtained on an arm's-length basis from unrelated third parties,
(b) transactions between or among the Borrower and the Subsidiary Loan
Parties not involving any other Affiliate, (c) any Restricted Payment
permitted by Section 6.08, (d) the payment by Holdings, Acqco or the Borrower
of fees, expenses or other amounts to Cypress and its Affiliates in
connection with the Transactions and payments by Holdings, the Borrower,
Acqco and the Subsidiaries to Cypress and its Affiliates made pursuant to any
financial advisory, consulting, financing, underwriting or placement
agreement, or in respect of other investment banking activities, in each case
to the extent that the Board of Directors of such Person has determined in
good faith that such amounts are reasonable in light of current market
practices with respect to payment for such services, (e) employment and
compensation arrangements entered into in the ordinary course of business
with officers of Holdings and the Subsidiaries, (f) customary fees paid to
members of the Board of Directors of Holdings and of the Subsidiaries for
their services as directors, (g) the Ashton Termination Payment (including
any Tax gross-ups associated therewith) and (h) agreements entered into in
the ordinary course of business with consultants who are otherwise Affiliates
of Holdings, the Borrower, the Subsidiaries or, prior to the Merger, Acqco.
SECTION 6.10. Other Indebtednesss. Holdings, the Borrower
and, prior to the Merger, Acqco will not permit any waiver, supplement,
modification, amendment, termination or release of any indenture, instrument
or agreement pursuant to which any Material Indebtedness of Holdings or any
Subsidiary is outstanding to the extent that any such waiver, supplement,
modification, amendment, termination or release would be adverse to the
Lenders.
SECTION 6.11. Restrictive Agreements. Holdings, the
Borrower and, prior to the Merger, Acqco will not and will not permit any
Subsidiary to, directly or indirectly, enter into, incur or permit to exist
any agreement or other arrangement that prohibits, restricts or imposes any
condition upon (a) the ability of Holdings, the Borrower, any other
Subsidiary or, prior to the Merger, Acqco to create, incur or permit to exist
any Lien upon any of its property or assets to secure the Obligations, or (b)
the ability of any Borrower Subsidiary to pay dividends or other
distributions with respect to any shares of its capital stock or to make or
repay loans or advances to the Borrower or any other Borrower Subsidiary or
to Guarantee Indebtedness of the Borrower or any other Borrower Subsidiary,
provided that (i) the foregoing shall not apply to restrictions and
conditions imposed by law or by any Loan Document, (ii) the foregoing shall
not apply to restrictions and conditions existing on the date hereof
identified on Schedule 6.11 (but shall apply to any extension or renewal of,
or any amendment or modification expanding the scope of, any such restriction
or condition), (iii) the foregoing shall not apply to customary restrictions
and conditions contained in agreements relating to the sale of a Subsidiary
pending such sale, provided such restrictions and conditions apply only to
the Subsidiary that is to be sold and such sale is permitted hereunder, (iv)
clause (a) of this Section shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness and (v) clause (a) of this Section shall
not apply to customary provisions in leases restricting the assignment
thereof.
SECTION 6.12. Amendment of Material Documents. Holdings,
the Borrower and, prior to the Merger, Acqco will not, and will not permit
any Subsidiary to, amend, modify or waive any of its rights under (a) its
certificate of incorporation, by-laws or other organizational documents, (b)
the Merger Agreement, the Equity Tender Offer Materials or the Debt Tender
Offer Materials or (c) the Investor Agreement to the extent that such
amendment, modification or waiver would be adverse to the Lenders.
SECTION 6.13. Capital Expenditures. Holdings and the
Borrower will not permit the aggregate amount of Capital Expenditures made by
the Borrower and the Borrower Subsidiaries in any fiscal year to exceed the
amount set forth below opposite such year, provided that for any period set
forth below, the dates constituting the beginning and end of such period
shall refer to the first and last day of the fiscal year of Holdings
beginning and ending, respectively, on or about such dates:
Fiscal Year Amount
----------- ------
February 2, 1998--January 31, 1999 $22,000,000
February 1, 1999--January 30, 2000 $27,000,000
January 31, 2000--January 28, 2001 $28,500,000
January 29, 2001--January 27, 2002 $26,500,000
January 28, 2002--January 26, 2003 $28,000,000
January 27, 2003--January 25, 2004 $29,500,000
January 26, 2004--January 30, 2005 $31,000,000
The amount of permitted Capital Expenditures set forth above in respect of
any fiscal year shall be increased by the lesser of (a)(i) the unused
permitted Capital Expenditures for the immediately preceding fiscal year less
(ii) an amount equal to unused Capital Expenditures carried forward to such
preceding fiscal year and (b) $12,000,000.
SECTION 6.14. Leverage Ratio. (a) Prior to such time as
the Subordinated Notes are issued, Holdings, the Borrower and, prior to the
Merger, Acqco will not permit the Leverage Ratio as of the end of any four-
fiscal-quarter period ending during any period set forth below to be in
excess of the ratio set forth below opposite such period, provided that for
any period set forth below, the dates constituting the beginning and end of
such period shall refer to the last day of the fiscal period of Holdings
ending on or about such dates:
Period Ratio
------ -----
May 23, 1999--January 30, 2000 3.85 to 1.00
May 21, 2000--January 28, 2001 3.25 to 1.00
May 20, 2001--January 27, 2002 2.50 to 1.00
May 19, 2002--January 26, 2003 2.00 to 1.00
May 18, 2003--thereafter 1.50 to 1.00
(b) Following the issuance of the Subordinated Notes,
Holdings, the Borrower and, prior to the Merger, Acqco will not permit the
Leverage Ratio as of the end of any four-fiscal-quarter period ending during
any period set forth below to be in excess of the ratio set forth below
opposite such period, provided that for any period set forth below, the dates
constituting the beginning and end of such period shall refer to the last day
of the fiscal period of Holdings ending on or about such dates:
Period Ratio
------ -----
May 23, 1999--January 30, 2000 5.00 to 1.00
May 21, 2000--January 28, 2001 4.50 to 1.00
May 20, 2001--January 27, 2002 3.75 to 1.00
May 19, 2002--January 26, 2003 3.25 to 1.00
May 18, 2003--January 25, 2004 3.00 to 1.00
May 16, 2004--thereafter 2.50 to 1.00
SECTION 6.15. Consolidated Net Cash Interest Expense
Coverage Ratio. (a) Prior to such time as the Subordinated Notes are issued,
Holdings, the Borrower and, prior to the Merger, Acqco will not permit the
ratio of (i) Consolidated EBITDA to (ii) Consolidated Net Cash Interest
Expense (A) for the fiscal quarter ending May 24, 1998, to be less than 2.65
to 1.00, (B) for the two-fiscal-quarter period ending August 16, 1998, to be
less than 2.65 to 1.00, (C) for the three-fiscal-quarter period ending
November 8, 1998, to be less than 2.65 to 1.00 or (D) for any four-fiscal-
quarter period ending on any date or during any period set forth below to be
less than the ratio set forth below opposite such period, provided that for
any period set forth below, the dates constituting the beginning and end of
such period shall refer to the first and last day of the fiscal period of
Holdings ending on or about such dates:
Date or Period Ratio
-------------- -----
January 31, 1999 2.65 to 1.00
May 23, 1999--January 30, 2000 3.00 to 1.00
May 21, 2000--January 28, 2001 3.50 to 1.00
May 20, 2001--January 27, 2002 3.75 to 1.00
May 19, 2002--thereafter 4.00 to 1.00
(b) Following the issuance of the Subordinated Notes,
Holdings, the Borrower and, prior to the Merger, Acqco will not permit the
ratio of (i) Consolidated EBITDA to (ii) Consolidated Net Cash Interest
Expense (A) for the fiscal quarter ending May 24, 1998, to be less than 1.75
to 1.00, (B) for the two-fiscal-quarter period ending August 16, 1998, to be
less than 1.75 to 1.00, (C) for the three-fiscal-quarter period ending
November 8, 1998, to be less than 1.75 to 1.00 or (D) for any
four-fiscal-quarter period ending on any date or during any period set forth
below to be less than the ratio set forth below opposite such period,
provided that for any period set forth below, the dates constituting the
beginning and end of such period shall refer to the last day of the fiscal
period of Holdings ending on or about such dates:
Date or Period Ratio
-------------- -----
January 31, 1999 1.75 to 1.00
May 23, 1999--January 30, 2000 2.10 to 1.00
May 21, 2000--January 28, 2001 2.40 to 1.00
May 20, 2001--January 27, 2002 2.75 to 1.00
May 19, 2002--thereafter 3.00 to 1.00
SECTION 6.16. Fixed Charge Coverage Ratio. Prior to such
time as the Subordinated Notes are issued, Holdings, the Borrower and, prior
to the Merger, Acqco will not permit the ratio of (a) the sum of
(i) Consolidated EBITDA and (ii) Consolidated Lease Expense to (b) Fixed
Charges (w) for the fiscal quarter ending May 24, 1998, to be less than 1.00
to 1.00, (x) for the two-fiscal-quarter period ending August 16, 1998, to be
less than 1.00 to 1.00, (y) for the three-fiscal-quarter period ending
November 8, 1998, to be less than 1.00 to 1.00 or (z) for any four-fiscal-
quarter period ending on any date or during any period set forth below to be
less than the ratio set forth below opposite such period, provided that for
any period set forth below, the dates constituting the beginning and end of
such period shall refer to the last day of the fiscal period of Holdings
ending on or about such dates:
Date or Period Ratio
-------------- -----
January 31, 1999 1.00 to 1.00
May 23, 1999--January 30, 2000 1.00 to 1.00
May 21, 2000--January 28, 2001 1.05 to 1.00
May 20, 2001--January 27, 2002 1.15 to 1.00
May 19, 2002--thereafter 1.20 to 1.00
SECTION 6.17. Additional Subsidiaries. Holdings, the
Borrower and, prior to the Merger, Acqco will not, and will not permit any
Subsidiary to, create any additional Subsidiary, unless such Subsidiary is a
Borrower Subsidiary.
SECTION 6.18. Merger Consideration; Redemption of Senior
Notes and Convertible Subordinated Notes; Prepayment of Existing Mortgages.
(a) Acqco and Holdings will not pay in the aggregate more than $137,400,000
(net of any cash paid to Holdings upon the exercise of outstanding options to
acquire Shares, assuming that no holder of Convertible Subordinated Notes
exercises its right to convert such notes to Shares prior to the consummation
of the Merger and assuming no exercise of stockholders' appraisal rights) to
shareholders of Holdings and to holders of options to acquire Shares to
acquire all the outstanding Shares and acquire, redeem or terminate all
outstanding rights to acquire Shares.
(b) Holdings will not pay in the aggregate (i) more than
$83,000,000 (plus accrued interest) to holders of the Senior Notes to redeem,
or repurchase pursuant to the Debt Tender Offer, all the outstanding Senior
Notes, (ii) more than $66,500,000 (plus accrued interest) to holders of the
Convertible Subordinated Notes to redeem or repurchase all the outstanding
Convertible Subordinated Notes and (iii) more than $20,000,000 (including
call premiums and accrued interest) to prepay any Existing Mortgages.
SECTION 6.19. Fiscal Year. Holdings will not, and will not
permit the Subsidiaries to, change the financial reporting convention by
which Holdings and the Subsidiaries determine the dates on which their fiscal
years and fiscal quarters will end; provided, however, that Holdings and the
Subsidiaries may, upon 30 days' prior written notice to the Administrative
Agent, change the financial reporting convention so long as (a) such change
applies to Holdings and all the Subsidiaries and (b) such financial reporting
convention specified above is reasonably acceptable to the Administrative
Agent, in which case Holdings and the Administrative Agent will, and are
hereby authorized by the Lenders to, make any adjustments to this Agreement
that are necessary in order to reflect such change in financial reporting
convention.
