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EXHIBIT 99.3
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AMENDED AND RESTATED
MASTER COLLATERAL AGREEMENT
among
SERVICE MERCHANDISE COMPANY, INC.
THE SUBSIDIARIES OF SERVICE MERCHANDISE COMPANY, INC. PARTY
HERETO
and
CITICORP USA, INC.,
as Administrative Agent
Dated as of January 21, 1999
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS...................................................... 2
1.1 Defined Terms.................................................... 2
1.2 Other Definitional Provisions.................................... 12
SECTION 2. REMEDIAL PROVISIONS.............................................. 12
2.1 Notice of Default; Notice of Acceleration........................ 12
2.2 General Authority of the Administrative Agent over the
Collateral....................................................... 12
2.3 Right to Initiate Judicial Proceedings........................... 13
2.4 Right to Appoint a Receiver...................................... 13
2.5 Exercise of Powers; Instructions of Required Secured Parties..... 14
2.6 Remedies Not Exclusive........................................... 14
2.7 Waiver and Estoppel.............................................. 15
2.8 Limitation on Administrative Agent's Duty in Respect of
Collateral....................................................... 16
2.9 Limitation by Law; Limitation by Contract........................ 16
2.10 Rights of Secured Parties under Secured Instruments.............. 17
2.11 Subordination of Intercompany Obligations........................ 17
2.12 Certain Provisions In Existing Mortgages......................... 18
2.13 Overdrafts....................................................... 22
SECTION 3. CASH DOMINION SYSTEM; COLLATERAL ACCOUNTS;
DISTRIBUTIONS........................................................... 22
3.1 Cash Dominion System............................................. 22
3.2 The Collateral Account........................................... 23
3.3 Control of Collateral Account.................................... 24
3.4 Investment of Funds Deposited in Collateral Account.............. 24
3.5 Application of Moneys............................................ 24
3.6 Amounts Held for Contingent Secured Obligations.................. 26
3.7 Administrative Agent's Calculations.............................. 26
3.8 Pro Rata Sharing................................................. 27
SECTION 4. AGREEMENTS WITH THE ADMINISTRATIVE AGENT......................... 27
4.1 Information as to Secured Parties and Administrative Agent....... 27
4.2 Stamp and Other Similar Taxes.................................... 27
4.3 Filing Fees, Excise Taxes, Etc................................... 27
4.4 Indemnification.................................................. 28
4.5 Further Assurances............................................... 28
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SECTION 5. POSSESSION AND USE OF COLLATERAL; PARTIAL RELEASES............... 29
5.1 Use Prior to Notice of Acceleration.............................. 29
5.2 Releases......................................................... 29
5.3 Insurance and Condemnation Proceeds; Liquidating Dividends....... 30
SECTION 6. THE ADMINISTRATIVE AGENT......................................... 31
6.1 Exculpatory Provisions........................................... 31
6.2 Delegation of Duties............................................. 32
6.3 Reliance by Administrative Agent................................. 32
6.4 Limitations on Duties of the Administrative Agent................ 34
6.5 Resignation and Removal of the Administrative Agent.............. 34
6.6 Merger of the Administrative Agent............................... 34
6.7 Co-Collateral Agent; Separate Agents............................. 34
6.8 Treatment of Payee or Indorsee by Administrative Agent;
Representatives of Secured Parties............................... 36
SECTION 7. MISCELLANEOUS.....................................................36
7.1 Notices.......................................................... 36
7.2 No Waivers....................................................... 37
7.3 Amendments, Supplements and Waivers.............................. 37
7.4 Headings......................................................... 38
7.5 Severability..................................................... 38
7.6 Successors and Assigns........................................... 38
7.7 Currency Conversions............................................. 38
7.8 GOVERNING LAW.................................................... 38
7.9 Counterparts..................................................... 38
7.10 Termination...................................................... 38
7.11 New Obligors..................................................... 39
7.12 Inspection by Regulatory Agencies................................ 39
7.13 Submission to Jurisdiction; Waivers.............................. 39
7.14 WAIVERS OF JURY TRIAL............................................ 40
7.15 Amendment and Restatement........................................ 40
Exhibits
A Form of Security Agreement
B Form of Mortgage
C Form of Securities Pledge Agreement
D Form of Assumption Agreement
E Form of Blocked Account Agreement
F Form of Lockbox Agreement
G Form of Custody and Control Agreement
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AMENDED AND RESTATED MASTER COLLATERAL AGREEMENT, dated as of
January 21, 1999, among SERVICE MERCHANDISE COMPANY, INC., a Tennessee
corporation (the "Borrower"), the subsidiaries of the Borrower which are listed
on the signature pages hereto under the heading "Initial Obligors" (together
with the Borrower, the "Initial Obligors"), the other subsidiaries of the
Borrower from time to time party hereto (the "New Obligors"), and CITICORP USA,
INC. ("Citicorp"), as Administrative Agent (as defined below).
W I T N E S S E T H:
WHEREAS, in connection with the Amended and Restated Credit
Agreement, dated as of September 10, 1997 (the "Existing Credit Agreement"),
among the Borrower, the financial institutions party thereto, The Chase
Manhattan Bank ("Chase"), as administrative agent and collateral agent for such
financial institutions (in such capacity, the "Collateral Agent"), and Citicorp,
as documentation agent thereunder, the Borrower, certain subsidiaries of the
Borrower and The Chase Manhattan Bank, as collateral agent, entered into the
Master Collateral Agreement, dated as of September 10, 1997 (the "Existing
Agreement"); and
WHEREAS, Citicorp has succeeded Chase as the Collateral Agent
under the Existing Credit Agreement; and
WHEREAS, in connection with the Second Amended and Restated
Credit Agreement, dated as of January 20, 1999, among the Borrower, the several
financial institutions and other entities from time to time party thereto (the
"Lenders"), Citicorp, as collateral and administrative agent for the Lenders (in
such capacity, the "Administrative Agent"), and BankBoston, N.A., as collateral
monitoring agent and documentation agent for the Lenders (as amended, modified,
supplemented, extended, renewed or refinanced from time to time, the "Credit
Agreement"), the Initial Obligors and the Administrative Agent desire to amend
and restate in its entirety the Existing Agreement, including the Security
Documents referred to therein; and
WHEREAS, it is the intent of the parties hereto that this
Agreement amend and restate in its entirety the Existing Agreement, that this
Agreement not constitute a novation and that from and after the date hereof, the
Existing Agreement be of no force or effect except as to evidence the incurrence
of each of the Obligors' obligations thereunder and the grant of Liens therein
or pursuant thereto; and
WHEREAS, it is a condition precedent to the effectiveness of
the Credit Agreement that the Initial Obligors and the Administrative Agent
shall have executed and delivered this Agreement;
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NOW, THEREFORE, the Obligors and the Administrative Agent
hereby agree that the Existing Agreement is hereby consolidated and amended and
restated in its entirety to read as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms
defined in the captions to this Agreement have the meanings set forth therein,
terms defined in the Credit Agreement and used herein (unless otherwise defined
herein) have the meanings assigned to such terms in the Credit Agreement, and
the following terms have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Accounts" means, with respect to any Obligor, all "accounts"
(as such term is defined in the Code) now owned or hereafter acquired
by such Obligor and all Instruments and Chattel Paper now owned or
hereafter acquired by such Obligor which evidence a right to payment
for goods sold or leased or for services rendered, whether or not such
right has been earned by performance.
"Administrative Agent" has the meaning assigned to such term
in the recitals to this Agreement.
"Agreement" means this Amended and Restated Master Collateral
Agreement, as the same may be amended, supplemented or otherwise
modified from time to time.
"Applicable Rate" has the meaning assigned to such term in
subsection 2.12(f).
"Average Available Revolving Amount" means, on any day, the
average daily Available Revolving Amount for the thirty day period
ended on such day.
"Bankruptcy Code" means title 11 of the United States Code, as
the same may be amended, supplemented or otherwise modified from time
to time.
"Bankruptcy Event" with respect to any Person means the
commencement of any case, proceeding or other action (a) under any
existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its
debts, or (b) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any
substantial part of its assets, or the making of a general assignment
for the benefit of its creditors.
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"Blocked Account Agreement" means any Blocked Account
Agreement (i) entered into among any Obligor, a Depositary Bank and the
Collateral Agent pursuant to the Existing Agreement, substantially in
the form of Exhibit E to the Existing Agreement, or (ii) entered into
among any Obligor, a Depositary Bank and the Administrative Agent
pursuant to subsection 3.1, substantially in the form of Exhibit E to
this Agreement, with such changes as may be agreed upon by the relevant
Obligor, the Administrative Agent and the relevant Depositary Bank, in
each case as the same may be amended, modified, supplemented, extended
or renewed from time to time.
"Cash Dominion Notice" means a notice delivered by the
Administrative Agent to the Borrower stating that a Cash Dominion
Trigger Event has occurred and/or directing that funds be transferred
to the account identified as follows:
Citicorp USA, Inc. For the account xx
XXX # 000000000 Xxxxxxxx XXX, Inc., as Administrative
000 Xxxx Xxxxxx Agent: Service Merchandise Company, Inc.
Xxx Xxxx, XX 00000 - Collateral Account
Account #: 4978-5586
or such other account as may be designated by the Administrative Agent.
"Cash Dominion System" has the meaning assigned to such term
in subsection 3.1(a).
"Cash Dominion Trigger Event" means the occurrence of the
Effective Date.