ARTICLE VII
Events of Default
-----------------
If any of the following events ("Events of Default") shall
occur:
(a) the Borrower shall fail to pay any principal of any
Loan or any reimbursement obligation in respect of any LC
Disbursement when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for prepayment
thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan
or any fee or any other amount (other than an amount referred to in
clause (a) of this Article) payable under this Agreement or any other
Loan Document, when and as the same shall become due and payable, and
such failure shall continue unremedied for a period of five days;
(c) any representation or warranty made or deemed made by
or on behalf of Holdings, the Borrower, any other Subsidiary or Acqco
in or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, or in any report,
certificate, financial statement or other document furnished pursuant
to or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, shall prove to have been
incorrect in any material respect when made or deemed made;
(d) Holdings, the Borrower or, prior to the Merger, Acqco
shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02, 5.04 (with respect to the existence of
Holdings, the Borrower or, prior to the Merger, Acqco), 5.11 or 5.15,
in the second sentence of Section 5.16, in Section 5.17 or in
Article VI;
(e) any Loan Party shall fail to observe or perform any
covenant, condition or agreement contained in any Loan Document
(other than those specified in clause (a), (b) or (d) of this
Article), and such failure shall continue unremedied for a period of
30 days after notice thereof from the Administrative Agent to the
Borrower (which notice will be given at the request of any Lender);
(f) Holdings, the Borrower, any other Subsidiary or, prior
to the Merger, Acqco shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any
Material Indebtedness, when and as the same shall become due and
payable;
(g) any event or condition occurs that results in any
Material Indebtedness becoming due prior to its scheduled maturity or
that enables or permits (with or without the giving of notice, the
lapse of time or both) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause
any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to
its scheduled maturity, provided that (i) this clause (g) shall not
apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such
Indebtedness and (ii) this clause (g) shall not apply to (A) any
right of any holder of the Convertible Subordinated Notes to require
Holdings to redeem such Convertible Subordinated Notes in connection
with the occurrence of a "Redemption Event" (as defined in the
Convertible Subordinated Notes Indenture) arising from the
Transactions or (B) any Existing Mortgage to the extent that the
relevant event under such Existing Mortgage arises from the
Transactions;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of Holdings, the Borrower,
any other Subsidiary or, prior to the Merger, Acqco or its debts, or
of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for
Holdings, the Borrower, any other Subsidiary or, prior to the Merger,
Acqco or for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for 60 days or
an order or decree approving or ordering any of the foregoing shall
be entered;
(i) Holdings, the Borrower, any other Subsidiary or, prior
to the Merger, Acqco shall (i) voluntarily commence any proceeding or
file any petition seeking liquidation, reorganization or other relief
under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent
to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or petition described in clause (h) of this
Article, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for
Holdings, the Borrower, any other Subsidiary or, prior to the Merger,
Acqco or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of
the foregoing;
(j) Holdings, the Borrower, any other Subsidiary or, prior
to the Merger, Acqco shall admit in writing its inability or fail
generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $5,000,000 shall be rendered against
Holdings, the Borrower, any Subsidiary or, prior to the Merger, Acqco
or any combination thereof and the same shall remain undischarged for
a period of 45 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of Holdings, the
Borrower, any other Subsidiary or, prior to the Merger, Acqco to
enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion
of the Required Lenders, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result in
liability of Holdings, the Borrower, any other Subsidiary or, prior
to the Merger, Acqco in an aggregate amount exceeding (i) $1,000,000
in any year or (ii) $5,000,000 for all periods;
(m) (i) any Loan Document (other than any Letter of Credit)
shall, at any time, cease to be in full force and effect (unless
released as permitted under this Agreement) or shall be declared null
and void, or the validity or enforceability in any respect thereof
shall be contested by any Loan Party or (ii) any Lien purported to be
created under any Security Document shall cease to be, or shall be
asserted by any Loan Party not to be, a valid and perfected Lien on
Collateral with a fair market value of $1,000,000 or more, with the
priority required by the applicable Security Document, except (A) as
a result of the sale or other disposition of the applicable
Collateral in a transaction permitted under the Loan Documents or (B)
as a result of the Administrative Agent's failure to maintain
possession of any stock certificates, promissory notes or other
instruments delivered to it under the Pledge Agreement or to file any
continuation statements with respect to the Collateral; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the
Borrower described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event, the Administrative Agent
may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or
different times: (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately, and (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to
be due and payable), and thereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall become due and
payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of
the Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
------------------------
Each of the Lenders and Issuing Banks hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms of the Loan
Documents, together with such actions and powers as are reasonably incidental
thereto.
The bank serving as Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other
Lender and may exercise the same as though it were not the Administrative
Agent, and such bank and its Affiliates may accept deposits from, lend money
to and generally engage in any kind of business with Holdings, the Borrower,
any other Subsidiary or other Affiliate thereof or, prior to the Merger,
Acqco as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth in the Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (b) the Administrative
Agent shall not have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly
contemplated by the Loan Documents that the Administrative Agent is required
to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02), and (c) except as expressly set forth in the Loan
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to
Holdings, the Borrower, any of the other Subsidiaries or, prior to the
Merger, Acqco that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by
it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own gross
negligence or wilful misconduct. The Administrative Agent shall not be
deemed to have knowledge of any Default unless and until written notice
thereof is given to the Administrative Agent by Holdings, the Borrower, a
Lender or, prior to the Merger, Acqco and the Administrative Agent shall not
be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document
delivered thereunder or in connection therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions
set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document or (v) the satisfaction of any condition set forth in
Article IV or elsewhere in any Loan Document, other than to confirm receipt
of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by the proper
Person. The Administrative Agent also may rely upon any statement made to it
orally or by telephone and believed by it to be made by the proper Person,
and shall not incur any liability for relying thereon. The Administrative
Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice
of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and
powers through their respective Related Parties. The exculpatory provisions
of the preceding paragraphs shall apply to any such sub-agent and to the
Related Parties of each Administrative Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication
of the credit facilities provided for herein as well as activities as
Administrative Agent.
Subject to the appointment and acceptance of a successor to
the Administrative Agent as provided in this paragraph, the Administrative
Agent may resign at any time by notifying the Lenders, the Issuing Banks,
Holdings, the Borrower and, prior to the Merger, Acqco. Upon any such
resignation, the Required Lenders shall have the right, in consultation with
Holdings, the Borrower, and, prior to the Merger, Acqco to appoint a
successor. If no successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Banks, appoint a successor Administrative Agent that shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article
and Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it
was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or related agreement or any document
furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
-------------
SECTION 9.01. Notices. Except in the case of notices and
other communications expressly permitted to be given by telephone, all
notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified
or registered mail or sent by telecopy, as follows:
(a) if to Holdings or the Borrower, to it at Frank's Nursery
& Crafts, Inc., 0000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000,
Attention: Chief Financial Officer (Telecopy No. (000) 000-0000);
(b) if to Acqco, to it at Cyrus Acquisition Corp., c/o The
Cypress Group, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx X. Xxxxxxxx (Telecopy No. (000) 000-0000);
(c) if to the Administrative Agent, the Collateral Agent or
the Primary Issuing Bank, to The Chase Manhattan Bank, c/o The Loan
and Agency Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention of Xxxxx Xxxxxx (Telecopy No. (212)
552-5658), with a copy to The Chase Manhattan Bank, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxx Xxxxxx (Telecopy
No. (000) 000-0000); and
(d) if to any other Lender or Issuing Bank, to it at its
address (or telecopy number) set forth in its Administrative
Questionnaire.
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. 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
date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or
delay by the Administrative Agent, any Issuing Bank or any Lender in
exercising any right or power hereunder or under any other Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise
of any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof
or the exercise of any other right or power. The rights and remedies of the
Administrative Agent, any Issuing Bank, the Swingline Lender and the other
Lenders hereunder and under the other Loan Documents are cumulative and are
not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of any Loan Document or consent to any departure by
any Loan Party therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) of this Section, and then such waiver or
consent shall be effective only in the specific instance and for the purpose
for which given. Without limiting the generality of the foregoing, the
making of a Loan or issuance of a Letter of Credit shall not be construed as
a waiver of any Default, regardless of whether the Administrative Agent, the
Swingline Lender, any other Lender or any Issuing Bank may have had notice or
knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor
any provision hereof or thereof may be waived, amended or modified except, in
the case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Administrative Agent, Holdings, the Borrower, the
Required Lenders and, prior to the Merger, Acqco or, in the case of any other
Loan Document, pursuant to an agreement or agreements in writing entered into
by the Administrative Agent and the Loan Party or Loan Parties that are
parties thereto, in each case with the consent of the Required Lenders,
provided that no such agreement shall (i) increase the Commitment of any
Lender without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or LC Disbursement or reduce the rate of interest thereon,
or reduce any fees payable hereunder, without the written consent of each
Lender affected thereby, (iii) postpone the scheduled date of payment of the
principal amount of any Loan or LC Disbursement, or any interest thereon, or
any fees payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender affected thereby, (iv) change
Section 2.18(b) or (c) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each Lender, (v)
change any of the provisions of this Section or the definition of the term
"Required Lenders" or any other provision of any Loan Document specifying the
number or percentage of Lenders (or Lenders of any Class) required to waive,
amend or modify any rights thereunder or make any determination or grant any
consent thereunder, without the written consent of each Lender (or each
Lender of such Class, as the case may be), (vi) release Holdings, any
Subsidiary Loan Party or, prior to the Merger, Acqco from its Guarantee under
the applicable Guarantee Agreement (except as expressly provided in such
Guarantee Agreement), or limit its liability in respect of such Guarantee,
without the written consent of each Lender, or (vii) release all or
substantially all of the Collateral from the Liens of the Security Documents
(except as expressly permitted by the Loan Documents), without the written
consent of each Lender, and provided further that (A) no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent, any Issuing Bank or the Swingline Lender without the prior written
consent of the Administrative Agent, the applicable Issuing Bank or the
Swingline Lender, as the case may be, and (B) any waiver, amendment or
modification of this Agreement that by its terms affects the rights or duties
under this Agreement of the Revolving Lenders (but not the Term Lenders) or
the Term Lenders (but not the Revolving Lenders) may be effected by an
agreement or agreements in writing entered into by Holdings, the Borrower,
the requisite percentage in interest of the affected Class of Lenders and,
prior to the Merger, Acqco.
SECTION 9.03. Expenses; Indemnity; Damage Waiver.
(a) Holdings, the Borrower and, prior to the Merger, Acqco shall pay (i) all
reasonable out-of-pocket expenses incurred by the Agents and their respective
Affiliates, including the reasonable fees, charges and disbursements of a
single counsel for the Agents in each jurisdiction, in connection with the
syndication of the credit facilities provided for herein, the preparation and
administration of the Loan Documents or any amendments, modifications or
waivers of the provisions thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by any Issuing Bank in connection with the
issuance, amendment, renewal or extension of any Letter of Credit by such
Issuing Bank or any demand for payment thereunder and (iii) all out-of-pocket
expenses incurred by the Agents, any Issuing Bank, the Swingline Lender or
any other Lender, including the fees, charges and disbursements of any
counsel for the Agents, any Issuing Bank, the Swingline Lender or any other
Lender, in connection with the enforcement or protection of their rights in
connection with the Loan Documents, including their rights under this
Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b) Each of Holdings, the Borrower and, prior to the
Merger, Acqco shall indemnify the Agents, each Issuing Bank, the Swingline
Lender and each other Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold
each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the reasonable fees, charges and
disbursements of any single counsel for such Indemnitee, and any other
Indemnitees as to which no conflict of interest exists, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of any Loan Document or any other
agreement or instrument contemplated hereby, the performance by the parties
to the Loan Documents of their respective obligations thereunder or the
consummation of the Transactions or any other transactions contemplated
hereby, (ii) any Loan or Letter of Credit or the use of the proceeds
therefrom (including any refusal by an Issuing Bank to honor a demand for
payment under a Letter of Credit issued by such Issuing Bank if the documents
presented in connection with such demand do not strictly comply with the
terms of such Letter of Credit), (iii) any actual or alleged presence or
release of Hazardous Materials on or from any Mortgaged Property or any other
property currently or formerly owned or operated by Holdings, the Borrower or
any of the Subsidiaries, or any Environmental Liability related in any way to
the Borrower, any of the Subsidiaries or, prior to the Merger, Acqco, or (iv)
any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any
other theory and regardless of whether any Indemnitee is a party thereto,
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
resulted from the gross negligence or wilful misconduct of such Indemnitee or
any Affiliate of such Indemnitee (or of any officer, director, employee,
advisor or agent of such Indemnitee or any such Indemnitee's Affiliates.
(c) To the extent that any Loan Party fails to pay any
amount required to be paid by it to the Agents, any Issuing Bank or the
Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Agents, the applicable Issuing Bank or the
Swingline Lender, as the case may be, such Lender's pro rata share
(determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the Agents,
such Issuing Bank or the Swingline Lender in its capacity as such. For
purposes hereof, a Lender's "pro rata share" shall be determined based upon
its share of the sum of the total Revolving Exposures, outstanding Term Loans
and unused Commitments at the time.
(d) To the extent permitted by applicable law, Holdings,
the Borrower and, prior to the Merger, Acqco shall not assert, and each
hereby waives, any claim against any Indemnitee, on any theory of liability,
for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or Letter of Credit or the use of the proceeds
thereof.
(e) All amounts due under this Section shall be payable
reasonably promptly after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions
of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby
(including any Affiliate of any Issuing Bank that issues any Letter of
Credit), except that none of Holdings, the Borrower and, prior to the Merger,
Acqco may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed
to confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of any
Issuing Bank that issues any Letter of Credit) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Agents, each Issuing
Bank and the Lenders) any legal or equitable right, remedy or claim under or
by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or
a portion of its Commitment and the Loans at the time owing to it), provided
that (i) except in the case of an assignment to a Lender or an Affiliate of a
Lender, each of the Borrower and the Administrative Agent (and, in the case
of an assignment of all or a portion of a Revolving Commitment or any
Lender's obligations in respect of its LC Exposure or Swingline Exposure,
each Issuing Bank and the Swingline Lender) must give their prior written
consent to such assignment (which consent shall not be unreasonably
withheld), (ii) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining amount of the
assigning Lender's Commitment or Loans, the amount of the Commitment or 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 Administrative Agent) shall not be less than $5,000,000
unless each of the Borrower and the Administrative Agent otherwise consent,
(iii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement, except that this clause (iii) shall not be construed to
prohibit the assignment of a proportionate part of all the assigning Lender's
rights and obligations in respect of one Class of Commitments or Loans, (iv)
the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500, and (v) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire, and provided further that any consent of the Borrower
otherwise required under this paragraph shall not be required if an Event of
Default under clause (h) or (i) of Article VII has occurred and is
continuing. Subject to acceptance and recording thereof pursuant to
paragraph (d) of this Section, from and after the effective date specified in
each Assignment and Acceptance the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance
covering all of the assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue to
be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices in The City of
New York 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
the Commitment of, and principal amount of the Loans and LC Disbursements
owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and Holdings,
the Borrower, the Administrative Agent, each Issuing Bank, the Lenders and,
prior to the Merger, Acqco may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower, any Issuing Bank
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be
a Lender hereunder), the processing and recordation fee referred to in
paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall
accept such Assignment and Acceptance and record the information contained
therein in the Register. No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in
this paragraph.
(e) Any Lender may, without the consent of any party, sell
participations to one or more banks or other entities (a "Participant") in
all or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it),
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative Agent, any Issuing Bank, the Swingline Lender,
the other Lenders and, prior to the Merger, Acqco shall continue to deal
solely and directly with such Lender in connection with such Lender's rights
and obligations under this Agreement. Any agreement or instrument pursuant
to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce the Loan Documents and to approve any
amendment, modification or waiver of any provision of the Loan Documents,
provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (f) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.18(c) as though it were a
Lender.
(f) A Participant shall not be entitled to receive any
greater payment under Section 2.15, 2.16 or 2.17 than the applicable Lender
would have been entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such Participant is
made with the Borrower's prior written consent and, prior to giving such
consent, the Borrower is made aware of any additional costs to which such
Participant may be entitled. A Participant that would be a Foreign Lender if
it were a Lender shall not be entitled to the benefits of Section 2.17 unless
the Borrower is notified of the participation sold to such Participant and
such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.17(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to
any such pledge or assignment of a security interest, provided that no such
pledge or assignment of a security interest shall release a Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements,
representations and warranties made by the Loan Parties in the Loan Documents
and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the other parties hereto and shall survive the
execution and delivery of the Loan Documents and the making of any Loans and
issuance of any Letters of Credit, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
fee or any other amount payable under this Agreement is outstanding and
unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not expired or terminated. The provisions of Sections 2.15, 2.16, 2.17
and 9.03 and Article VIII shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Letters of
Credit and the Commitments or the termination of this Agreement or any
provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness.
This Agreement may be executed in counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single
contract. This Agreement, the other Loan Document and any separate letter
agreements with respect to fees payable to the Agents constitute the entire
contract among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been
executed by the Agents and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and
assigns. 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 9.07. Severability. Any provision of this
Agreement held to be invalid, illegal or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default
shall have occurred and be continuing, each Lender and each of its Affiliates
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 other
obligations at any time owing by such Lender or Affiliate to or for the
credit or the account of the Borrower against any of and all the obligations
of the Borrower now or hereafter existing under this Agreement held by such
Lender, and then due and owing, whether by acceleration or otherwise. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to
Service of Process. (a) This Agreement shall be construed in accordance
with and governed by the law of the State of New York.
(b) Each of Holdings, the Borrower and, prior to the
Merger, Acqco hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of the Supreme Court of the
State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to
any Loan Document, or for recognition or enforcement of any judgment, 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 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 or any other Loan Document shall affect
any right that the Agents, any Issuing Bank or any Lender may otherwise have
to bring any action or proceeding relating to this Agreement or any other
Loan Document against Holdings, the Borrower, its properties or, prior to the
Merger, Acqco in the courts of any jurisdiction.
(c) Each of Holdings, the Borrower and, prior to the
Merger, Acqco hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any other Loan Document in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01.
Nothing in this Agreement or any other Loan Document will affect the right of
any party to this Agreement to serve process in any other manner permitted by
law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
SECTION 9.11. Headings. Article and Section headings and
the Table of Contents used herein are for convenience of reference only, are
not part of this Agreement and shall not affect the construction of, or be
taken into consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Agents, the
Issuing Banks, the Swingline Lender and the other Lenders agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates' directors,
officers, employees and agents, including accountants, legal counsel and
other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent
requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process,
(d) to any other party to this Agreement, (e) in connection with the exercise
of any remedies hereunder or any suit, action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder
or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of Holdings,
the Borrower and, prior to the Merger, Acqco or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach
of this Section or (ii) becomes available to the Agents, any Issuing Bank or
any Lender on a nonconfidential basis from a source other than Holdings or
the Borrower. For the purposes of this Section, the term "Information" means
all information received from Holdings, the Borrower or, prior to the Merger,
Acqco relating to Holdings, the Borrower, its business or, prior to the
Merger, Acqco, other than any such information that is available to the
Agents, any Issuing Bank or any Lender on a nonconfidential basis prior to
disclosure by Holdings or the Borrower, provided that, in the case of
information received from Holdings, the Borrower or, prior to the Merger,
Acqco after the date hereof, such information is clearly identified at the
time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable
to any Loan, together with all fees, charges and other amounts that are
treated as interest on such Loan under applicable law (collectively, the
"Charges"), shall exceed the maximum lawful rate (the "Maximum Rate") that
may be contracted for, charged, taken, received or reserved by the Lender
holding such Loan in accordance with applicable law, the rate of interest
payable in respect of such Loan hereunder, together with all Charges payable
in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of
such Loan but were not payable as a result of the operation of this Section
shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or periods shall be increased (but not above the
Maximum Rate therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Effective Rate to the date of repayment, shall
have been received by such Lender.
SECTION 9.14. Pre-Funding Escrow Arrangements. The
Borrower currently intends that the Effective Date will occur on December 24,
1997, and currently desires that the Lenders make available on the Effective
Date (a) Term Loans in an aggregate amount equal to $[ ] and
(b) Revolving Loans in an aggregate amount equal to $[ ] (such aggregate
amount of the Borrowings to be made on the Effective Date, the "Estimated
Initial Loan Amount"). In order to ensure that the Estimated Initial Loan
Amount will be available at 9:00 a.m., New York City time, on December 24,
1997, the Borrower (a) will deliver a Borrowing Request (a "Pre-Funding
Request") to the Administrative Agent not later than 1:00 p.m., New York City
time, on December 23, 1997, and (b) will request pursuant to such Pre-Funding
Request that the Lenders transfer an amount equal to the Estimated Initial
Loan Amount (such amount, the "Delivered Funds") to an account designated by
the Administrative Agent (the "Escrow Account") on December 23, 1997. The
Borrower further desires that the amount (the "Returned Amount") that is
equal to the difference, if any, between (i) the Delivered Amount and
(ii) the amount (the "Actual Initial Loan Amount") identified in a Borrowing
Request that the Borrower will deliver to the Administrative Agent at 12:00
a.m. on December 24, 1997, will be returned to the Lenders from the Escrow
Account. The following agreements and understandings will apply with respect
to (a) the arrangements for the availability of funds to enable the funding
by the Lenders of the Estimated Initial Loan Amount upon the satisfaction of
the conditions set forth in Sections 4.01 and 4.02 of this Agreement (the
"Closing") and (b) the release of the Actual Initial Loan Amount upon the
Closing:
(i) The Administrative Agent, on behalf of the Lenders,
shall have sole and exclusive dominion over and control of the Escrow
Account and all property from time to time deposited therein.
(ii) Upon receipt from the Borrower of a Pre-Funding
Request, the Administrative Agent will provide notice to each Lender,
in the manner that would be applicable to a Borrowing Request under
Section 2.03, that such Lender should make available to the
Administrative Agent not later than 2:00 p.m., New York City time, on
December 23, 1997, such Lender's pro rata portion of the Delivered
Funds, as such pro rata portion may be determined by the
Administrative Agent pursuant to the respective Commitments of the
Lenders as set forth on Schedule 2.01. Each Lender shall make its
pro rata portion of the Delivered Funds available to the
Administrative Agent by wire transfer of immediately available funds
to the Escrow Account.
(iii) Notwithstanding anything in this Agreement or any
other document to the contrary, (A) the Administrative Agent shall
hold the Delivered Funds for the account of the Lenders pending
release of the Actual Initial Loan Amount pursuant to paragraph (v)
below and (B) the Borrower shall have no right, title or interest in
or to the Delivered Funds pending such release. To the extent that
the Administrative Agent has any interest in the Delivered Funds, the
Administrative Agent hereby grants a Lien on such interest to the
Collateral Agent for the benefit of the Lenders. The Administrative
Agent shall use commercially reasonable efforts to invest in a time
deposit with the Nassau, Bahamas, branch of the Administrative Agent
such of the Delivered Funds as are on deposit in the Escrow Account
at 2:30 p.m., New York City time, on December 23, 1997. All earnings
on the Delivered Funds (the "Investment Earnings") shall be paid into
the Escrow Account. The Administrative Agent shall not be liable to
any Person for any loss suffered in connection with any investment of
funds made by it in accordance with this Section 9.14.