"Cash Equivalents" means (a) direct obligations of, or
obligations guaranteed by, the United States of America or any agency
thereof, (b) commercial paper issued in the United States of America
and rated at least A-1 or P-1 by at least one nationally recognized
rating organization, (c) certificates of deposit issued by or
eurodollar deposits made with any Lender, any affiliate of any Lender,
or any bank or trust company which has (or the parent of which has)
capital, surplus and undivided profits aggregating at least
$100,000,000 (or the equivalent amount in another currency), (d) loan
participations in respect of loans made in the United States by any
bank or trust company referred to in clause (c) above to borrowers
which have short-term ratings of at least A-1 or P-1 by at least one
nationally recognized rating organization, (e) drafts accepted by any
bank or trust company referred to in clause (c) above or any other
negotiable instrument guaranteed or endorsed with full recourse by any
such bank or trust company, (f) repurchase agreements with respect to
any of the foregoing types of securities described in clause (a), (b)
and (d) above, (g) investments in money market funds substantially all
of whose assets are comprised of securities of the types described in
clauses (a) through (f) above, (h) obligations the
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return with respect to which is excluded from gross income under
Section 103 of the Internal Revenue Code of 1986, as amended from time
to time (the "Tax Code") with a maturity of not more than six months or
with the right of the holder to put such obligations for purchase at
par upon not more than seven days' notice and which are rated A-l or
higher by S&P or rated P-1 or higher by Moody's, (i) (A) tax free money
market funds that invest solely in the securities described in clause
(h) above or (B) money market preferred municipal bond funds which have
a term of not more than seven days and which are rated at least AAA or
the equivalent thereof by S&P or at least Aaa or the equivalent thereof
by Moody's, and (j) any other securities reasonably acceptable to the
Administrative Agent which are rated A-1 or higher by S&P or rated P-1
or higher by Moody's or which are of an equivalent credit quality in
the reasonable judgment of the Administrative Agent, provided that (i)
all such obligations, commercial paper, certificates of deposit,
eurodollar deposits, loan participations, drafts, investments,
instruments, securities and repurchase agreements are denominated in
Dollars, (ii) each such obligation, commercial paper, certificate of
deposit, draft, investment, security and instrument (including those
subject to repurchase agreements) is evidenced by an instrument or a
security (each as defined in the Code) of which (and of any
confirmations related thereto) the Administrative Agent or its agents
promptly take possession unless such items are Permitted Book-Entry
Securities or, at the relevant Obligor's option, an Excepted Cash
Equivalent (as defined in Section 3(f) of the Securities Pledge
Agreement) or, in the case of eurodollar deposits or loan
participations, are held in the name of the Administrative Agent or any
agent therefor, and in the case of loan participations, are evidenced
by facsimile or other written confirmation, (iii) each such obligation,
certificate of deposit, draft, investment, security and instrument
(including those subject to repurchase agreements) matures within six
months after it is acquired by any Obligor and (iv) each item of such
commercial paper (including those subject to repurchase agreements)
matures within three months after it is acquired by any Obligor.
"Cash Proceeds" means all Proceeds of Collateral consisting of
cash, checks, credit card proceeds, money orders or commercial paper of
any kind whatsoever.
"Chattel Paper" means, with respect to any Obligor, all
"chattel paper" (as such term is defined in the Code) now owned or
hereafter acquired by such Obligor.
"Code" means the Uniform Commercial Code as in effect in the
State of New York from time to time.
"Collateral" means, collectively, the Pledged Stock, all other
Pledged Securities, the Mortgaged Property, the Mortgage Assignments,
all Security, all Proceeds of the foregoing and all other property in
which the Administrative Agent is granted a Lien from time to time
hereunder or under any Security Document, subject to the limitations
set forth in subsection 2.9.
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"Collateral Account" has the meaning assigned to such term in
subsection 3.2.
"Concentration Account" means the Collateral Account.
"Credit Agreement" has the meaning assigned to such term in
the recitals to this Agreement.
"Credit Agreement Obligations" means, at any time, the
collective reference to the unpaid principal of and interest on the
Loans and the Reimbursement Obligations and all other obligations and
liabilities of the Borrower to the Administrative Agent or the Lenders
(including interest accruing at the then applicable rate provided in
the Credit Agreement after the maturity of the Loans or Reimbursement
Obligations and interest accruing at the then applicable rate provided
in the Credit Agreement after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding),
whether direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter incurred, which may arise under, out of,
or in connection with, the Credit Agreement, the Letters of Credit, the
other Loan Documents or any other document made, delivered or given in
connection therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including all fees and disbursements of counsel to the
Administrative Agent or to the Lenders that are required to be paid by
the Borrower pursuant to the terms of the Credit Agreement or any other
Loan Document).
"Custody and Control Agreement" means (i) any Custody and
Control Agreement entered into among any Obligor, an Intermediary (as
therein defined) and the Collateral Agent pursuant to Section 9(e) of
the Existing Pledge Agreement or (ii) any Custody and Control Agreement
entered into among any Obligor, an Intermediary (as therein defined)
and the Administrative Agent pursuant to Section 9(e) of the Securities
Pledge Agreement, substantially in the form of Exhibit G to this
Agreement with such changes as may be agreed upon by the relevant
Obligor, the Administrative Agent and the Intermediary, in each case as
the same may be amended, modified, supplemented, extended or renewed
from time to time.
"Depositary Account" has the meaning assigned to such term in
subsection 3.1(a).
"Depositary Bank" has the meaning assigned to such term in
subsection 3.1(a).
"Derivative Agreements" means any foreign exchange contracts,
interest rate and currency swap agreements, floors, caps, collars,
swaptions and similar derivative
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contracts, in each case, between any Obligor and any Lender or any
Affiliate of any Lender.
"Distribution Date" means each date fixed by the
Administrative Agent for a distribution to the Secured Parties of funds
held in the Collateral Account.
"Documents" means, with respect to any Obligor, all
"documents" (as such term is defined in the Code) now or hereafter
acquired by such Obligor.
"Equipment" means, with respect to any Obligor, all equipment,
machinery, chattels, tools, dies, jigs, molds, parts, machine tools,
furniture, furnishings, fixtures and supplies, of every nature, now
owned or hereafter acquired by such Obligor, wherever located,
additions, accessories and improvements thereto and substitutions
therefor and all parts and equipment which may be attached to or which
are necessary for the operation and use of such personal property or
fixtures, whether or not the same shall be deemed to be affixed to real
property and in any event all "equipment" (as such term is defined in
the Code), but excluding Inventory.
"Existing Credit Agreement Mortgage" has the meaning assigned
to such term in subsection 2.12(a).
"Existing Pledge Agreement" has the meaning assigned to such
term in the Securities Pledge Agreement.
"General Intangibles" means, with respect to any Obligor, all
general intangibles of every nature, whether presently existing or
hereafter acquired or created by such Obligor, including all Records,
claims, choses in action, judgments, United States patents, United
States patent applications, United States trademarks, servicemarks,
logos and tradenames, along with the goodwill of the business connected
with the use of or symbolized by such trademarks, servicemarks, logos
and tradenames, interests in mortgages, deeds of trust and other
instruments encumbering real property, licensing agreements, royalty
payments, United States copyrights, insurance policies, tax refunds and
goodwill, and in any event all "general intangibles" (as such term is
defined in the Code) and all rights to receive payment of money which
rights are not Accounts and do not arise under Chattel Paper and are
not Instruments.
"Impositions" has the meaning assigned to such term in
subsection 2.12(f).
"Included Obligors" has the meaning assigned to such term in
subsection 7.10(b).
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"Initial Obligors" has the meaning assigned to such term in
the preamble to this Agreement.
"Instruments" means, with respect to any Obligor, any
"instruments" (as such term is defined in the Code) now owned or
hereafter acquired by such Obligor.
"Insurance Policies" means all rights of the Obligors in, to
and under insurance policies of every kind, now existing or hereafter
acquired, under which any Collateral is insured, provided that (i) any
such rights which constitute Proceeds shall be included in the meaning
of the term "Proceeds" and excluded from the meaning of the term
"Insurance Policies", and (ii) proceeds of such policies, whether or
not "Proceeds", shall be governed by and applied pursuant to subsection
5.3.
"Intercompany Debt" means, with respect to the Borrower, any
Indebtedness of the Borrower to any other Obligor, and with respect to
any Obligor other than the Borrower, any Indebtedness of such Obligor
to the Borrower or any other Obligor, including all amounts payable in
respect thereof whether in respect of principal, interest or otherwise.
"Inventory" means, with respect to any Obligor, goods now
owned or hereafter acquired by such Obligor held for sale or lease or
to be furnished under contracts of service or so leased or furnished,
and all raw materials, work in process or materials used or consumed in
a business, and in any event including all "inventory" (as such term is
defined in the Code) but excluding Equipment.
"Investment Property" means all "investment property" (as such
term is defined in the Code), including any security (as such term is
defined in the Code), whether certificated or uncertificated, any
security entitlement, any security account, any commodity contract and
any commodity account.
"Investment Securities" means all Instruments or "securities"
(as such term is defined in the Code) now owned or hereafter acquired
by any Obligor other than (a) Pledged Stock, (b) Capital Stock of any
Subsidiary that is not expressly required to be pledged pursuant the
Credit Agreement or the Securities Pledge Agreement, (c) Cash
Equivalents and (d) any note, debenture, bond or other instrument
evidencing any Indebtedness of the Borrower to any Subsidiary or of any
Subsidiary to the Borrower or any other Subsidiary that does not
constitute Intercompany Debt.
"Lenders" has the meaning assigned to such term in the
recitals to this Agreement.
"Lockbox Agreement" means any Lockbox Agreement (i) entered
into among any Obligor, a Depositary Bank and the Collateral Agent
pursuant to the Existing
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Agreement, in substantially the form of Exhibit F to the Existing
Agreement, or (ii) entered into among any Obligor, a Depositary Bank
and the Administrative Agent pursuant to subsection 3.1, in
substantially the form of Exhibit F to this Agreement, with such
changes as may be agreed upon by the relevant Obligor, the
Administrative Agent and the Depositary Bank, in each case as the same
may be amended, modified, supplemented, extended or renewed from time
to time.
"Moody's" means Xxxxx'x Investors Services, Inc.
"Mortgage" means each fee and ground leasehold mortgage, deed
of trust and any other similar document executed and delivered from
time to time to the Administrative Agent pursuant to this Agreement,
the Credit Agreement, the Existing Credit Agreement or any credit
agreement amended and restated by the Existing Credit Agreement, in
substantially the form of Exhibit B to this Agreement (other than in
the case of a Mortgage delivered in connection with any credit
agreement amended and restated by the Existing Credit Agreement), as
appropriate, or, if such Exhibit is not appropriate under applicable
law in the jurisdiction in which such real property is located, in such
other form as shall be reasonably satisfactory to the Administrative
Agent and the Borrower, as any of the same may be amended, modified,
supplemented, extended or renewed from time to time.
"Mortgage Assignment" means each assignment of mortgage
(including any mortgage held by an Obligor as an assignee of any other
person) executed and delivered from time to time to the Administrative
Agent pursuant to this Agreement or the Credit Agreement, in a form
reasonably satisfactory to the Administrative Agent and the Borrower
and as appropriate under applicable law in the jurisdiction in which
such real property is located, as any of the same may be amended,
modified, supplemented, extended or renewed from time to time.
"Mortgaged Property" means all property in which the
Administrative Agent is granted a lien or security interest pursuant to
the Mortgages.
"New Obligors" has the meaning assigned to such term in the
preamble to this Agreement.
"Notice of Acceleration" means a notice delivered by the
Administrative Agent to the Borrower stating that the Administrative
Agent has declared the Loans and other amounts owing under the Credit
Agreement to be due and payable and has terminated the Commitments
pursuant to Section 9 of the Credit Agreement and stating that such
notice is a "Notice of Acceleration" for the purposes of this
Agreement.
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"Notice of Default" means a notice delivered by the
Administrative Agent to the Borrower stating that an Event of Default
has occurred and is continuing and stating that such notice is a
"Notice of Default" for the purposes of this Agreement.
"Obligors" means the Initial Obligors and the New Obligors.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel satisfactory to the Administrative Agent, who may, but
need not, be an employee of any of the Obligors or counsel regularly
retained by the Borrower or the Administrative Agent.
"Original Mortgage" has the meaning assigned to such term in
subsection 2.12(a).
"Overdraft" means, at any time, the amount by which the
aggregate amount debited from any deposit, concentration, operating or
disbursement account maintained by the Borrower or any other Obligor
with any Lender or any Affiliate of any Lender, as a result of
processing of payment orders issued by the Borrower or such Obligor or
otherwise, exceeds the aggregate funds on deposit in such account.
"Permitted Book-Entry Securities" means securities which
conform in all respects to the requirements set forth in the definition
of Cash Equivalents except that such securities are not evidenced by an
instrument and the Administrative Agent or its agent does not have
possession thereof, provided that with respect to any security of which
the Administrative Agent or its agent does not have physical
possession, the Administrative Agent shall have acquired a perfected
first priority security interest therein or in the security entitlement
with respect thereto in the manner provided by the Code.
"Pledged Securities" has the meaning assigned to such term in
Section 2(a) of the Securities Pledge Agreement.
"Pledged Stock" has the meaning assigned to such term in
clause (i) of Section 2(a) of the Securities Pledge Agreement.
"Post-petition Inventory Proceeds" means, with respect to any
Obligor, Proceeds of Inventory of such Obligor arising after the
commencement of a case or proceeding under the Bankruptcy Code by or
against such Obligor.
"Proceeds" has the meaning assigned to such term in the Code.
"Records" means, with respect to any Obligor, all books,
correspondence, credit files, records and other documents of such
Obligor, whether presently existing
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or hereafter acquired or created, including all computer programs,
computer tapes, cards, and other papers and documents in its possession
or control or in the possession or control of any affiliate or computer
service bureau.
"Related General Intangibles" means, with respect to any
Obligor, all Related Patents and Trademarks and all inventions,
processes, production methods, proprietary information, know-how, trade
secrets and United States copyrights owned by such Obligor.
"Related Patents and Trademarks" means, with respect to any
Obligor, (a) all United States trademarks and service marks and all
applications and registrations in respect thereof (and any renewals
thereof) listed on Schedule A to the Security Agreement and any and all
future United States trademarks and service marks hereafter acquired by
such Obligor, together with the goodwill of the business connected with
the use of, and symbolized by, such trademarks and service marks, (b)
all United States patents and applications for United States letters
patent, owned by such Obligor, including those listed on Schedule B to
the Security Agreement, (c) all re-issues, divisions, continuations,
extensions and continuations-in-part of the items referred to in clause
(b) above, and (d) the right to xxx for past, present and future
infringements of the foregoing.
"Restricted Jurisdiction" means with respect to any Mortgage
or Mortgage Assignment, any jurisdiction outside the United States of
America in which the recordation of such Mortgage or Mortgage
Assignment would result in the payment of a material mortgage recording
tax.
"S&P" means Standard & Poor's Ratings Group.
"Secured Instruments" means at any time the Credit Agreement
and any other agreements or instruments evidencing Secured Obligations.
"Secured Obligations" means all of the following, in each case
whether now existing or hereafter incurred or created, except to the
extent otherwise expressly provided in the agreements or instruments
relating thereto:
(i) the Credit Agreement Obligations;
(ii) all sums payable by the Obligors under this
Agreement or any Security Document;
(iii) all sums payable by Obligors which are
Subsidiary Guarantors under the
Subsidiaries Guarantee;
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(iv) liabilities of any Obligor for Overdrafts;
(v) liabilities and obligations of any Obligor
under Derivative Agreements; and
(vi) obligations of any Obligor under subsections
4.10, 4.11, 10.7, 11.5 and 11.20 of the
Existing Credit Agreement.
When used in this Agreement with respect to any of the Secured
Obligations that constitute the obligations of any Obligor in respect
of a letter of credit issued on behalf of any Obligor or under any
Derivative Agreement or any similar obligation, the term "outstanding"
shall include, at any time, without duplication, the aggregate of the
principal, interest and other amounts then outstanding that are the
subject of such letter of credit or similar obligation that have not
then been reimbursed by the relevant Obligor and the amount then
available to be drawn or demanded under such letter of credit or
similar obligation (assuming compliance with all conditions to drawing)
or the termination liabilities, if any, of the Obligor under such
Derivative Agreement.
"Secured Parties" means at any time the holders of the Secured
Obligations.
"Securities Account" has the meaning assigned to such term in
Section 9(a) of the Securities Pledge Agreement.
"Securities Pledge Agreement" means the Second Amended and
Restated Securities Pledge Agreement, made by certain of the Obligors
in favor of the Administrative Agent, substantially in the form of
Exhibit C to this Agreement, as the same may be amended, modified,
supplemented, extended or renewed from time to time.
"Security" has the meaning assigned to such term in Section 2
of the Security Agreement.
"Security Agreement" means the Second Amended and Restated
Security Agreement and Collateral Assignment, made by the Obligors in
favor of the Administrative Agent, substantially in the form of Exhibit
A to this Agreement, as the same may be amended, modified,
supplemented, extended or renewed from time to time.
"Security Documents" means the collective reference to the
Security Agreement, the Securities Pledge Agreement, the Blocked
Account Agreements, the Custody and Control Agreements, the Lockbox
Agreements, the Mortgages, the Mortgage Assignments and each agreement
entered into pursuant to subsection 7.3(b).
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1.2 Other Definitional Provisions. The words "hereof",
"herein" and "hereunder" and words of similar import when used in this Agreement
refer to this Agreement as a whole and not to any particular provision of this
Agreement, and section and subsection references are to this Agreement unless
otherwise specified. The word "including" means "including, without limitation"
unless the context otherwise requires. The meanings given to terms defined
herein shall be equally applicable to both the singular and plural forms of such
terms.
SECTION 2. REMEDIAL PROVISIONS
2.1 Notice of Default; Notice of Acceleration. (a) At any time
after the occurrence and during the continuation of an Event of Default, the
Administrative Agent may or, at the request of the Majority Lenders, shall
deliver a Notice of Default to the Borrower. At any time after the Loans and
other amounts owing under the Credit Agreement shall have been declared due and
payable and the Commitments shall have been terminated pursuant to Section 9 of
the Credit Agreement, the Administrative Agent may or, at the request of the
Majority Lenders, shall deliver a Notice of Acceleration to the Borrower,
provided that, in the event the Loans become due and payable and the Commitments
terminate as a result of the occurrence of an Event of Default under clause (i)
or (ii) of Section 9(f) of the Credit Agreement, a Notice of Acceleration shall
automatically be deemed to have been delivered under this Agreement.
(b) A Notice of Default and a Notice of Acceleration shall
become effective upon delivery thereof to the Borrower. A Notice of Default and
a Notice of Acceleration, once effective, shall remain in effect unless and
until it is cancelled as provided in subsection 2.1(c) or, in the case of a
Notice of Default only, the Event of Default giving rise to the delivery of the
same has been waived or is otherwise no longer continuing.
(c) The Administrative Agent shall be entitled, with the
consent of the Majority Lenders, to cancel any Notice of Default or Notice of
Acceleration by delivering a written notice of cancellation to the Borrower at
any time.
2.2 General Authority of the Administrative Agent over the
Collateral. Each Obligor hereby irrevocably constitutes and appoints the
Administrative Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full power and
authority in the name of such Obligor or in its or his own name, from time to
time in the Administrative Agent's discretion, as long as any Notice of Default
(and, to the extent required by this Agreement or any Security Document, a
Notice of Acceleration) is in effect, to take any and all appropriate action and
to execute any and all documents and instruments which may reasonably be
necessary or desirable to carry out the terms of this Agreement and the Security
Documents and accomplish the purposes hereof and thereof and, without limiting
the generality of the foregoing, each Obligor hereby gives the
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Administrative Agent the power and right on behalf of such Obligor, without
notice to or further assent by such Obligor, as long as any Notice of Default
(and, to the extent required by this Agreement or any Security Document, a
Notice of Acceleration) is in effect, to do the following:
(i) to exercise the rights of a secured creditor upon default
under the Code, including the right to take possession of, and to sell,
lease or otherwise dispose of, the Collateral, and to exercise its
rights upon default under any Mortgage;
(ii) to ask for, demand, xxx for, collect, receive and give
acquittance for any and all moneys due or to become due upon, or in
connection with, the Collateral;
(iii) to receive, take, endorse, assign and deliver any and all
checks, notes, drafts, acceptances, documents and other negotiable and
non-negotiable instruments taken or received by the Administrative Agent
as, or in connection with, the Collateral;
(iv) to commence, prosecute, defend, settle, compromise or
adjust any claim, suit, action or proceeding with respect to, or in
connection with, the Collateral;
(v) as long as a Notice of Acceleration is in effect, to sell,
transfer, assign or otherwise deal in or with the Collateral or any part
thereof as fully and effectively as if the Administrative Agent were the
absolute owner thereof; and
(vi) to do, at its option and at the expense and for the
account of the Obligors, at any time or from time to time, all acts and
things which the Administrative Agent reasonably deems necessary to
protect or preserve the Collateral (including obtaining insurance on the
Collateral) and as long as a Notice of Acceleration is in effect, to
realize upon the Collateral.
2.3 Right to Initiate Judicial Proceedings. The Administrative
Agent, subject to the provisions of subsection 2.5(b) and Section 6, (a) as long
as a Notice of Default (and, to the extent required by this Agreement or any
Security Document, a Notice of Acceleration) is in effect, shall have the right
and power to institute and maintain such suits and proceedings as it may deem
appropriate to protect and enforce the rights vested in it by this Agreement and
each Security Document and (b) as long as a Notice of Acceleration is in effect,
may either after entry, or without entry, proceed by suit or suits at law or in
equity to enforce such rights and to foreclose upon the Collateral and to sell
all or, from time to time, any of the Collateral under the judgment or decree of
a court of competent jurisdiction.
2.4 Right to Appoint a Receiver. As long as a Notice of
Acceleration is in effect, upon the filing of a xxxx in equity or other
commencement of judicial proceedings to enforce the rights of the Administrative
Agent under this Agreement or any Security
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Document, the Administrative Agent shall, to the extent permitted by law, with
notice to the Borrower but without notice to any party claiming through the
Obligors, without regard to the solvency or insolvency at the time of any Person
then liable for the payment of any of the Secured Obligations, without regard to
the then value of the Collateral, and without requiring any bond from any
complainant in such proceedings, be entitled as a matter of right to the
appointment of a receiver or receivers (who may be the Administrative Agent) of
the Collateral, or any part thereof, and of the rents, issues, tolls, profits,
royalties, revenues and other income thereof, pending such proceedings, with
such powers as the court making such appointment shall confer, and to the entry
of an order directing that the rents, issues, tolls, profits, royalties,
revenues and other income of the property constituting the whole or any part of
the Collateral be segregated, sequestered and impounded for the benefit of the
Administrative Agent and the Secured Parties, and each Obligor irrevocably
consents to the appointments of such receiver or receivers and to the entry of
such order, provided that, notwithstanding the appointment of any receiver, the
Administrative Agent shall be entitled to retain possession and control of all
cash and Cash Equivalents held by or deposited with it pursuant to this
Agreement or any Security Document.