(iv) The Borrower shall reimburse each Lender for its
cost of delivery of the Delivered Funds to the Administrative Agent.
Such reimbursement shall, as to each Lender, be equal to the product
of (A) such Lender's pro rata portion (determined as set forth above)
of the Delivered Funds times (B) a percentage equal to the Alternate
Base Rate plus the margin that would be applicable to such Lender's
ABR Loans as of the Effective Date multiplied by (C) a fraction the
numerator of which is the actual number of days elapsed from
December 23, 1997, to the date the Actual Initial Loan Amount is
released to the Borrower or all of the Delivered Funds are
distributed to the Lenders pursuant to paragraph (v) below, as the
case may be, and the denominator of which is 365. Such reimbursement
in respect of the Delivered Funds shall be paid by the Borrower to
the Administrative Agent on behalf of the Lenders on the first
Interest Payment Date to occur after the Effective Date pursuant to
the terms of this Agreement; provided, however, that if all of the
Delivered Funds are released to the Lenders (and the Actual Initial
Loan Amount is not released to the Borrower) pursuant to
paragraph (v) below, such reimbursement amount shall be payable by
the Borrower immediately upon release of the Delivered Funds.
(v) Upon the occurrence of the Closing on December 24,
1997, the Administrative Agent is authorized to release to and
thereby make available (A) to the Borrower (x) the Actual Initial
Loan Amount and (y) all Investment Earnings and (B) to the Lenders,
the Returned Amount. If the Closing has not occurred by 11:59 p.m.,
New York City time, on December 24, 1997, all of the Delivered Funds
shall be immediately released to the Administrative Agent for
distribution to the Lenders on December 26, 1997, and all Investment
Earnings shall be released to the Administrative Agent to the extent
necessary to offset amounts payable by the Borrower to the Lenders.
(vi) In order to induce the Administrative Agent to act
under this Section 9.14, Holdings, the Borrower, Acqco, the
Administrative Agent and the Lenders agree that:
(A) The duties and obligations of the
Administrative Agent under this Section 9.14 are those
herein specifically provided and no other. The
Administrative Agent shall not incur any liability
whatsoever other than for its own wilful misconduct or gross
negligence.
(B) The Administrative Agent shall not have any
responsibility for the genuineness or validity of any
document or other material presented to or deposited with it
pursuant to this Section 9.14, nor any liability for any
action taken, suffered or omitted in accordance with any
written instructions or certificates given to it hereunder
and believed by it to be signed by the proper party or
parties pursuant to this Section 9.14.
(C) In the event that the Administrative Agent
shall be uncertain as to its duties or rights hereunder or
shall receive instructions, claims or demands from any party
hereto that, in its opinion, conflict with any of the
provisions under this Section 9.14, the Administrative Agent
shall be entitled to refrain from taking any action and its
sole obligation shall be to keep safely all property held in
escrow until it shall be directed otherwise in writing by
all the other parties hereto or by a final order or judgment
of a court of competent jurisdiction.
(D) The Administrative Agent shall not be bound by
any modification, amendment, termination, cancellation,
rescission or supersession of this Section 9.14 unless the
same shall be in writing and signed by all the other parties
hereto, and, if its rights, duties or immunities as
Administrative Agent are affected thereby, unless it shall
have given its prior written consent thereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of
the day and year first above written.
FRANK'S NURSERY & CRAFTS, INC.,
by /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
Title: President and Chief
Executive Officer
CYRUS ACQUISITION CORP.,
by /s/ Xxxxxx Xxxxxxx
---------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
GENERAL HOST CORPORATION,
by /s/ Xxxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
Title: President and Chief
Executive Officer
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
Collateral Agent, Issuing Bank and Swingline Lender,
by /s/ Xxxxxxxx Xxxxxxx, Xx.
---------------------------
Name: Xxxxxxxx Xxxxxxx, Xx.
Title: Vice President
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
individually and as Documentation Agent,
by /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
[OTHER BANKS],
by /s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title: Director
SCHEDULE 1.01(a)
TO CREDIT AGREEMENT
MORTGAGED PROPERTIES
Store Address Town State Zip
----- ------- ---- ----- ---
5 00000 XXXXXXXX XXXXXX XXXXXXXX XXXX. XX 00000
15 0000 XXX XXXX XXXXXXX XXXX XX 00000
23 0000 X. XXXXX XX. XXXXXXX XX 00000
26 0000 X. XXXXX XXXXXXXX XX 00000
27 0000 X. XXXXX XX. XXXXXXXX XX 00000
28 0000 X. XXXXXXX XX. XXXXX XX 00000
29 0000 XXXXXXXX XXXX. XX. XXXXX XX 00000
30 00000 XXX XXXX XXXXX XX 00000
45 0000 XXXX XXX. X. XXXXXXXXXXX XX 00000
58 0000 XXXXXXX XXXX XXXXXXXX XX 00000
81 0000 00XX XX. X.X. XXXXXXXXXX XX 00000
85 000 XXXX XXXXX XXXXXXX XX 00000
86 8032 XXX-18 BURLINGTON PK. XXXXXXXX XX 00000
93 0000 X. XXXXXXXXXXXX XXXXXXX XX 00000
94 0000 XXXXXXXXX XXXXXX XX 00000
102 10901 BUSTLETON XXXXXXXXXXXX XX 00000
104 00000 XXXXXXXXXXXX XX. XXXXXX XXXXX XX 00000
105 000 X. XXXXXXX XXX. XXXXX XX 00000
110 0000 X. XXX XXXXX XXXXXXXXXX XX 00000
111 0000 00XX XX. X. XX. XXXXXXXXXX XX 00000
112 000 00XX XXXXXX XXXXXX XX 00000
113 0000 X.X. 00 XXX XXXX XXXXXX XX 00000
117 0000 X. XXXXXX XXXXXX XXXXX XX 00000
118 0000 XXXXXXX XXXX XXXXX XX 00000
119 00000 XXXXXXXXXX XX. XXXXX XX 00000
120 0000 XXXXXXXXX XXXX. XXXXX XX 00000
134 00000 XXXXXXXXXX XXXX XXXXXXX XX 00000
141 0000 XXXXX XXXXX XX. XXXXXXX XXXX XX 00000
151 0000 00 XXXX XXXX XXXXXX XX 00000
164 0000 X. XXXXXX XXXX XXX XXXX XX 00000
178 0000 XXXXXXXXXXXXX XX. XXXXXXX XX 00000
179 0000 XXXXXXXXX XX. XXXXXXXXX XX 00000
181 0000 XXXX XXX XXXXX XXXXXX XXXXXX XX 00000
188 000 X. XXXXXXXXX XXXXXXX XX. XXXX XX 00000
189 0000 X. XXXXX XXXXXX XX 00000
199 0000 XXXXX XXXXXX XXXX XX. XXXXXXXXXXX XX 00000
202 0000 XXXXXXXX XXX. XXXXXXXXXX XX 00000
213 0000 XXXXXX XX. XXXXXXXXX XX 00000
240 0000 XXX XXXX XXXX XXXXX XXXXXXX XX 00000
259 0000 X. XXXXX XX. XXXXXXXXX XX 00000
266 00000 XXXXXXXXXX XX. XXXXXXXXXX XX 00000
272 00 X. XXXX XXXXXX XXXXXXXXX XX 00000
286 0000 XXXXXXX 00 XXXX XXX. XXX XXXX XX 00000
605 000 XXXXXXXX XXXX X. XXXX XXXXXX XX 00000
622 000 XXXXX XXXXXX XXXXXXX XX 00000
624 000 XXXXX 00 XXXXXX XX 00000
625 0000 XXXXXXX 00 XXXXXX XX 00000
638 0000 XXXXX 0 XXXXX XXXXXX XX 00000
645 000 XXXXXXXX XX. (XXX. 00) XXXXXXX XX 00000
648 00 XXXXXXXXXX XXXXX XXXXXXXX XX 00000
649 000 XXXXXXX XX. (XXX. 9) XXXXXX XX 00000
652 000 XXXXXX XXXX (XXX. 00) XXXXXXXXXXX XX 00000
84 00000 XXXX XXXX XXXXXX XXX. XX 00000
87 0000 00XX XX. XXXXXXXXX XXXX XX 00000
88 000 X. XXXXX XXX XX. XXXXXXXX XX 00000
90 0000 X. XXXXXXX XXX. XXXXXXXXXXXX XX 00000
92(40 00000 XXXX XXXX XXXXXXX XXXXXXXX XX 00000
1)
98 0000 XXXXX XX. XX. XXXXXXX XX 00000
103 0000 XXXX XXXXXX XXXX. XXXX XXXXXX XX 00000
107 1520 AURORA XXXXXXXXXX XX 00000
156 0000 X. XXXXXXXX XXXXXXXX XXXX XX 00000
214 0000 XXXXX XXXX. XXXXXXXX XX 00000
219 0000 XXXXXX XXXX XXXXXXXX XX 00000
269 0000 X. XXXXXXX XX. XXXXX XXXX XX 00000
184 00000 X. XXXXX XXXX XXXXXX XX 00000
616 000 XXXXXXX XXX. XXX XXXXX XX 00000
SCHEDULE 1.01(b)
TO CREDIT AGREEMENT
EXISTING MORTGAGES
1. Mortgages, Security Agreements and Assignments of Leases and Rents
(or the local jurisdiction equivalent) dated as of April 22, 1996 by Borrower
to First Union National Bank of North Carolina securing the following
properties:
Store Address Town State Zip
----- ------- ---- ----- ---
32 0000 X. XXXXXX- XXXXXXXX XX 00000
GRANDVILLE
33 0000 XXXXXXXXXX X.X. XXXXX XXXXXX XX 00000
80 X-0000 XXXXXX XX. XXXXX XX 00000
142 000 XXXXXXXX XXXXX XXXXXXXXXX XX 00000
205 0000 XXXXX XXX. XXXXXXXXXX XX 00000
208 0000 XXXXX XXXX XXXXXXXXXX XX 00000
2. Mortgage dated August 4, 1994 made by Borrower to
N.A.D. Realty Co. Inc., with related Mortgage Note dated as
of August 4, 1994, securing the following property:
Store Address Town State Zip
----- ------- ---- ----- ---
610 000 XXXXX XXXXX XXXX XXXXX XXXXXX XX 00000
3. First Mortgage, Assignment of Rent, Security
Agreement and Fixture Filing made by Borrower in favor of
National Realty Funding, L.L.C., dated August 19, 1997, with
related Promissory Note, Assignment of Rents, Leases and
Profits, Guaranty Agreement, Completion/Repair Escrow and
Security Agreement, Borrower's Certificate of Representations
and Warranties, Environmental Escrow Agreement and
Environmental Indemnity Agreement, all dated as of August 19,
1997, securing the following property:
Store Address Town State Zip
----- ------- ---- ----- ---
601 0000 X. XXXXXXX XXXXXXXX XXXXXXXXXX XX 00000
4. Commercial Mortgages made by Borrower to MetLife
Capital Financial Corporation, dated as of August 31, 1995,
with related Security Agreements, Assignments of Rents and
Leases, Guaranties, Promissory Notes, Borrowers' Certificates
and Certificates of Hazardous Substances, all dated August
31, 1995**, securing the following properties:
Upon the consummation of the Tender Offers there will be a default
and/or a right of the lender to require repayment under these
mortgages.
To be repaid and terminated on or prior to the Effective Date.