2.5 Exercise of Powers; Instructions of Required Secured
Parties. (a) All of the powers, remedies and rights of the Administrative Agent
as set forth in this Agreement may be exercised by the Administrative Agent in
respect of any Security Document as though set forth in full therein and all of
the powers, remedies and rights of the Administrative Agent and the other
Secured Parties as set forth in any Security Document may be exercised from time
to time as herein and therein provided.
(b) The Majority Lenders shall have the right, by one or more
instruments in writing executed and delivered to the Administrative Agent, to
direct the time, method and place of conducting any proceeding for any right or
remedy available to the Administrative Agent, or of exercising any trust or
power conferred on the Administrative Agent, or for the appointment of a
receiver, or to direct the taking or the refraining from taking of any action
authorized by this Agreement or any Security Document, provided that (i) such
direction shall not conflict with the provisions of law, this Agreement, any
Security Document or any other Loan Document and (ii) the Administrative Agent
shall be adequately indemnified. Nothing in this subsection 2.5(b) shall impair
the right of the Administrative Agent in its discretion to take any action which
it deems proper and which is not inconsistent with such direction by the
Majority Lenders. In the absence of such direction, the Administrative Agent
shall have no duty to take or refrain from taking any action unless explicitly
required herein.
2.6 Remedies Not Exclusive. (a) No remedy conferred upon or
reserved to the Administrative Agent herein or in the Security Documents is
intended to be exclusive of any other remedy or remedies, but every such remedy
shall be cumulative and shall be in addition to every other remedy conferred
herein or in any Security Document or now or hereafter existing at law or in
equity or by statute.
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(b) No delay or omission by the Administrative Agent to
exercise any right, remedy or power hereunder or under any Security Document
shall impair any such right, remedy or power or shall be construed to be a
waiver thereof, and every right, power and remedy given by this Agreement or any
Security Document to the Administrative Agent may be exercised from time to time
and as often as may be deemed expedient by the Administrative Agent.
(c) If the Administrative Agent shall have proceeded to
enforce any right, remedy or power under this Agreement or any Security Document
and the proceeding for the enforcement thereof shall have been discontinued or
abandoned for any reason or shall have been determined adversely to the
Administrative Agent, then the Obligors, the Administrative Agent and the
Secured Parties shall, subject to any determination in such proceeding,
severally and respectively be restored to their former positions and rights
hereunder or thereunder with respect to the Collateral and in all other
respects, and thereafter all rights, remedies and powers of the Administrative
Agent shall continue as though no such proceeding had been taken.
(d) To the extent permitted by applicable law, all rights of
action and of asserting claims upon or under this Agreement and the Security
Documents may be enforced by the Administrative Agent without the possession of
any Secured Instrument or instrument evidencing any Secured Obligation or the
production thereof at any trial or other proceeding relative thereto, and any
suit or proceeding instituted by the Administrative Agent shall be, subject to
subsection 6.7(b)(ii), brought in its name as Administrative Agent and any
recovery of judgment shall be held as part of the Collateral.
2.7 Waiver and Estoppel. (a) Each Obligor agrees, to the
extent it may lawfully do so, that it will not at any time in any manner
whatsoever claim or take the benefit or advantage of any appraisement,
valuation, stay of execution, extension, moratorium, turnover or redemption law,
or any law permitting it to direct the order in which the Collateral shall be
sold, now or at any time hereafter in force, which may delay, prevent or
otherwise affect the performance or enforcement of this Agreement or any
Security Document and hereby waives all benefit or advantage of all such laws
and covenants that it will not hinder, delay or impede the execution of any
power granted to the Administrative Agent in this Agreement or any Security
Document but will suffer and permit the execution of every such power as though
no such law were in force.
(b) Each Obligor, to the extent it may lawfully do so, on
behalf of itself and all who may claim through or under it, waives and releases
all rights to demand or to have any marshalling of the Collateral upon any sale,
whether made under any power of sale granted herein or in any Security Document
or pursuant to judicial proceedings or upon any foreclosure or any enforcement
of this Agreement or any Security Document and consents and agrees that all the
Collateral may at any such sale be offered and sold as an entirety.
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(c) Each Obligor waives, to the extent permitted by applicable
law, presentment, demand, protest and any notice of any kind (except notices
explicitly required hereunder or under the Credit Agreement or any Security
Document) in connection with this Agreement and the Security Documents and any
action taken by the Administrative Agent with respect to the Collateral.
2.8 Limitation on Administrative Agent's Duty in Respect of
Collateral. Beyond its duties as to the custody thereof expressly provided
herein or in any Security Document and to account to the Secured Parties and the
Obligors for moneys and other property received by it hereunder or under any
Security Document, the Administrative Agent shall not have any duty to the
Obligors or to the Secured Parties as to any Collateral in its possession or
control or in the possession or control of any of its agents or nominees, or any
income thereon or as to the preservation of rights against prior parties or any
other rights pertaining thereto except to treat such Collateral in its
possession and control with the same degree of care as it accords its own
property and as may be required by applicable law. Notwithstanding the
foregoing, the Administrative Agent shall be responsible and accountable for
damages occasioned by such taking of possession or control which are the direct
result of the Administrative Agent's gross negligence or willful misconduct.
2.9 Limitation by Law; Limitation by Contract. (a) All rights,
remedies and powers provided in this Agreement or any Security Document may be
exercised only to the extent that the exercise thereof does not violate any
applicable provision of law, and all the provisions hereof and of the Security
Documents are intended to be subject to all applicable mandatory provisions of
law which may be controlling and (subject to subsection 7.5) to be limited to
the extent necessary so that they will not render this Agreement invalid,
unenforceable in whole or in part or not entitled to be recorded, registered or
filed under the provisions of any applicable law. In addition, and without
limiting the generality of the foregoing, (x) if any applicable law restricts
the granting of a security interest in any property or asset of an Obligor
(which would otherwise be Collateral under any Security Document) unless one or
more consents have been obtained or one or more conditions have been satisfied,
then such property or asset shall not be subject to a security interest under
the Security Documents and shall not constitute Collateral unless such consents
have been obtained and such conditions have been satisfied, and (y) if any
applicable law restricts the sale, assignment or other transfer of any interest
of an Obligor in any Collateral unless one or more consents have been obtained
or one or more conditions have been satisfied, then no such sale, assignment or
other transfer of such interest shall be made hereunder or under any Security
Document unless such consents have been obtained and such conditions have been
satisfied.
(b) The security interests granted under the Security
Documents shall not extend to any property or asset of any Obligor to the
extent, and only for as long as, such property is subject to another lien or
security interest which restricts the granting of additional liens or security
interests on such property and such property shall not constitute
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Collateral, provided that (i) such lien or security interest is permitted
pursuant to subsection 8.3(f), (g), (i), (j), (k), (m), (n), (o), (p), (q), (r),
(s) or (u) of the Credit Agreement and (ii) the restriction on the granting of
additional liens or security interests extends only to the property subject to
such lien or security interest and the proceeds thereof.
(c) If any contract expressly prohibits the granting of a
security interest in such contract without consent or any contract would be
voided or any Obligor would be in breach or default under any contract by virtue
of the granting of a security interest therein, then unless such consent has
been obtained, such contract, to the extent that such prohibition or avoidance
is effective as a matter of law, shall not be subject to a security interest
under the Security Documents and shall not constitute Collateral.
2.10 Rights of Secured Parties under Secured Instruments.
Notwithstanding any other provision of this Agreement or any Security Document,
the right of each Secured Party to receive payment of the Secured Obligations
held by such Secured Party when due (whether at the stated maturity thereof, by
acceleration or otherwise) as expressed in the related Secured Instrument or
other instrument evidencing or agreement governing a Secured Obligation or to
institute suit for the enforcement of such payment on or after such due date,
and the obligation of the relevant Obligor to pay such Secured Obligation when
due, shall not be impaired or affected without the consent of such Secured
Party. Notwithstanding the foregoing, no Secured Party shall institute or
commence any proceeding in the State of Alaska, Arizona, California, Nevada,
Utah or Washington to collect any Secured Obligations owed to it or shall
otherwise exercise any remedies against the Collateral with respect to the
Secured Obligations owed to it or exercise any right of setoff unless such
Secured Party shall have first obtained the consent of the Majority Lenders.
2.11 Subordination of Intercompany Obligations. (a) Each
Obligor agrees that upon the occurrence of any Bankruptcy Event with respect to
the Borrower or any of its Subsidiaries:
(i) all Secured Obligations shall be paid in full before any
payment or distribution is made with respect to any Intercompany Debt
owed to such Obligor by the Borrower or any such Subsidiary, as the case
may be; and
(ii) until the Secured Obligations shall be paid in full in
accordance with subsection 3.5, any payment or distribution of assets of
the Borrower or any such Subsidiary, as the case may be, whether in
cash, property or securities, to which such Obligor would be entitled
except for the provisions hereof, shall be paid or delivered by the
Borrower or such Subsidiary, as the case may be, or any receiver,
trustee in bankruptcy, liquidating trustee, disbursing agent or other
Person making such payment or distribution, directly to the
Administrative Agent, to the extent necessary to pay in full all Secured
Obligations in accordance with subsection 3.5, before any payment or
distribution shall be made to such Obligor.
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(b) Upon the occurrence of any Bankruptcy Event with respect
to the Borrower or any of its Subsidiaries:
(i) each Obligor irrevocably authorizes and empowers the
Administrative Agent (A) to demand, xxx for, collect and receive every
payment or distribution on account of the Intercompany Debt payable or
deliverable to such Obligor in connection with such event or proceeding
and give acquittance therefor, and (B) to file claims and proofs of
claim in any statutory or non-statutory proceeding and take such other
actions, in its own name, or in the name of such Obligor or otherwise,
as the Administrative Agent may deem necessary or advisable for the
enforcement of the provisions of this Agreement provided that the
foregoing authorization and empowerment imposes no obligation on the
Administrative Agent to take any such action;
(ii) such Obligor shall, to the extent permitted by applicable
law, take such action, duly and promptly, as the Administrative Agent
may request from time to time (A) to collect the Intercompany Debt
payable to such Obligor for the account of the Secured Parties and (B)
to file appropriate proofs of claim in respect of such Intercompany
Debt; and
(iii) such Obligor shall, to the extent permitted by applicable
law, execute and deliver such powers of attorney, assignments or proofs
of claim or other instruments as the Administrative Agent may request to
enable the Administrative Agent to enforce any and all claims in respect
of the Intercompany Debt payable to such Obligor and to collect and
receive any and all payments and distributions which may be payable or
deliverable at any time upon or in respect of such Intercompany Debt.