84 00000 XXXX XXXX XXXXXX XXX. XX 00000
87 0000 00XX XX. XXXXXXXXX XX 00000
PARK
88 000 X. XXXXX XXX XX. XXXXXXXX XX 00000
90 0000 X. XXXXXXX XXX. XXXXXXXXXXXX XX 00000
92(401) 00000 XXXX XXXX XXXXXXX XX 00000
TOWNSHIP
98 0000 XXXXX XX. XX. XXXXXXX XX 00000
103 0000 XXXX XXXXXX XXXX. XXXX XXXXXX XX 00000
107 1520 AURORA XXXXXXXXXX XX 00000
156 0000 X. XXXXXXXX XX. XXXXXXXX XX 00000
CITY
214 0000 XXXXX XXXXXXXXX XXXXXXXX XX 00000
219 0000 XXXXXX XXXX XXXXXXXX XX 00000
267 0000 X. XXXXXXX XX. XXXXX XXXX XX 00000
5. Mortgage Deeds and Security Agreements dated as of
January 25, 1996 made by Borrower to People's Bank, with
related Mortgage Note, Assignment of Rents and Leases,
Guaranty and Indemnity Agreement and Escrow Agreement
securing the following properties:
Store Address Town State Zip
----- ------- ---- ----- ---
631 000 XXXX XXXX XXXXXX XXXXXXXX XX 00000
632 000 XXXXXXXXXXXX XX. XXXXXX XX 00000
633 0000 XXXXX XXXXXX XXXXXXXXXXX XX 00000
636 000 XXXXX XXXXX XXXX XXXXXXXXXX XX 00000
643 000 XXXXXX XXXX XXXX XX 00000
HARTFORD
Mortgage and Security Agreements dated as of January
25, 1996 made by Borrower to People's Bank, with related
Mortgage Note, Assignment of Rents and Leases, Guaranty and
Indemnity Agreement and Escrow Agreement securing the
following property:
Store Address Town State Zip
----- ------- ---- ----- ---
000 XXX. #0 X. XXXXXXX XXXX XXXXXXXX XX 00000
6. Mortgages dated as of October 16, 1995, as amended
as of December 1, 1995, made by Borrower to Midland
Commercial Financing Corp., with related Amended and Restated
Promissory Note dated as of December 1, 1995, Assignments of
Rents and Leases dated as of October 16, 1995, amended as of
December 1, 1995, Amended and Restated Guaranty dated as of
December 1, 1995, Escrow Agreements dated as of October 13,
1995, Borrower's Certificate dated January 26, 1996 and
Environmental Indemnity Agreement dated January 26, 1996,
securing the following properties:
34 0000 XXXXX XXXXX XXXXXX XX 00000
100 0000 XXXXXX XXXXXX XX 00000
7. Mortgages dated as of January 26, 1996 made by
Borrower to Midland Loan Services, L.P., with related
Promissory Notes, Assignment of Rents and Leases, Guaranties,
Escrow Agreements, Borrower's Certificate and Environmental
Indemnity Agreement, all dated as of January 26, 1996,
securing the following properties:
Store Address Town State Zip
----- ------- ---- ----- ---
65 0000 XXXXXXX #00 XXXXXXXXX XX 00000
99 0000 XXXXXXXX XXXXXXXXXX XX 00000
101 0000 XXXXXXXX XXXXXX XX. XXXXXXXX XX 00000
106 0000 X. XXXXXXXXX XXXXXXXXXXXX XX 00000
135 00000 XX. XXXXXXX XXXX XXXXXXXXX XX 00000
RD.
139 0000 XXXXX X. XXXXXX XX. XXXXXXX XX 00000
140 000 X. XXXX XXXX XXXX XXXXXX XX 00000
163 0000 X. X.X. XXXXXXX XXXXXXX XXXX XX 00000
167 0000 XXXXXX XXXX XX. XXXXXXXXXX XX 00000
168 0000 XXXXXXX XX. XXXXXX XXXXX XX 00000
244 0000 XXXX XXXX XXXX XXXXXXX XX 00000
245 0000 XXXXXXXX XXXXX XXXXX XX 00000
265 4630 HWY 00 X XXXXX XX. XX. XXXXXXX XX 00000
277 0000 X. XXXXXXXXX XXXXXXXXXX XX 00000
TWP.
623 000 XXX XXXX XXXX XXXXXX XX 00000
ISLAND
626 000 XXXXX XXXXXXXXX XXXXXXXXX XX 00000
628 000 XXXXXXX 000 XXXXX XXXXXXXXXXX XX 00000
8. Mortgage, Security Agreement and Assignment of
Leases and Rents dated as of March 14, 1996 made by Borrower
to Midland Loan Services, L.P., with related Promissory Note,
Assignment of Rents and Leases, Guaranty and Escrow
Agreement, all dated as of March 14, 1996, securing the
following property:
25 0000 00XX XX. X.X. XXXXX XXXXXX XX 00000
9. Mortgages, Security Agreements, Assignments of
Leases and Rents, Fixture Filings and Financing
Statements made by Borrower to Comerica Bank, dated
as of November 29, 1996, with related Mortgage-
Backed Credit Agreement dated as of November 29,
1996, First Amendment to Mortgage-Backed Credit
Agreement dated as of June 13, 1997, Second
Amendment to Mortgage-Backed Credit Agreement dated
as of July 25, 1997 and Mortgage-Backed Note dated
as of November 29, 1996** securing the following
properties:
Store Address Town State Zip
----- ------- ---- ----- ---
5 00000 XXXXXXXX XXXXXX XXXXXXXX XX 00000
HGTS.
15 0000 XXX XXXX XXXXXXX XXXX XX 00000
23 0000 X. XXXXX XX. XXXXXXX XX 00000
26 0000 X. XXXXX XXXXXXXX XX 00000
27 0000 X. XXXXX XX. XXXXXXXX XX 00000
28 0000 X. XXXXXXX XX. XXXXX XX 00000
29 0000 XXXXXXXX XXXX. XX. XXXXX XX 00000
30 00000 XXX XXXX XXXXX XX 00000
45 0000 XXXX XXX. X. XXXXXXXXXXX XX 00000
58 0000 XXXXXXX XXXX XXXXXXXX XX 00000
81 0000 00XX XX. X.X. XXXXXXXXXX XX 00000
85 000 XXXX XXXXX XXXXXXX XX 00000
86 0000 XXX-00 XXXXXXXXXX XXXXXXXX XX 00000
PK.
93 0000 X. XXXXXXXXXXXX XXXXXXX XX 00000
94 0000 XXXXXXXXX XXXXXX XX 00000
102 10901 BUSTLETON XXXXXXXXXXXX XX 00000
104 00000 XXXXXXXXXXXX XX. XXXXXX XXXXX XX 00000
105 000 X. XXXXXXX XXX. XXXXX XX 00000
110 0000 X. XXX XXXXX XXXXXXXXXX XX 00000
111 0000 00XX XX. X. XX. XX 00000
PETERSBURG
112 000 00XX XXXXXX XXXXXX XX 00000
113 0000 X.X. 00 XXX XXXX XX 00000
XXXXXX
117 0000 X. XXXXXX XXXXXX XXXXX XX 00000
118 0000 XXXXXXX XXXX XXXXX XX 00000
119 00000 XXXXXXXXXX XX. XXXXX XX 00000
120 0000 XXXXXXXXX XXXX. XXXXX XX 00000
134 00000 XXXXXXXXXX XXXX XXXXXXX XX 00000
141 0000 XXXXX XXXXX XX. XXXXXXX XXXX XX 00000
151 0000 00 XXXX XXXX XXXXXX XX 00000
164 0000 X. XXXXXX XXXX XXX XXXX XX 00000
178 0000 XXXXXXXXXXXXX XX. XXXXXXX XX 00000
179 0000 XXXXXXXXX XX. XXXXXXXXX XX 00000
181 0000 XXXX XXX XXXXX XXXXXX XX 00000
SHORES
188 000 X. XXXXXXXXX XXXXXXX XX. XXXX XX 00000
189 0000 X. XXXXX XXXXXX XX 00000
199 0000 XXXXX XXXXXX XXXX XXXXXXXXXXX XX 00000
RD.
202 0000 XXXXXXXX XXX. XXXXXXXXXX XX 00000
213 0000 XXXXXX XX. XXXXXXXXX XX 00000
240 0000 XXX XXXX XXXX XXXXX XX 00000
HEIGHTS
259 0000 X. XXXXX XX. XXXXXXXXX XX 00000
266 00000 XXXXXXXXXX XX. XXXXXXXXXX XX 00000
272 00 X. XXXX XXXXXX XXXXXXXXX XX 00000
286 0000 XXXXXXX 00 XXXX XXX XXXX XX 00000
TWP.
605 000 XXXXXXXX XXXX X. XXXX XX 00000
BRANCH
622 000 XXXXX XXXXXX XXXXXXX XX 00000
624 000 XXXXX 00 XXXXXX XX 00000
625 0000 XXXXXXX 00 XXXXXX XX 00000
638 0000 XXXXX 0 XXXXX XXXXXX XX 00000
645 000 XXXXXXXX XX. (XXX. XXXXXXX XX 00000
44)
648 00 XXXXXXXXXX XXXXX XXXXXXXX XX 00000
649 000 XXXXXXX XX. (XXX. 9) XXXXXX XX 00000
652 000 XXXXXX XXXX (XXX. XXXXXXXXXXX XX 00000
20)
SCHEDULE 1.01(c)
TO CREDIT AGREEMENT
CAPITAL LEASES
(Real Property)
Store Address Town State Zip
----- ------- ---- ----- ---
8 27650 SCHOOLCRAFT XXXXXXX XX 00000
10 00000 XXXXXX XX. XXXXX XXXXXX XX 00000
17 0000 XXXXXXXXX XXX XXXXX XX 00000
36 0000 X. XXXXXXXX XXXXXX XX 00000
38 000 XXXX XXXX XXXXXXXXXX XX 00000
40 000 X. XXXXX XXX. XXXXX XXXXXX XX 00000
47 00000 XXXXXXXX XXX. XXXXXXXXXX XX 00000
48 00 XXXXX XXXXX XXXXXXXXX XXXXX XX 00000
50 000 XXXX XXXX XX. XXXXXXXXX XX 00000
51 000 X. XXXXXXXXX XXXXXXX XX 00000
52 0000 XXXXX XXXX XXXX XXXXXXX XXXX XX 00000
56 00000 XXXXX XX. XXXXXXXXX XX 00000
62 0000 X. 00XX XX. XXXXXXXXX XX 00000
63 0000 X.X. 00 XXXXX XXXXXXXXXXXX XX 00000
66 0000 X. XXXXXX XX. XXXX XX. XXXX XX 00000
67 0000 X. 000XX XX. XXXXXX XXXX XX 00000
68 0000 X. 00XX XX. XXXXXXXXX XX 00000
69 0000 XXXXX XXXXXXXX XX. XXXXXXXX XX 00000
71 0000 XXXXXXXX XXXX XXXXXXXXX XX 00000
72 0000 XXXXXXXXX XXX. XXXX XXXXXXXXX XX 00000
74 0000 00 XXXX XXXX XXXXXXXX XXXXXXX XX 00000
75 0000 X. XXXXXXXXXX XXXXXXXXXXXX XX 00000
76 0000 XXXXXXXXX XXXX XXXXXXXX XX 00000
77 000 X. XXXXXX XXXXX XXXXXX XX 00000
79 0000 XXXXXXXXX XX. XXXXXXXXXXXX XX 00000
82 000 XXXXXXX XXX. XXXXXXX XXXX XX 00000
83 0000 00XX XX. XXXXXXXXXX XX 00000
91 0000 XXXXX XXXX. X. XXXXXX XXXXX XX 00000
108 0000 X. 00XX XX. X. XXXXXXXXX XX 00000
114 0000 XXXXXX XXXX XXX XXXX XXXXXX XX 00000
152 00 X. XXXXXXX XXX. XXXXXXXXX XX 00000
157 0000 XXX XXXXXXXXXX XXXX XXXXXXX XX 00000
175 0000 X. XXXXXX XX. X XXXXXXXXX XX 00000
190 0000 XXXXX XX. #0 XXXXXXXX XX 00000
201 0000 XXXXXXXX XX. XXXXXXXX XX 00000
204 0000 XXXXX XX. #00 XXXXXXXXX XX 00000
217 0000X X. XXXXXXXXX XXX. XXXXXXX XX 00000
227 0000 XXXXXXXXXX XXXX XXXXXXXXXX XX 00000
SCHEDULE 1.01(d)
TO CREDIT AGREEMENT
INACTIVE SUBSIDIARIES
Nursery Distributors, Inc.