(c) Until the Secured Obligations shall have been paid in full
in accordance with subsection 3.5, if any payment or distribution, whether
consisting of money, property or securities, be collected or received by any
Obligor in respect of Intercompany Debt owed to it by the Borrower or any of its
Subsidiaries after the occurrence of a Bankruptcy Event with respect to the
Borrower or any such Subsidiary, as the case may be, such Obligor forthwith
shall deliver the same to the Administrative Agent, in the form received, duly
indorsed to the Administrative Agent, to the extent necessary to pay in full all
of the Secured Obligations in accordance with subsection 3.5. Until so
delivered, such payment or distribution shall be held in trust by such Obligor
as the property of the Secured Parties, segregated from other funds and property
held by such Obligor.
2.12 Certain Provisions In Existing Mortgages. (a) All
references, if any, in the Mortgages executed and delivered pursuant to the
Existing Credit Agreement (each, an "Existing Credit Agreement Mortgage") or any
credit agreement amended and restated by the Existing Credit Agreement (each, an
"Original Mortgage"), after giving effect to the provisions of this subsection
2.12, to a particular provision of the Existing Credit Agreement
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or any such credit agreement amended and restated by the Existing Credit
Agreement shall be deemed to be amended to refer to the appropriate
corresponding provision of the Credit Agreement; in the event that there shall
be no such corresponding provision in the Credit Agreement, then the Existing
Credit Agreement Mortgages and Original Mortgages shall be deemed to be amended
by deleting the provisions thereof relating to the referenced provision of the
Existing Credit Agreement or such credit agreement amended and restated by the
Existing Credit Agreement, respectively.
(b) The Original Mortgages are hereby amended by deleting the
following Sections thereof in their entirety: 1.01, 1.02, 1.03, 1.04, 1.05,
1.06, 1.07 (other than paragraph (b) thereof), 1.08, 1.09, 1.10, 1.11, 1.12,
1.16, 1.17, 1.18, 1.20, 1.21, 1.24, 1.26 and 2.02.
(c) The Original Mortgages are hereby further amended as
follows:
(i) the second sentence of Section 1.19 thereof is deleted;
(ii) a period is inserted after the words "the granting clause
hereof" in the first sentence of Section 1.25 thereof, and everything
appearing thereafter in such section is deleted;
(iii) the third, fourth, fifth, sixth, seventh and eighth
sentences of Section 3.01 thereof are deleted; and
(iv) the first and second sentences of Section 4.02 thereof are
deleted.
(d) Notwithstanding anything to the contrary contained in the
Existing Credit Agreement Mortgages or Original Mortgages as modified hereby or
otherwise: (i) the Administrative Agent shall not have or be entitled to
exercise any of the rights, powers, or remedies described in Section 2.04, 3.01,
4.02, 4.03, 4.05 or 4.06 thereof (or, in the case of each Original Mortgage
filed in the State of Michigan, Section 2.04, 3.01, 4.02, 4.03, 4.04, 4.06 or
4.07 thereof) at any time that a Notice of Acceleration is not in effect; (ii)
only the delivery of a Notice of Default to the Borrower shall constitute an
"Event of Default" under the Original Mortgages and the Existing Credit
Agreement Mortgages, and, in furtherance thereof, all references in the Original
Mortgages to the occurrence and continuance of an Event of Default (or words of
similar import) shall be deemed to be deleted and replaced by a reference to a
Notice of Default being in effect; (iii) the terms and provisions of this
Agreement and the Credit Agreement shall govern and control the application of
the Proceeds of any sale of any Mortgaged Property after payment of fees and
expenses incurred in connection with such sale; (iv) the Original Mortgages and
the Existing Credit Agreement Mortgages and the Liens created thereby shall be
terminated and released in connection with the occurrence of a Collateral
Release Event or a termination of the Credit Agreement, all as more fully set
forth in subsection 7.10; (v) the Lien on any asset subject to an Original
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Mortgage or an Existing Credit Agreement Mortgage that is sold or otherwise
disposed of or on which a Lien securing Indebtedness other than the Loans is
granted shall be released, all as more fully set forth in Section 5; and (vi)
the Original Mortgages and Existing Credit Agreement Mortgages and the Liens
created thereby shall not otherwise be released, terminated, discharged,
satisfied, extinguished and assigned, as the case may be, except in accordance
with the terms and provisions of this Agreement and the Credit Agreement.
(e) If, after giving effect to the foregoing provisions of
this subsection 2.12, any covenant, representation or other provision in any
Existing Credit Agreement Mortgage or any Original Mortgage conflicts or is
otherwise inconsistent with, or any such covenant, representation or other
provision is more burdensome on the Obligors than, any similar covenant,
representation or other provision contained in this Agreement or the Credit
Agreement, the covenants, representations and other provisions in this Agreement
and the Credit Agreement, as applicable, shall govern and control and such
covenants, representations and other provisions in the Existing Credit Agreement
Mortgages or Original Mortgages, as the case may be, shall be of no force and
effect, except to the extent any such override of any covenant, representation
or other provision in the Existing Credit Agreement Mortgages or Original
Mortgages (i) would materially and adversely affect (A) the rights and remedies
of the Administrative Agent in respect of the Mortgaged Properties, whether set
forth in the Existing Credit Agreement Mortgages, the Original Mortgages, at law
or in equity, or the exercise thereof, or (B) the Liens granted in favor of the
Administrative Agent under the Existing Credit Agreement Mortgages or the
Original Mortgages on the property subject thereto, or (ii) relates or is made
with reference to, or otherwise arises out of, the law of the state in which the
Mortgaged Property subject to an Existing Credit Agreement Mortgage or an
Original Mortgage is located.
(f) Nothing in the Existing Credit Agreement Mortgages, the
Original Mortgages, the Credit Agreement or this Agreement shall affect any
right or remedy of the Administrative Agent under any Existing Credit Agreement
Mortgage, Original Mortgage or otherwise, without notice or demand to any
Obligor, to pay any and all taxes of every kind and nature (including all real
and personal property, income, franchise, withholding, transfer, gains, profits
and gross receipts taxes), all charges for any easement or agreement maintained
for the benefit of any of the Mortgaged Properties, all general and special
assessments, levies, permits, inspection and license fees, all water and sewer
rents and charges, vault taxes, and all other public charges even if unforeseen
or extraordinary, imposed upon or assessed against or which may become a lien on
any of the Mortgaged Properties, or arising in respect of the occupancy, use or
possession thereof, or any mortgage recording, documentary stamp or intangible
taxes which may have arisen or may arise in connection with the creation or
preservation of the Lien of any Existing Credit Agreement Mortgage, Original
Mortgage or other Mortgage, together with any penalties or interest on any of
the foregoing (all of the foregoing are collectively referred to as the
"Impositions") after the date such Imposition shall have become due, and to add
to the Secured Obligations or any other sums secured by the Existing Credit
Agreement Mortgage or Original Mortgage to which
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such Mortgaged Property is subject the amount so paid, together with interest
from the time of payment at the rate per annum applicable to overdue principal
amounts of ABR Loans pursuant to subsection 4.4 of the Credit Agreement (the
"Applicable Rate"). Any sums paid by the Administrative Agent in discharge of
any Impositions shall be a charge on the Mortgaged Property to which they relate
prior to any right or title to, interest in, or claim upon such Mortgaged
Property subordinate to the lien of the applicable Existing Credit Agreement
Mortgage or Original Mortgage together with interest at the Applicable Rate.
(g) No Obligor shall claim, demand or be entitled to receive
any credit or credits toward the satisfaction of any Existing Credit Agreement
Mortgage or Original Mortgage to which it is a party or on any interest payable
thereon for any taxes assessed against any Mortgaged Property subject thereto or
any part thereof, and shall not claim, to the extent any such claim could
materially affect the Lien of any Existing Credit Agreement Mortgage or Original
Mortgage to which it is a party, any deduction from the taxable value of any
Mortgaged Property subject thereto by reason of any Existing Credit Agreement
Mortgage or Original Mortgage.
(h) If the Borrower is in default of its obligations under the
Credit Agreement to insure or deliver evidence of payment of any insurance
policy or policies, then the Administrative Agent, at its option and without
notice, may effect such insurance from year to year, and pay the premium or
premiums therefor, and the Borrower shall pay to the Administrative Agent on
demand such premium or premiums so paid by the Administrative Agent with
interest from the time of payment at the Applicable Rate and the same shall be
deemed to be secured by the Existing Credit Agreement Mortgage or Original
Mortgage, as the case may be, on the Mortgaged Property in respect of which such
premiums have been paid and shall be collectible in the same manner as the
Secured Obligations secured by such Existing Credit Agreement Mortgage or
Original Mortgage, respectively. The insurance may, but need not, protect the
Borrower's interests, and the coverage purchased by the Administrative Agent may
or may not pay any claim made against the Borrower in connection with the
Collateral. The costs of the insurance may be more than the cost of insurance
the Borrower is able to obtain on its own.
(i) If a Notice of Default is then in effect, then each
Obligor authorizes the Administrative Agent, at the Administrative Agent's
option and in the Administrative Agent's sole discretion, as attorney-in-fact
for the Obligors, to commence, appear in and prosecute, in the Administrative
Agent's or the applicable Obligor's name, any action or proceeding relating to
any condemnation of any Mortgaged Property, or any portion thereof, and to
settle or compromise any claim in connection with such condemnation and if the
Administrative Agent elects not to participate in such condemnation proceeding,
then the applicable Obligor shall, at its expense, diligently prosecute any such
proceeding and shall consult with the Administrative Agent, its attorneys and
experts and cooperate with them in any defense of any such proceedings and the
applicable Obligor agrees to execute any such assignments of all such awards as
the Administrative Agent may reasonably request.
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(j) Pursuant to the terms of the Credit Agreement, if the
Borrower or an Obligor fails to perform any covenant or agreement of the
Borrower or Obligor under the Credit Agreement and relating to any Mortgaged
Property, the Administrative Agent may, at any time (but shall be under no
obligation to) pay or perform the same, provided that (other than in the case of
an emergency), the Administrative Agent shall have first given ten days' written
notice to the Borrower of the Administrative Agent's intention to do so, and the
amount or cost of any such payment or performance, with interest at the
Applicable Rate. The Applicable Rate shall immediately be due from the Borrower
to the Administrative Agent and shall be added to the Secured Obligations, and
the same shall be secured by the Existing Credit Agreement Mortgage or Original
Mortgage to which such Mortgaged Property is subject and shall be an encumbrance
on such Mortgaged Property prior to any right, title to, interest in or claim
upon such Mortgaged Property attaching subsequent to the lien of such Existing
Credit Agreement Mortgage or Original Mortgage, respectively.
2.13 Overdrafts. Each Obligor agrees to repay any such
Obligor's Overdrafts in accordance with the terms of the relevant Secured
Instrument.
SECTION 3. CASH DOMINION SYSTEM; COLLATERAL ACCOUNTS; DISTRIBUTIONS
3.1 Cash Dominion System. (a) Each Obligor, jointly and
severally, represents and warrants to the Administrative Agent that it has
established a system (the "Cash Dominion System") of depositary accounts
(together with accounts opened from time to time pursuant to subsection 3.1(b),
"Depositary Accounts") into which each such Obligor shall promptly deposit or
cause to be deposited all Cash Proceeds other than Cash Proceeds in a Securities
Account received by it or any other Person on its behalf. Each Obligor
represents that Schedule 5.23 to the Credit Agreement contains a true and
complete list of all depositary accounts maintained by such Obligor with any
banks or financial institutions as of the Effective Date into which Cash
Proceeds are deposited (collectively, the "Depositary Banks"), each of which has
executed a Blocked Account Agreement or Lockbox Agreement, as appropriate. Each
Obligor further agrees that (x) all amounts received by it from any Credit Card
Subsidiary (whether as a dividend, loan or otherwise) shall be deposited
directly into a Depositary Account and (y) it shall (and shall cause the
relevant Credit Card Subsidiary to) execute and deliver such notices and
agreements as the Administrative Agent may reasonably require (and which, in the
case of the Credit Card Subsidiaries, do not violate the terms of the relevant
Credit Card Program) with respect to such amounts.
(b) Subject to subsection 3.1(f) below, each Obligor agrees
that it shall not open a bank or similar account after the Effective Date into
which Cash Proceeds are deposited unless the relevant Depositary Bank and such
Obligor shall have executed and delivered a Blocked Account Agreement or Lockbox
Agreement, as appropriate, with respect to such Depositary Account.
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(c) Each Obligor represents and warrants that it has
instructed all Account Debtors to make payments in respect of its such Accounts
to one or more Depositary Accounts to be subject to the Lockbox Agreements
executed and delivered pursuant to paragraph (a) or (b) above.
(d) Without prejudice to paragraph (a), (b) or (c) above or
paragraph (f) below, whether or not an Event of Default has occurred, any Cash
Proceeds (including in payment of any Account or in payment for any Inventory or
otherwise) that are not deposited directly into a Depositary Account, when
collected by any Obligor, shall be promptly deposited by such Obligor in a
Depositary Account, in precisely the form received, except for its endorsement
when required, and until so turned over, shall be deemed to be held in trust by
such Obligor for and as the Administrative Agent's property, and shall be held
separately from such Obligor's other funds.
(e) The Administrative Agent shall credit the proceeds of
Depositary Accounts which have been received through the Cash Dominion System
into the Collateral Account to be applied in accordance with subsection 3.5
hereof.
(f) Notwithstanding anything to the contrary contained herein
or in any other Loan Document, but subject to Section 8.8(b) of the Credit
Agreement: (i) cash consisting of cash at stores or cash in transit in the
ordinary course of business; and (ii) cash which is subject to a Lien or deposit
arrangement permitted under subsection 8.3(s) of the Credit Agreement shall not
be required to be subject to the Cash Dominion System.
(g) Each Obligor authorizes, ratifies, confirms and approves
the delivery by the Administrative Agent of a Cash Dominion Notice to each
Depositary Bank and each Person appointed to establish and maintain a Securities
Account pursuant to a Custody and Control Agreement.
3.2 The Collateral Account. On the Effective Date there shall
be established and, at all times thereafter until repayment in full of all the
Credit Agreement Obligations, there shall be maintained with the Administrative
Agent at the office of the Administrative Agent located in New York an account
which shall be entitled the "Citicorp USA, Inc. -- Collateral Account for
Service Merchandise Facility" (the "Collateral Account"). All moneys which are
required by this Agreement or any Security Document to be delivered to the
Administrative Agent or which are received by the Administrative Agent or any
agent or nominee of the Administrative Agent in respect of the Collateral,
whether in connection with the exercise of the remedies provided in this
Agreement or any Security Document or otherwise, shall be deposited in the
Collateral Account and applied in accordance with the terms of this Agreement.
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3.3 Control of Collateral Account. All right, title and
interest in and to the Collateral Account shall vest in the Administrative
Agent, and funds on deposit in the Collateral Account shall constitute part of
the Collateral.
3.4 Investment of Funds Deposited in Collateral Account. The
Administrative Agent shall invest and reinvest moneys on deposit in the
Collateral Account at any time in any of the following:
(i) marketable obligations of the United States having a
maturity of not more than three months from the date of acquisition;
(ii) marketable obligations directly and fully guaranteed by
the United States having a maturity of not more than three months from
the date of acquisition;
(iii) bankers' acceptances and certificates of deposit and other
interest-bearing obligations issued by Citibank N.A., or any bank
organized under the laws of the United States or any state thereof with
capital, surplus and undivided profits aggregating at least
$125,000,000, in each case having a maturity of not more than three
months from the date of acquisition;
(iv) repurchase obligations with a term of not more than one
day for underlying securities of the types described in clauses (i),
(ii) and (iii) above entered into with Citibank N.A., or any bank
meeting the qualifications specified in clause (iii) above; and
(v) commercial paper (except commercial paper issued by the
Borrower or its affiliates) rated at least A-1 or the equivalent thereof
by S&P or P-1 or the equivalent thereof by Xxxxx'x and maturing within
three months after the date of acquisition;
provided that the aggregate amount invested in obligations of the types
described in clauses (iii), (iv) and (v) above of any one issuer shall not
exceed $50,000,000 at any time, and provided, further, that, unless a Notice of
Acceleration is in effect, the Administrative Agent shall not make any such
investment except at the direction of the Borrower. All such investments and the
interest and income received thereon and the net proceeds realized on the sale
or redemption thereof shall be held in the Collateral Account as part of the
Collateral and shall be under the sole dominion and control of the
Administrative Agent.
3.5 Application of Moneys. (a) Unless a Notice of Acceleration
is in effect, all money held by the Administrative Agent in the Collateral
Account shall be applied or disbursed as set forth in subsection 4.1 of the
Credit Agreement.
(b) While a Notice of Acceleration is in effect, all moneys
held by the Administrative Agent in the Collateral Account or received by the
Administrative Agent
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shall, to the extent available for distribution (it being understood that the
Administrative Agent may liquidate investments prior to maturity in order to
make a distribution pursuant to this subsection 3.5), be distributed (subject to
the provisions of subsections 3.6 and 3.7) by the Administrative Agent on each
Distribution Date in the following order of priority:
First: to the payment of all unpaid fees and expenses of the
Agents payable under this Agreement, the Credit Agreement or any other
Loan Document;
Second: subject to subsection 3.6, to the Secured Parties in
an amount equal to the unpaid principal or face amount of, and unpaid
interest on, and premium or fees, if any, in respect of, the Secured
Obligations then outstanding whether or not then due and payable,
including the aggregate undrawn amounts available to be drawn (assuming
compliance with all conditions to drawing) under all bonds, guarantees,
letters of credit, acceptances, insurance, reimbursement and indemnity
agreements or similar obligations with respect to which the Borrower or
any other Obligor is obligated to reimburse the issuer thereof for any
drawings thereunder, the aggregate estimated amount of payment
liabilities of the Borrower and each other Obligor under Derivative
Agreements assuming immediate termination of all such agreements, the
outstanding amount of any Overdrafts, and, if such moneys shall be
insufficient to pay such amounts in full, then ratably (without
priority of any one over any other) to the Secured Parties in
proportion to the unpaid amounts thereof on such Distribution Date;
Third: to the Secured Parties, amounts equal to all other sums
which constitute Secured Obligations, including the costs and expenses
of the Secured Parties and their representatives which are due and
payable under the relevant Secured Instruments and which constitute
Secured Obligations as of such Distribution Date, and, if such moneys
shall be insufficient to pay such sums in full, then ratably to the
Secured Parties in proportion to such sums; and
Fourth: any surplus then remaining shall be paid to the
Obligors or their successors or assigns or to whomsoever may be
lawfully entitled to receive the same or as a court of competent
jurisdiction may direct.
(c) The term "unpaid" as used in clause Second of subsection
3.5(b) refers:
(i) in the absence of a bankruptcy proceeding with
respect to the relevant Obligor(s), to all amounts of Secured
Obligations outstanding as of a Distribution Date, whether or not such
amounts are fixed or contingent, and
(ii) during the pendency of a bankruptcy proceeding
with respect to the relevant Obligor(s), to all amounts allowed by the
bankruptcy court in respect of
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Secured Obligations as a basis for distribution (including estimated
amounts, if any, allowed in respect of contingent claims),
to the extent that prior distributions (whether actually distributed or set
aside pursuant to subsection 3.6) have not been made in respect thereof.
(d) The Administrative Agent shall make all payments and
distributions under this subsection 3.5: (i) on account of Credit Agreement
Obligations in accordance with the provisions of the Credit Agreement, (ii) on
account of any other Secured Obligation (other than Overdrafts), to the relevant
Secured Party based on the information supplied to the Administrative Agent by
the Borrower pursuant to subsection 4.1, and (iii) on account of Overdrafts, to
the relevant Lender based on information supplied to the Administrative Agent by
such Lender.
3.6 Amounts Held for Contingent Secured Obligations. In the
event any Secured Party shall be entitled to receive any moneys pursuant to
clause Second of subsection 3.5(b) in respect of the unliquidated unmatured or
contingent portion of the outstanding Secured Obligations (including obligations
under then outstanding letters of credit, guarantees and termination liabilities
with respect to Derivative Agreements and obligations which are not determinable
or are unmatured), then the Administrative Agent shall invest such moneys in
obligations of the kinds referred to in clauses (i) and (ii) of subsection 3.4
maturing within three months after they are acquired by the Administrative Agent
and shall hold all such amounts so distributable, and all such investments and
the net proceeds thereof, solely for such Secured Party and for no other purpose
until (i) such Secured Party shall have notified the Administrative Agent that
all or part of such unliquidated, unmatured or contingent claim shall have
become matured or fixed, in which case the Administrative Agent shall distribute
from such investments and the proceeds thereof an amount equal to such matured
or fixed claim to such Secured Party for application to the payment of such
matured or fixed claim, and shall promptly give notice thereof to the Borrower
or (ii) all or part of such unliquidated unmatured or contingent claim shall
have been extinguished, whether as the result of an expiration without drawing
of any letter of credit, payment of amounts secured or covered by any letter of
credit other than by drawing thereunder, payment of amounts covered by any
guarantee or otherwise, in which case (x) such Secured Party shall, as soon as
practicable thereafter, notify the Borrower and the Administrative Agent and (y)
such investments, and the proceeds thereof, shall be held in the Collateral
Account, in trust for all Secured Parties pending application in accordance with
the provisions of subsection 3.5.