General Host Holding Corp.
AMS Industries, Inc.
AMS Salt Industries, Inc.
Bay Resources, Inc.
SNG Acquisition Company, Inc.
SCHEDULE 3.05
TO CREDIT AGREEMENT
REAL PROPERTY
Leased Stores
Store Address Town State Zip
----- ------- ---- ----- ---
3 00000 XXXXXXXX XXX XXXX XX 00000
6 00000 XXXXXX XXXX XXXXXXXXX XX 00000
9 34900 XXXXXXXXX XXXXXXX XXX. XX 00000
12 00000 XXX XXXX XXXXXX XX 00000
14 44 BATCHEWANA XXXXXXX XX 00000
16 00000 XXXXX XXXXX XXXXXXXXXX XX 00000
19 0000 X. XXXX XXXXXXX XXXXX XX 00000
21 0000 XXXXXXXX XX. XXXXXXXXX XX 00000
22 00000 XXXX XXXX XXXXXXXX XX 00000
24 0000 X. XXXXXXX XXX. XXXXXXX XX 00000
31 0000 XXXXXX XX. XXXXXX XX 00000
35 0000 X. XXXX XXXXXXXXX XX 00000
37 000 XXXX XX. XXXXXXXXX XXXX. XX 00000
39 0000 XXXXXXXX XXXXXX XXXXX XX 00000
42 0000 XXXXXXXX XXX. X. XXX XXXX XX 00000
44 0000 XXXXXX XXXX 000 XXXXXXXXXX XX 00000
46 0000 XXXXXXX XX. XXXXXXXXXX XX 00000
53 0000 X. 000XX XXXXXXXX XX 00000
54 0000 X. XXXXXXXX XXXXXXXX XXXX XX 00000
55 0000 X. XXXXXXXX XXXXXXX XX 00000
57 000 X. XXXXX XX. XXX XXXXX XX 00000
59 0000 X. XXXXXX-XXXXXXXXX XXXXXX XX 00000
64 0000 X. 00XX XX. XXXXXXXXXXXX XX 00000
70 0000 XXX. XXXXXXX XXX. XXXX XXXXXX XX 00000
73 0000 XXXXXXX XXXX. XXXXXXXXX XX 00000
78 000 XXXX XXXXX XXXX XXXXXXXX XX 00000
89 000 X. XXXX XX. XXXXXXX XX 00000
95 00 XXXXXXX XXXXXX XXXXX XXXXX XX 00000
96 000 X. XXXXX XX. XXXXXXXXXXX XX 00000
97 00 XXXXXXXXXXX XXXXX XXXXXXXXXXX XX 00000
109 000 00XX XXX. XXXXXXX XX 00000
115 0000 XXXXX XXXX 00 XXXXXXX XX 00000
116 0000 00XX XX. XX. XX. XXXXXXXXXX XX 00000
121 0000 X. XXXX XXXXX XXXXX XX 00000
122 000X XXXXXXX 000 XXXXXXXXXXX XX 00000
123 0000 XXXXXXXXXXX XXX. XXXXXXXXXX XX 00000
124 0000 XXXXXXX XXXX XXXXXXXXX XX 00000
125 0000 XXX XXX XXXX XXXXXXXX XX 00000
127 0000 XXXXXX XXXX-XXX. 000 XXXXXXXXXX XX 00000
128 0000 XXXXXXXXX XXXX XXXXXXXXX XX 00000
129 0000 X. XXXXX XX. XXXXXX XX 00000
130 0000 XXXXXXX XXXXXXXX XXXXXXXX XX 00000
131 000 XXXXX XX. XXXXXX XX 00000
133 00000 XXX XXXXXXX XXXXXXX XX 00000
136 00000 XXX XXXXX XXXXX XX. XX. XXXXX XX 00000
137 000 XXXXXXX XXXXX XX. XXXXXXXXXX XX 00000
138 0000 X. XXXXXXXX XXXX. XXXXXXXX XX 00000
144 0000 XXXXXXXX XXX. XXXXXXXXXX XX 00000
145 0000 XXXXX XXXX XXXX XXXXXXX XX 00000
146 00000 X.X. XXXXXXX 00 X XXXX XXXXXX XX 00000
147 000 XXXXX XXXX 000 XXXXXXXX XX 00000
150 0000 XXXXXXX XXXXXXXXXXXX XX 00000
159 0000 XXXXXXXXXX XXXXX XXXXXXX XX 00000
162 000 XXXXX XXXX XXXXXXXXXX XX 00000
165 7235 N. KEYSTONE (431) XXXXXXXXXXXX XX 00000
173 0000 XXXXXXX XXXXXX XXXXXXXXX XX 00000
174 00000 XXXXXXXXX XXXXX XXXXXXXXXX XX 00000
176 000 XXXXXX XXX. X. XXXXXX XX 00000
177 0000 XXXX XXXXXX XX. XXXXXXXXXX XX 00000
180 000 XXXXXXXX XXXX XXXXXXXX XXX. XX 00000
182 0000 XXXXXXXXXX XX. XXXXX XX 00000
183 8901 PAGE XXXXXXXX XX 00000
184 00000 X. XXXXX XXXX XXXXXX XX 00000
185 00 X. XXXXXX XX. XXXXXXXXXX XX 00000
186 0000X X. XXXXXXX XXXXXXXXXX XX 00000
187 0000 XXXXXXXXX XXXXX XXX. XXXXXXXXXXXXXX XX 00000
192 0000 X. XXXXX XXXX. XXXXXXXXX XX 00000
195 0000 X. XXXXXXXX XXXXX XXXX XXXX XXXXX XX 00000
196 0000 XXXXXX XXXXXXXXXXX XX 00000
198 0000 XXXXXXXXX XX. XXXXXX XX 00000
200 0000 XXXXXX XX. XXXXXXXX XX 00000
000 XXXXXX & XXXXXXXXXX XXX.
XXXXXXXXXX XXXX XXXXXXX XX 00000
207 000 XXXXXXX XXXXX XXXXXXX XX 00000
212 0000 XXXXXXX XXXXXX X.X., XXXX XXX XX 00000
UNIT 27
215 0000 XXXXXXXXX XX. XXXXXXXXX XX 00000
216 0000 XXXXX 000 XXXXX XXXXXX XX 00000
221 000 X. XXXX XXXXX XX. XXXXXXXXXXXX XX 00000
225 0000 XXXXXXXXXXX XXXXXXXXX XX 00000
228 160 N. GULPH XXXX XX XXXXXXX
XXXXX XXXX XX XXXXXXX XX 00000
000 X. XXXXXXXXX XXX & XXX XX. XXXXXXXX XX 00000
230 0000 XXXXXXXXX XXXX XXXXXXX XXXX. XX 00000
231 000 XXXXXXXXXX XXXX XXXXXXXXX XX 00000
232 0000 XXXXXXXXX XXXX. XXXXXXXXXXXX XX 00000
000 XXXXX 00 & XXXXXX XX. XXXXXX XXXX XX 00000
235 000 XXXXXXX XXXXXXX XXXXXXXX XXXXX XX 00000
236 000 XXXXX XXXX XXXX XXXXXX XX 00000
237 000 XXXXX XXXX XXXXXXX XX 00000
238 00 XXXXX 00 XXXX XXXXXXX XX 00000
241 0000 XXXX XXXXXX XX. XXXXXXXXX XX 00000
242 0000 XXXXX XXXXXXX XXXXXXXXX XX 00000
243 00000 XXXX XXXX XXXXXXX XX 00000
246 00 XXXX XXXX XXXXXX XXXXXXX XX 00000
248 0000 XXXXXX XXXX XX. XXXXXXX XX 00000
249 000 XXXXXXXXXXX XXX. XXXXXXX XX 00000
250 0000 XXXXXXXX XX. X. #000 XXXXXXXX XX 00000
251 0000 XXXXXXXXXX XXXX. XXXXXXXXXXX XX 00000
252 0000 XXX XXXXXXX XXXX. XXXXXXXXX XX 00000
253 0000 XXXXXXXXX XX. XXXXXX XX 00000
254 0000 X. XXXXXX XXX. XXXXXX
XXX XXXXX XXXXXXXX XX 00000
255 00000 XXXXXXXXX XX. XXXX XXXX XX 00000
256 000 XXXXXXXXXXXXX XX. XXXXXXXX XXXXXX XX 00000
260 0000 XXXXXXXX XXXX XXXX XXXXXXXXXX XX 00000
261 00000 X.X. 00 XXXXX XXXXXX XX 00000
262 0000 000XX XX. XXXX XXXXX XXXXXX XX 00000
264 00 XXXXXX XXXXXX XXXXXXXXXX XX 00000
268 000 XXXX XXXXXX XXXXXX XX 00000
269 00 XXXXXXXX XXXX XXXXXXXXXXXX XX 00000
270 0000 XXXXXX XXXXXXXX XXXXXXXXX XX 00000
273 000 X. XXXX XXXXXX XXXXXXXXX XX 00000
284 0000 XXXXXXXXXX XXX. XXXXXXX XX 00000
289 0000 XXXXXX XXXXX
(XXXXXXX XXXXX XXXXXXXX XXXXXXXX XX 00000
CTR.)
290 0000 XXXXXXX XXX. XXXXXXX XX 00000
291 0000 XXXXXX XXXXXXX XXXX XXXXXXXXXX XX 00000
299 00000 XXXXXXXX XXXXXX XXXXXXXXXX XX 00000
602 0000 XXXXXXX XXXX XXXXXX XXXXXXX XX 00000
604 000 XXXXX 0 X. (XXXXXXXXX, XXXXXXXXXXX XX 00000
NJ)
606 0000 XXXXXXX XXXXXXXX XXXX XXXXXXXXX XX 00000
607 0000 XXXXXX XXXXXXX XXXX XXXXXXXXXX XX 00000
608 00 XXXXXXXXXXX XXXX XXXX XXXXXXXXX XX 00000
611 0000 XXXXXXXXX XXXXXXXX XXXXXXXXX XX 00000
612 000 XXXXXXXXX XXXXXX XXXXXXXXX XX 00000
615 000 X. XXXXXXX XXX. XXXXXXXXX XX 00000
616 000 XXXXXXX XXX. XXX XXXXX XX 00000
617 XX. 00X & XXXXX XXXXX XX.
XXXXX XXXXX XXXXX XXXXX XX 00000
620 000 XXXXXXX XXXX XXXXXXXX XX 00000
621 0000 XXXXX XXXXXXXX XXXXXX XX 00000
000 XXX. 0 (XXXXXXXXXXX XXXX) XXXXXXX XXXX XX 00000
644 0000 XXXXX 000 XXXXXXXX XX 00000
646 00 XXXXXXX XXXXX XXXXXXX XX 00000
647 000 XXXXX 000 XXXXXXX XX 00000
751 00000 XXX XXXX XXXXXX XX 00000
752 00000 XXXXXX XX. XXXXXXXX XX 00000
8 27650 XXXXXXXXXXX XXXXXXX XX 00000
10 00000 XXXXXX XX. XXXXX XXXXXX XX 00000
17 0000 XXXXXXXXX XXX XXXXX XX 00000
36 0000 X. XXXXXXXX XXXXXX XX 00000
38 000 XXXX XXXX XXXXXXXXXX XX 00000
40 000 X. XXXXX XXX. XXXXX XXXXXX XX 00000
47 00000 XXXXXXXX XXX. XXXXXXXXXX XX 00000
48 00 XXXXX XXXXX XXXXXXXXX XXXXX XX 00000
50 000 XXXX XXXX XX. XXXXXXXXX XX 00000
51 000 X. XXXXXXXXX XXXXXXX XX 00000
52 0000 XXXXX XXXX XXXX XXXXXXX XXXX XX 00000
56 00000 XXXXX XX. XXXXXXXXX XX 00000
62 0000 X. 00XX XX. XXXXXXXXX XX 00000
63 0000 X.X. 00 XXXXX XXXXXXXXXXXX XX 00000
66 0000 X. XXXXXX XX. XXXX XX. XXXX XX 00000
67 0000 X. 000XX XX. XXXXXX XXXX XX 00000
68 0000 X. 00XX XX. XXXXXXXXX XX 00000
69 0000 XXXXX XXXXXXXX XX. XXXXXXXX XX 00000
71 0000 XXXXXXXX XXXX XXXXXXXXX XX 00000
72 0000 XXXXXXXXX XXX. XXXX XXXXXXXXX XX 00000
74 0000 00 XXXX XXXX XXXXXXXX XXXXXXX XX 00000
75 0000 X. XXXXXXXXXX XXXXXXXXXXXX XX 00000
76 0000 XXXXXXXXX XXXX XXXXXXXX XX 00000
77 000 X. XXXXXX XXXXX XXXXXX XX 00000
79 0000 XXXXXXXXX XX. XXXXXXXXXXXX XX 00000
82 000 XXXXXXX XXX. XXXXXXX XXXX XX 00000
83 0000 00XX XX. XXXXXXXXXX XX 00000
91 0000 XXXXX XXXX. X. XXXXXX XXXXX XX 00000
108 0000 X. 00XX XX. X. XXXXXXXXX XX 00000
114 0000 XXXXXX XXXX XXX XXXX XXXXXX XX 00000
152 00 X. XXXXXXX XXX. XXXXXXXXX XX 00000
157 0000 XXX XXXXXXXXXX XXXX XXXXXXX XX 00000
175 0000 X. XXXXXX XX. X XXXXXXXXX XX 00000
190 0000 XXXXX XX. #0 XXXXXXXX XX 00000
201 0000 XXXXXXXX XX. XXXXXXXX XX 00000
204 0000 XXXXX XX. #00 XXXXXXXXX XX 00000
217 0000X X. XXXXXXXXX XXX. XXXXXXX XX 00000
227 0000 XXXXXXXXXX XXXX XXXXXXXXXX XX 00000
OFFICES:
0000 XXXX XXXX XXXX XXXX XXXX XX 00000
XXX XXXXXXX XXXXX XXXXXXXX XX 00000
6399, 6400 & 0000 XXXX XXXXXXX XX 00000
NEVADA
WAREHOUSES:
0000 XXXXXXXXXX XXXX XXXXXXXXXX XX 00000
0000 XXXXX XXXXX XXXX #0 XXXX XX 00000
Owned Stores
32 0000 X. XXXXXX-XXXXXXXXXX XXXXXXXX XX 00000
33 0000 XXXXXXXXXX X.X. XXXXX XXXXXX XX 00000
80 X-0000 XXXXXX XX. XXXXX XX 00000
142 000 XXXXXXXX XXXXX XXXXXXXXXX XX 00000
205 0000 XXXXX XXX. XXXXXXXXXX XX 00000
208 0000 XXXXX XXXX XXXXXXXXXX XX 00000
610 000 XXXXX XXXXX XXXX XXXXX XXXXXX XX 00000
601 0000 X. XXXXXXX XXXXXXXX XXXXXXXXXX XX 00000
84 00000 XXXX XXXX XXXXXX XXX. XX 00000
87 0000 00XX XX. XXXXXXXXX XXXX XX 00000
88 000 X. XXXXX XXX XX. XXXXXXXX XX 00000
90 0000 X. XXXXXXX XXX. XXXXXXXXXXXX XX 00000
92 00000 XXXX XXXX XXXXXXX XXXXXXXX XX
98 0000 XXXXX XX. XX. XXXXXXX XX 00000
103 0000 XXXX XXXXXX XXXX. XXXX XXXXXX XX 00000
107 1520 AURORA XXXXXXXXXX XX 00000
156 0000 X. XXXXXXXX XX. XXXXXXXX XXXX XX 00000
214 0000 XXXXX XXXXXXXXX XXXXXXXX XX 00000
219 0000 XXXXXX XXXX XXXXXXXX XX 00000
267 0000 X. XXXXXXX XX. XXXXX XXXX XX 00000
631 000 XXXX XXXX XXXXXX XXXXXXXX XX 00000
632 000 XXXXXXXXXXXX XX. XXXXXX XX 00000
633 0000 XXXXX XXXXXX XXXXXXXXXXX XX 00000
636 000 XXXXX XXXXX XXXX XXXXXXXXXX XX 00000
000 XXX. #0 X. XXXXXXX XXXX XXXXXXXX XX 00000
643 000 XXXXXX XXXX XXXX XXXXXXXX XX 00000
34 0000 XXXXX XXXXX XXXXXX XX 00000
100 0000 XXXXXX XXXXXX XX 00000
65 0000 XXXXXXX #00 XXXXXXXXX XX 00000
99 0000 XXXXXXXX XXXXXXXXXX XX 00000
101 0000 XXXXXXXX XXXXXX XX. XXXXXXXX XX 00000
106 0000 X. XXXXXXXXX XXXXXXXXXXXX XX 00000
135 00000 XX. XXXXXXX XXXX XX. XXXXXXXXX XX 00000
139 0000 XXXXX X. XXXXXX XX. XXXXXXX XX 00000
140 000 X. XXXX XXXX XXXX XXXXXX XX 00000
163 0000 X. X.X. XXXXXXX XXXXXXX XXXX XX 00000
167 0000 XXXXXX XXXX XX. XXXXXXXXXX XX 00000
168 0000 XXXXXXX XX. XXXXXX XXXXX XX 00000
244 0000 XXXX XXXX XXXX XXXXXXX XX 00000
245 0000 XXXXXXXX XXXXX XXXXX XX 00000
265 4630 HWY 00 X XXXXX XX. XX. XXXXXXX XX 00000
277 0000 X. XXXXXXXXX XXXXXXXXXX XXX. XX 00000
623 000 XXX XXXX XXXX XXXXXX XXXXXX XX 00000
626 000 XXXXX XXXXXXXXX XXXXXXXXX XX 00000
628 000 XXXXXXX 000 XXXXX XXXXXXXXXXX XX 00000
25 0000 00XX XX. X.X. XXXXX XXXXXX XX 00000
5 00000 XXXXXXXX XXXXXX XXXXXXXX XXXX. XX 00000
15 0000 XXX XXXX XXXXXXX XXXX XX 00000
23 0000 X. XXXXX XX. XXXXXXX XX 00000
26 0000 X. XXXXX XXXXXXXX XX 00000
27 0000 X. XXXXX XX. XXXXXXXX XX 00000
28 0000 X. XXXXXXX XX. XXXXX XX 00000
29 0000 XXXXXXXX XXXX. XX. XXXXX XX 00000
30 00000 XXX XXXX XXXXX XX 00000
45 0000 XXXX XXX. X. XXXXXXXXXXX XX 00000
58 0000 XXXXXXX XXXX XXXXXXXX XX 00000
81 0000 00XX XX. X.X. XXXXXXXXXX XX 00000
85 000 XXXX XXXXX XXXXXXX XX 00000
86 8032 XXX-18 BURLINGTON PK. XXXXXXXX XX 00000
93 0000 X. XXXXXXXXXXXX XXXXXXX XX 00000
94 0000 XXXXXXXXX XXXXXX XX 00000
102 10901 BUSTLETON XXXXXXXXXXXX XX 00000
104 00000 XXXXXXXXXXXX XX. XXXXXX XXXXX XX 00000
105 000 X. XXXXXXX XXX. XXXXX XX 00000
110 0000 X. XXX XXXXX XXXXXXXXXX XX 00000
111 0000 00XX XX. X. XX. XXXXXXXXXX XX 00000
112 000 00XX XXXXXX XXXXXX XX 00000
113 0000 X.X. 00 XXX XXXX XXXXXX XX 00000
117 0000 X. XXXXXX XXXXXX XXXXX XX 00000
118 0000 XXXXXXX XXXX XXXXX XX 00000
119 00000 XXXXXXXXXX XX. XXXXX XX 00000
120 00000 XXXXXXXXX XXXX. XXXXX XX 00000
134 00000 XXXXXXXXXX XXXX XXXXXXX XX 00000
141 0000 XXXXX XXXXX XX. XXXXXXX XXXX XX 00000
151 0000 00 XXXX XXXX XXXXXX XX 00000
164 0000 X. XXXXXX XXXX XXX XXXX XX 00000
178 0000 XXXXXXXXXXXXX XX. XXXXXXX XX 00000
179 0000 XXXXXXXXX XX. XXXXXXXXX XX 00000
181 0000 XXXX XXX XXXXX XXXXXX XXXXXX XX 00000
188 000 X. XXXXXXXXX XXXXXXX XX. XXXX XX 00000
189 0000 X. XXXXX XXXXXX XX 00000
199 0000 XXXXX XXXXXX XXXX XX. XXXXXXXXXXX XX 00000
202 0000 XXXXXXXX XXX. XXXXXXXXXX XX 00000
213 0000 XXXXXX XX. XXXXXXXXX XX 00000
240 0000 XXX XXXX XXXX XXXXX XXXXXXX XX 00000
259 0000 X. XXXXX XX. XXXXXXXXX XX 00000
266 00000 XXXXXXXXXX XX. XXXXXXXXXX XX 00000
272 00 X. XXXX XXXXXX XXXXXXXXX XX 00000
286 0000 XXXXXXX 00 XXXX XXX. XXX XXXX XX 00000
605 000 XXXXXXXX XXXX X. XXXX XXXXXX XX 00000
622 000 XXXXX XXXXXX XXXXXXX XX 00000
624 000 XXXXX 00 XXXXXX XX 00000
625 0000 XXXXXXX 00 XXXXXX XX 00000
638 0000 XXXXX 0 XXXXX XXXXXX XX 00000
645 000 XXXXXXXX XX. (XXX. 00) XXXXXXX XX 00000
648 00 XXXXXXXXXX XXXXX XXXXXXXX XX 00000
649 000 XXXXXXX XX. (XXX. 9) XXXXXX XX 00000
652 000 XXXXXX XXXX (XXX. 00) XXXXXXXXXXX XX 00000
Closed Stores
149 1460 TUSKAWILLA XXXXXXXXXXX XX 00000
166 0000 XXXX XXXXX XXXXXXX XXXX XXXXXXXXX XXXXX XX 00000
BLVD.
194 00000 XXXXX XX #0 XXXX XX. XXXXX XX 00000
642 00 XXXXXXXXXX XXXXXX XXXXX XXXXX XX 00000
SCHEDULE 3.06
TO CREDIT AGREEMENT
DISCLOSED MATTERS
Litigation
----------
Principal Financial Securities, Inc. & Loeb Partners Corp. v. Sunbelt Nursery
Group, Inc., General Host Corp., Lyndale Garden Center, Inc. and Xxxxxxx
Xxxxx, District Court of Tarrant County, Texas.
This case involves claims against General Host Corporation, Sunbelt,
the purchaser of General Host Corporation's interest in Sunbelt and other
defendants for commissions allegedly due the plaintiffs, a financial advisor,
in connection with financing the plaintiffs were engaged to arrange for
Sunbelt.
Environmental Matters
---------------------
A. Borrower (Frank's Nursery & Crafts, Inc.)
-----------------------------------------
1. Borrower currently owns approximately 100 facilities and
leases approximately 170 facilities. Environmental review of these
properties revealed issues involving potential liabilities with respect to
underground storage tank investigation and remediation, asbestos
contamination, and other miscellaneous matters, such as operations that may
require implementation of management plans.