3.7 Administrative Agent's Calculations. In making the
determinations and allocations required by subsection 3.5, the Administrative
Agent may conclusively rely upon information supplied by the holder of any
Secured Obligation or the Borrower as to the amounts payable with respect to any
Secured Obligation, and the Administrative Agent shall have no liability to any
of the Secured Parties for actions taken in reliance on any such information,
provided, that nothing in this sentence shall prevent any Obligor from
contesting
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in good faith, subject to the terms of the relevant Security Instrument, any
amounts claimed by any Secured Party in any information so supplied. All
distributions made by the Administrative Agent pursuant to subsection 3.5 shall
be (subject to any decree of any court of competent jurisdiction) final (absent
manifest error), and the Administrative Agent shall have no duty to inquire as
to the application by any Person of any amounts distributed to it.
3.8 Pro Rata Sharing. If, through the operation of any
bankruptcy, reorganization, insolvency or other laws or otherwise, the
Administrative Agent's security interest hereunder and under the Security
Documents is enforced with respect to some, but not all, of the Secured
Obligations then outstanding, the Administrative Agent shall nonetheless apply
the proceeds of the Collateral for the benefit of the holders of all Secured
Obligations in the proportions and subject to the priorities specified herein.
To the extent that the Administrative Agent distributes Proceeds collected with
respect to Secured Obligations held by one holder to or on behalf of Secured
Obligations held by a second holder, the first holder shall be deemed to have
purchased a participation in the Secured Obligations held by the second holder,
or shall be subrogated to the rights of the second holder to receive any
subsequent payments and distributions made with respect to the portion thereof
paid or to be paid by the application of such Proceeds.
SECTION 4. AGREEMENTS WITH THE ADMINISTRATIVE AGENT
4.1 Information as to Secured Parties and Administrative
Agent. The Borrower shall deliver to the Administrative Agent from time to time
while a Notice of Default is in effect, upon request of the Administrative
Agent, a list setting forth as of a date not more than 30 days prior to the date
of such delivery (i) the aggregate unpaid principal or face amount of Credit
Agreement Obligations and (ii) the aggregate unpaid or notional amount of each
other Secured Obligation (other than Overdrafts) and the name and address of
each Secured Party thereunder.
4.2 Stamp and Other Similar Taxes. The Borrower agrees to
indemnify and hold harmless the Administrative Agent and each Secured Party from
any present or future claim for liability for any stamp or any other similar tax
and any penalties or interest with respect thereto, which may be assessed,
levied or collected by any jurisdiction in connection with this Agreement, any
Security Document or any Collateral. The obligations of the Borrower under this
subsection 4.2 shall survive the termination of the other provisions of this
Agreement.
4.3 Filing Fees, Excise Taxes, Etc. The Borrower agrees to pay
or to reimburse the Administrative Agent for any and all payments made by the
Administrative Agent in respect of all filing, recording and registration fees,
excise taxes and other similar imposts which may be payable or determined to be
payable by the Administrative Agent in respect of the execution and delivery of
this Agreement and each Security Document. The
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obligations of the Borrower under this subsection 4.3 shall survive the
termination of the other provisions of this Agreement.
4.4 Indemnification. The Borrower agrees to pay, indemnify,
and hold the Administrative Agent harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits
and reasonable out-of-pocket costs, expenses (including the reasonable fees of
counsel) or disbursements of any kind or nature whatsoever with respect to the
enforcement of this Agreement and the Security Documents, except to the extent
arising from the gross negligence or willful misconduct of any indemnified
party. The Borrower agrees to pay, indemnify, and hold the Administrative Agent
harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits and reasonable out-of-pocket costs,
expenses (including the reasonable fees of counsel and other professional
advisors) or disbursements of any kind or nature whatsoever with respect to the
violation by any Obligor of, noncompliance with or remediation obligations under
any laws, rules or regulations regulating, relating to or imposing liabilities
or standards of conduct concerning environmental protection matters directly
relating to the Borrower or its real property (except to the extent that the
same results from the gross negligence or willful misconduct of the
Administrative Agent or its employees, officers or agents). The agreements in
this subsection 4.4 shall survive the termination of the other provisions of
this Agreement.
4.5 Further Assurances. At any time and from time to time,
upon the written request of the Administrative Agent, and at the expense of the
Obligors, each Obligor will promptly execute and deliver any and all such
further instruments and documents and take such further action as is necessary
or reasonably requested further to perfect, or to protect the perfection of, the
liens and security interests granted under the Security Documents intended to be
perfected under the terms of the Credit Agreement, including the filing of any
financing or continuation statements under the Uniform Commercial Code in effect
in any applicable jurisdiction. In addition to the foregoing, at any time and
from time to time, upon the written request of the Administrative Agent, and at
the expense of the Obligors, each Obligor will promptly execute and deliver any
and all such further instruments and documents and take such further action as
is necessary or reasonably requested to obtain the full benefits of this
Agreement and the Security Documents and of the rights and powers herein and
therein granted (consistent with any exclusions or time periods provided for
granting or perfection of liens and security interests contemplated by the
Credit Agreement or the Security Documents), including the filing of any
financing or continuation statements under the Uniform Commercial Code in effect
in any jurisdiction with respect to the liens and security interests granted by
the Security Documents (consistent with any exclusions or time periods provided
for granting or perfection of liens and security interests contemplated by the
Credit Agreement or the Security Documents). Each Obligor also hereby authorizes
the Administrative Agent to sign and to file any such financing statements (if
such Obligor fails to sign such financing statements within ten Business Days
after being requested to do so) and continuation statements without the
signature of such Obligor, in
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each case to the extent permitted by applicable law. In the event that the
Administrative Agent files any such financing or continuation statements, the
Administrative Agent shall promptly provide copies thereof to the Borrower,
provided, that the failure to provide such copies shall not affect the validity
of such filings. Notwithstanding the foregoing, no financing statements with
respect to fixtures shall be filed in any jurisdiction which is a Restricted
Jurisdiction.
SECTION 5. POSSESSION AND USE OF COLLATERAL; PARTIAL RELEASES
5.1 Use Prior to Notice of Acceleration. (a) As long as no
Notice of Acceleration is in effect, the Obligors shall have the right: (i) to
remain in possession and retain exclusive control of the Collateral (except the
Pledged Securities and the Collateral Account and except as otherwise provided
in subsection 3.1) with power freely and without hindrance on the part of the
Administrative Agent or the Secured Parties to operate, manage, develop, use,
apply, liquidate and enjoy the Collateral and to receive and use the rents,
issues, tolls, profits, royalties, revenues and other income thereof; (ii) to
sell or otherwise dispose of, free and clear of the lien and security interest
created by the Security Documents, or encumber any Collateral if such sale or
other disposition is not prohibited by the Credit Agreement or has been
expressly approved in accordance with the terms of the Credit Agreement or if
any Person is legally empowered to take any Collateral under the power of
condemnation or eminent domain; and (iii) to require the release any Lien
created pursuant to the Security Documents in connection with a transaction
permitted under subsection 8.3 (k) or (q) of the Credit Agreement. The
Administrative Agent consents and hereby subordinates each Mortgage to those
matters permitted by subsection 8.3(e) of the Credit Agreement with respect to
the related parcel of real property. The Administrative Agent shall have no duty
to monitor the exercise by the Obligors of their rights under this subsection
5.1.
(b) Cash Proceeds received by the Administrative Agent or any
Obligor in connection with the sale or other disposition of Collateral shall be
deposited in the Collateral Account. Any such Proceeds received by any Obligor
shall be held by such Obligor in trust for the Administrative Agent, shall be
segregated from other funds of such Obligor and shall, forthwith upon receipt by
such Obligor, be turned over to the Administrative Agent, in the same form as
received by such Obligor (duly indorsed to the Administrative Agent, if
required) for deposit in the Collateral Account.
5.2 Releases. (a) Releases of Collateral which is sold or
otherwise disposed of as permitted by subsection 5.1 or Section 9(c) of the
Securities Pledge Agreement and releases, consents and subordinations pursuant
to subsection 5.1 shall be automatic and shall not require any affirmative
action on the part of the Administrative Agent. Nevertheless, any Obligor may
request that the Administrative Agent execute and deliver to it or any
purchaser, transferee or assignee of Collateral or any such real property, or
other affected party, a written consent, release, discharge, disclaimer,
quitclaim or
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subordination, as applicable, in recordable form if necessary, of the
Administrative Agent's interest in any Collateral under the Security Documents,
and such purchaser, transferee, assignee or other affected party shall be
entitled to rely conclusively on such consent, release, discharge, disclaimer,
quitclaim or subordination. Such request shall be in writing, shall describe the
subject property in reasonable detail, and, except in the case of releases of
funds pursuant to Section 9(c) of the Securities Pledge Agreement, shall state
that such action is or will be in accordance with the Credit Agreement. Promptly
following any such request, the Administrative Agent shall execute such
requested documents, provided that the transaction giving rise to such request
is permitted by subsection 5.1.
(b) If any Collateral which is being sold or otherwise
disposed of pursuant to this Section 5 is in the possession of the
Administrative Agent or any agent or nominee thereof, the Administrative Agent
or such agent or nominee shall promptly (and in any event within two Business
Days after the request therefor) release such Collateral to the Obligor in
connection with such sale or disposition.
(c) The notices, statements, directions and certificates
requested under or required by this subsection 5.2 (together with any required
certificate of a Responsible Officer under subsection 6.3(e)) shall be full
authority for the Administrative Agent to execute and deliver the releases,
disclaimers, quitclaims and other instruments referred to in this subsection
5.2. The Administrative Agent in so doing shall have no liability to any Person.
5.3 Insurance and Condemnation Proceeds; Liquidating
Dividends. Any insurance proceeds in respect of any Collateral, any Proceeds
from the exercise of rights of eminent domain or condemnation in respect of any
Collateral and any liquidating dividends paid in respect of Pledged Stock
received by any of the Obligors or the Administrative Agent shall be deposited
in the Collateral Account to be held therein and applied in accordance with
Section 3. If for any reason any Obligor shall receive or hold any insurance
proceeds, condemnation proceeds or liquidating dividends that are required to be
held by the Administrative Agent pursuant to this subsection 5.3, such Obligor
shall hold such proceeds or dividends in trust for the Administrative Agent and
the Secured Parties and shall, as promptly as practicable, deliver such proceeds
or dividends to the Administrative Agent to be held in accordance with the
provisions of this subsection 5.3.