2. The headquarters facilities in Detroit, Michigan are subject
to continuing remediation of environmental contamination.
3. In 1994, the New York State Department of Environmental
Conservation imposed a fine against Borrower for $100,000.
4. Borrower formerly owned a facility in Blue Point, Long
Island that operated a nursery business.
B. Holdings (General Host Corporation)
-----------------------------------
Holdings has a history of dispositions of various business, including
without limitation the following assets, former assets, or operations of
which may result in Environmental Liabilities:
1. American Salt Co. In 1988, Holdings sold the American Salt Co.,
which operated salt mine facilities in Xxxxx, Kansas. (1) There was a
judgment against Holdings in the amount of approximately $1.1 million for
The inclusion of an item on this Schedule shall not be deemed to be
an admission that such item is expected to have a material and
adverse effect on Holdings or its Subsidiaries.
salt contamination which Holdings paid on December 5, 1997. (2) A lawsuit
was recently filed against Holdings by the same plaintiffs, who had
previously won a damage award against Holdings regarding alleged saltwater
contamination and damages resulting therefrom.
2. Li'l General Stores. In 1984, Holdings sold its Li'l General
Stores facilities. Prior to that date, Holdings owned or leased
approximately 480 Li'l General convenience stores throughout the United
States. Leaseholds for 115 of these leased facilities were rejected by the
buyer, Circle K Corporation, in bankruptcy. To date, to the Company's
knowledge 21 of these facilities have been the subject of environmental
investigation or remediation.
3. Allied Leather Corporation. Holdings disposed of Allied Leather
Corporation in 1978. (1) This business is allegedly the source of
contamination at four offsite locations: the Solvents Recovery Service of
New England federal Superfund site in Connecticut, the Old Southington
Landfill federal Superfund site in Connecticut, the Xxxxx landfill state
Superfund site in New Jersey, and the Xxxxxx landfill federal Superfund site
in New Jersey. (2) Holdings is also aware that properties at which Allied
Leather Corporation operated or reportedly disposed of certain wastes in the
areas of Pennacook, Boscawen, and Concord, New Hampshire, and Waterboro,
Maine, are being or have been investigated by environmental authorities for
possible contamination apparently relating to the disposal of hides and
tanning wastes. There may be substances on those properties which may
require further investigation and/or remediation. To the knowledge of
Holdings, no claims have been asserted against Holdings at these sites.
4. Other Dispositions. In addition to those noted above, Holdings
has disposed of several other businesses, including the following:
-- Sunbelt Nursery Group
-- Xxxxxxxx'x Nursery, Inc.
-- Codo, Inc.
-- The All American Gourmet Company
-- Milk Specialties Company
-- Hot Xxx Companies
-- Van xx Xxxx'x Division
-- Cudahy Company
-- Yellowstone Park Company
C. Other Offsite Disposal
1. Holdings has been named as a potentially responsible party
at the Tulalip Landfill in the state of Washington.
2. In addition, as discussed above with respect to the Allied
Leather Corporation disposition, Holdings has been named as a potentially
responsible party at the following Superfund sites: (1) the Solvents
Recovery Service of New England federal Superfund site in Connecticut, (2)
the old Southington Landfill federal Superfund site in Connecticut, (3) the
Xxxxx landfill state Superfund site in New Jersey, and (4) the Xxxxxx
landfill federal Superfund site in New Jersey.
SCHEDULE 3.12
TO CREDIT AGREEMENT
SUBSIDIARIES
Direct or Indirect
Name Ownership Interest of Holdings
---- ------------------------------
Frank's Nursery & Crafts, Inc. 100%
Nursery Distributors, Inc. 100%
General Host Holding Corp. 100%
AMS Industries, Inc. 100%
AMS Salt Industries, Inc. 100%
Bay Resources, Inc. 100%
SNG Acquisition Company, Inc. 100%
Frank's Nursery & Crafts, Inc. is the only subsidiary which is a
Subsidiary Loan Party.
SCHEDULE 3.16(d)
TO CREDIT AGREEMENT
MORTGAGE FILING OFFICES
Store Town, State Filing Office
----- ----------- -------------
5 Dearborn Heights, MI Xxxxx County Register of Deeds
15 Lincoln Park, MI Xxxxx County Register of Deeds
23 Saginaw, MI Saginaw County Register of Deeds
26 Columbus, OH Franklin County Recorder
27 Columbus, OH Franklin County Recorder
28 Ft. Xxxxx, IN Xxxxx County Clerk
29 Ft. Xxxxx, IN Xxxxx County Clerk
30 Utica, MI Macomb County Register of Deeds
45 Bloomington, MN Hennepin County Recorder
58 Columbus, OH Franklin County Recorder
81 Grandville, MI Kent County Register of Deeds
85 Portage, MI Kalamazoo County Register of Deeds
86 Florence, KY Xxxxx County Clerk
93 Lansing, MI Xxxxxx County Register of Deeds
94 Toledo, OH Xxxxx County Recorder
000 Xxxxxxxxxxxx, XX Philadelphia County Recorder of
Deeds
000 Xxxxxx Xxxxx, XX Xxxxxxxxx Xxxxxx Recorder
105 Exton, PA Xxxxxxx County Recorder of Deeds
110 Clearwater, FL Pinellas County Clerk of the
Circuit Court
111 St. Petersburg, FL Pinellas County Clerk of the
Circuit Court
Store Town, State Filing Office
----- ----------- -------------
112 Blaine, MN Anoka County Clerk
113 New Port Xxxxxx, FL Pasco County Clerk of the Circuit
Court
117 Tampa, FL Hillsborough County Clerk of the
Circuit Court
118 Flint, MI Genesee County Register of Deeds
119 Largo, FL Pinellas County Clerk of the
Circuit Court
120 Tampa, FL Hillsborough County Clerk of the
Circuit Court
134 Ballwin, MO St. Louis County Recorder od Deeds
141 Bedford, IL Xxxx County Recorder
000 Xxxxxx, XX Macomb County Register of Deeds
164 Bay City, MI Bay County Register of Deeds
178 Saginaw, MI Saginaw County Register of Deeds
179 Northwood, OH Wood County Recorder
000 Xxxxxx Xxxxxx, XX Xxxxxxxx Xxxxxx Register of Deeds
188 St. Xxxx, MN Xxxxxx County Clerk
189 Toledo, OH Xxxxx County Recorder
000 Xxxxxxxxxxx, XX Xxxxx County Recorder
000 Xxxxxxxxxx, XX Xxxxxxxx Xxxxxx Recorder
000 Xxxxxxxxx, XX Manatee County Clerk of the Circuit
Court
240 Xxxxx Heights, OH Xxxxxxxxxx County Recorder
000 Xxxxxxxx, XX Xx. Xxxxxx Xxxxxx Clerk
266 Cincinnati, OH Xxxxxxxx County Recorder
000 Xxxxxxxxx, XX Hampden County Register of Deeds
Store Town, State Filing Office
----- ----------- -------------
286 Sea Girt, NJ Monmouth County Register of Deeds
000 X. Xxxx Xxxxxx, XX Monmouth County Register of Deeds
000 Xxxxxxx, XX Xxxxxxx Xxxx Clerk
624 Kenvil, NJ Xxxxxx County Register of Deeds
625 Hazlet, NJ Monmouth County Register of Deeds
638 Howell, NJ Monmouth County Register of Deeds
645 Taunton, MA Bristol County Register of Deeds
648 Brockton, MA Plymouth County Register of Deeds
649 Hadley, MA Hampshire County Register of Deeds
000 Xxxxxxxxxxx, XX Hampden County Register of Deeds
00 Xxxxxx Xxx., XX Xxxxx Xxxxxx Register of Deeds
00 Xxxxxxxxx Xxxx, XX Xxxx County Recorder
88 Waukegan, IL Lake County Recorder
90 Merrillville, IN Lake County Recorder
92(401) Clinton Twp., MI Macomb County Register of Deeds
00 Xx. Xxxxxxx, XX Xxxx Xxxxxx Recorder
000 Xxxx Xxxxxx, XX Anoka County Clerk
107 Naperville, IL Du Page County Recorder
000 Xxxxxxxx Xxxx, XX Xx Xxxxx Xxxxxx Recorder
000 Xxxxxxxx, XX Xxxxxx County Recorder
219 Columbus, IN Xxxxxxxxxxx County Recorder
000 Xxxxx Xxxx, XX Xx. Xxxxxx Xxxxxx Recorder
Store Town, State Filing Office
----- ----------- -------------
000 Xxxxx Xxxxxx, XX Westchester County Clerk
000 Xxxxxx, XX Xxxxxx County Register of Deeds
616 Bay Shore, NY Suffolk County Clerk
SCHEDULE 6.01
TO CREDIT AGREEMENT
EXISTING INDEBTEDNESS
1. Indebtedness set forth on Schedules 1.01(b) and 1.01(c).
2. The 11-1/2% Senior Notes due 2002 of Holdings issued under the
indenture dated as of February 28, 1992 by and among Holdings, as
issuer, the guarantors party thereto and Bankers Trust Company, as
Trustee.
3. The 8% Convertible Subordinated Notes due 2002 of Holdings issued
under the indenture dated as of February 28, 1992, by and between
Holdings, as issuer, and United States Trust Company of New York, as
trustee.
4. Guarantees by General Host of obligations of Frank's Nursery &
Crafts, Inc. set forth below on Schedule 1.01(b).
5. The intercompany indebtedness set forth below.
INTERCOMPANY ACCOUNTS
Payor Payee Principal Amount
----- ----- ----------------
General Host Corporation General Host Holding Corp. $123,039,680
General Host Corporation AMS Industries, Inc. $119,737,169
General Host Corporation SNG Acquisition Company, Inc. $ 5,491,427
Frank's Nursery & Crafts, Inc. General Host Corporation $221,262,607*
* To be contributed to the capital of Frank's Nursery & Crafts, Inc. at
closing after partial repayment.
SCHEDULE 6.02
TO CREDIT AGREEMENT
EXISTING LIENS
1. Liens set forth on Schedule 1.01(b) or arising out of the Capital
Leases set forth on Schedule 1.01(c).
2. Liens set forth on Annex I to this Schedule.
SCHEDULE 6.04
TO CREDIT AGREEMENT
INVESTMENTS
1. The intercompany indebtedness set forth on Schedule 6.01.
2. Milk Specialties Company $1,066,670 principal amount 15% Subordinated
Note due February 1, 1999, payable to General Host Corporation.
3. Investments in the capital stock of Holdings and Subsidiaries set
forth on Schedule 3.12.
4. The following loans owed to Frank's Nursery & Crafts, Inc. and
General Host Corporation outstanding as of the closing date:
Principal
Name Amount Maturity
---- --------- --------
C. Xxxxxxxx Xxxxx $123,650.00 30 days after termination as
director or upon sale of the
shares purchased with loan
proceeds
Xxxxxx X. Xxxxxx $1,231,341.00 One year following his
termination
Xxxxx X. Xxx $25,067.77 Upon sale of the shares
purchased with loan proceeds
Xxxxxx X. Xxxxx $4,215.00 Upon sale of the shares
purchased with loan proceeds
Xxxxx X. Xxxxxx $4,412.00 Upon sale of the shares
purchased with loan proceeds
Xxxxxx X. Xxxxxxx $9,582.50 Upon sale of the shares
purchased with loan proceeds
Xxxxx X. Xxxxxx, III $ 59,822.90 6/2/99
SCHEDULE 6.11
TO CREDIT AGREEMENT
EXISTING RESTRICTIONS
1. Restrictions on the creation, incurrence or existence of Liens
contained in the Existing Mortgages set forth on Schedule 1.01(b).