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SECTION 6. THE ADMINISTRATIVE AGENT
6.1 Exculpatory Provisions. (a) The Administrative Agent shall
not be responsible in any manner whatsoever for the correctness of any recitals,
statements, representations or warranties herein, all of which are made solely
by the Obligors. The Administrative Agent makes no representations as to the
value or condition of the Collateral or any part thereof, or as to the title of
the Obligors thereto or as to the security or perfection afforded by this
Agreement or any Security Document, or as to the validity, execution (except its
own execution), enforceability, legality or sufficiency of this Agreement, the
Security Documents or the Secured Obligations, and the Administrative Agent
shall incur no liability or responsibility in respect of any such matters. The
Administrative Agent shall not be responsible for insuring the Collateral or for
the payment of taxes, charges or assessments or discharging of liens upon the
Collateral or otherwise as to the maintenance of the Collateral, except that if
the Administrative Agent takes possession of any Collateral, the Administrative
Agent shall use the care accorded its own assets in the preservation of the
Collateral in its possession and as required by any applicable law.
Notwithstanding the foregoing, the Administrative Agent shall be responsible and
accountable for damages occasioned by such taking of possession or control which
are the direct result of the Administrative Agent's gross negligence or willful
misconduct.
(b) The Administrative Agent shall not be required to
ascertain or inquire as to the performance by the Obligors of any of the
covenants or agreements contained herein or in any Security Document or Secured
Instrument. Whenever it is necessary, or in the opinion of the Administrative
Agent advisable, for the Administrative Agent to ascertain the amount of Secured
Obligations then held by the Secured Parties, the Administrative Agent may
conclusively rely on a certificate of any Secured Party, in the case of any
Secured Obligations and, if any Secured Party shall not give such information to
the Administrative Agent, such Person shall not be entitled to receive
distributions hereunder (in which case distributions to those Persons who have
supplied such information to the Administrative Agent shall be calculated by the
Administrative Agent using, for those Persons who have not supplied such
information, the list then most recently delivered by the Borrower pursuant to
subsection 4.1), and the amount so calculated to be distributed to the Person
who fails to give such information shall be held in trust for such Person until
such Person does supply such information to the Administrative Agent, whereupon
on the next Distribution Date the amount distributable to such Person shall be
recalculated using such information and distributed to it. Nothing in the
preceding sentence shall prevent any Obligor from contesting amounts claimed by
any Secured Party in any certificate so supplied.
(c) The Administrative Agent shall be under no obligation or
duty to take any action under this Agreement or any Security Document if taking
such action (i) would subject the Administrative Agent to a tax in any
jurisdiction where it is not then subject to a tax or (ii) would require the
Administrative Agent to qualify to do business in any jurisdiction where it is
not then so qualified, unless the Administrative Agent receives
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security or indemnity satisfactory to it against such tax (or equivalent
liability), or any liability resulting from such qualification, in each case as
results solely from the taking of such action under this Agreement or any
Security Document.
(d) Notwithstanding any other provision of this Agreement
(other than those relating to the care of the Collateral in its possession), the
Administrative Agent shall not be personally liable for any action taken or
omitted to be taken by it in accordance with this Agreement or the Security
Documents except for its own gross negligence or willful misconduct.
(e) The Administrative Agent shall have the same rights with
respect to any Secured Obligation held by it as any other Secured Party and may
exercise such rights as though it were not the Administrative Agent hereunder,
and may accept deposits from, lend money to, and generally engage in any kind of
banking or trust business with, any of the Obligors as if it were not the
Administrative Agent.
6.2 Delegation of Duties. The Administrative Agent may execute
any of the trusts or powers hereof and perform any duty hereunder either
directly or by or through agents or attorneys-in-fact, who, subject to Sections
8 and 9(e) of the Securities Pledge Agreement, may include officers and
employees of any of the Obligors. The Administrative Agent shall be entitled to
advice of counsel concerning all matters pertaining to such trusts, powers and
duties. The Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care. The Administrative Agent may enter into agreements with such agents or
attorneys-in-fact in such form as it may reasonably deem necessary or advisable,
and shall be entitled to amend, modify, or waive the provisions of such
agreements from time to time, provided that no amendment, modification or waiver
to any bailment, custodial or similar agreement executed in connection herewith
affecting the Borrower or any Obligor shall be effective unless consented to in
writing by Borrower, which consent shall not be unreasonably withheld.
6.3 Reliance by Administrative Agent. (a) Whenever in the
administration of this Agreement or the Security Documents the Administrative
Agent shall deem it necessary or desirable that a factual matter be proved or
established in connection with the Administrative Agent taking, suffering or
omitting any action hereunder or thereunder, such matter (unless other evidence
in respect thereof is herein specifically prescribed) may be deemed to be
conclusively proved or established by a certificate of a Responsible Officer
delivered to the Administrative Agent, and such certificate shall be full
warrant to the Administrative Agent for any action taken, suffered or omitted in
reliance thereon, subject, however, to the provisions of subsection 6.4.
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(b) The Administrative Agent may consult with counsel, and any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered by it hereunder or under any Security
Document in accordance therewith. The Administrative Agent shall have the right
at any time to seek instructions concerning the administration of this Agreement
and the Security Documents from any court of competent jurisdiction.
(c) The Administrative Agent may rely, and shall be fully
protected in acting, upon any resolution, statement, certificate, instrument,
opinion, report, notice, request, consent, order, bond or other paper or
document which it has no reason to believe to be other than genuine and to have
been signed or presented by the proper party or parties or, in the case of
cables, facsimiles and telexes, to have been sent by the proper party or
parties. In the absence of its gross negligence or willful misconduct, the
Administrative Agent may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Administrative Agent and conforming to the
requirements of this Agreement.
(d) The Administrative Agent shall not be under any obligation
to exercise any of the rights or powers vested in the Administrative Agent by
this Agreement and the Security Documents, at the request or direction of the
Majority Lenders pursuant to this Agreement or otherwise, unless the
Administrative Agent shall have been provided adequate security and indemnity
against the costs, expenses and liabilities which may be incurred by it in
compliance with such request or direction, including such reasonable advances as
may be requested by the Administrative Agent.
(e) Upon any application or demand by any of the Obligors
(except any such application or demand which is expressly permitted to be made
orally) to the Administrative Agent to take or permit any action under any of
the provisions of this Agreement or any Security Document, the Borrower shall
furnish to the Administrative Agent a certificate of a Responsible Officer
stating that all conditions precedent, if any, provided for in this Agreement,
in any relevant Security Document or in the Credit Agreement relating to the
proposed action have been or will be (in the case of application of proceeds
from sales of assets) complied with, and in the case of any such application or
demand as to which the furnishing of any document is specifically required by
any provision of this Agreement or a Security Document relating to such
particular application or demand, such additional document shall also be
furnished.
(f) Any Opinion of Counsel may be based, insofar as it relates
to factual matters, upon a certificate of a Responsible Officer or
representations made by a Responsible Officer in a writing attached to such
Opinion of Counsel or filed with the Administrative Agent.
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6.4 Limitations on Duties of the Administrative Agent. (a) The
Administrative Agent shall be obligated to perform such duties and only such
duties as are specifically set forth in this Agreement and the Security
Documents, and no implied covenants or obligations shall be read into this
Agreement or any Security Document against the Administrative Agent except as
may be required by applicable law.
(b) No provision of this Agreement or of any Security Document
shall be deemed to impose any duty or obligation on the Administrative Agent to
perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it, in any jurisdiction in which it shall be illegal, or
in which the Administrative Agent shall be unqualified or incompetent, to
perform any such act or acts or to exercise any such right, power, duty or
obligation or if such performance or exercise would constitute doing business by
the Administrative Agent in such jurisdiction or imposes a tax on the
Administrative Agent by reason thereof.
6.5 Resignation and Removal of the Administrative Agent. The
Administrative Agent may resign and a successor Administrative Agent may be
appointed in accordance with the terms of the Credit Agreement applicable to
resignations of the Administrative Agent.
6.6 Merger of the Administrative Agent. Any corporation into
which the Administrative Agent may be merged, or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to
which the Administrative Agent shall be a party, shall be Administrative Agent
under this Agreement and the Security Documents without the execution or filing
of any paper or any further act on the part of the parties hereto.
6.7 Co-Collateral Agent; Separate Agents. (a) If at any time
or times it shall be necessary or prudent in order to conform to any law of any
jurisdiction in which any of the Collateral shall be located, or to avoid any
violation of law or imposition on the Administrative Agent of taxes by such
jurisdiction not otherwise imposed on the Administrative Agent, or the
Administrative Agent shall be advised by counsel, satisfactory to it, that it is
necessary or prudent in the interest of the Secured Parties, or the
Administrative Agent shall reasonably deem it desirable for its own protection
in the performance of its duties hereunder or under any Security Document, the
Administrative Agent and each of the Obligors shall execute and deliver all
instruments and agreements necessary or proper to constitute another bank or
trust company, or one or more persons approved by the Administrative Agent and
the Obligors, either to act as co-collateral agent or co-collateral agents of
all or any of the Collateral under this Agreement or under any of the Security
Documents, jointly with the Administrative Agent originally named herein or
therein or any successor Administrative Agent, or to act as separate collateral
agent or collateral agents of any of the Collateral. If any of the Obligors
shall not have joined in the execution of such instruments and agreements within
20 Business Days (or, if a Notice of Default is in
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effect, 10 Business Days) after it receives a written request from the
Administrative Agent to do so, or if a Notice of Acceleration is in effect, the
Administrative Agent may act under the foregoing provisions of this subsection
6.7(a) without the concurrence of such Obligors and execute and deliver such
instruments and agreements on behalf of such Obligors. Each of the Obligors
hereby appoints the Administrative Agent as its agent and attorney to act for it
under the foregoing provisions of this subsection 6.7(a) in either of such
contingencies.
(b) Every separate collateral agent and every co-collateral
agent, other than any successor Administrative Agent appointed pursuant to the
Credit Agreement, shall, to the extent permitted by law, be appointed and act
and be such, subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred
upon the Administrative Agent in respect of the custody, control and
management of moneys, papers, Chattel Paper, Instruments, or
securities shall be exercised solely by the Administrative Agent or
any agent appointed by the Administrative Agent;
(ii) all rights, powers, duties and obligations conferred
or imposed upon the Administrative Agent hereunder and under the
relevant Security Document or Documents shall be conferred or imposed
and exercised or performed by the Administrative Agent and such
separate collateral agent or separate collateral agents or
co-collateral agent or co-collateral agents, jointly, as shall be
provided in the instrument appointing such separate collateral agent
or separate collateral agents or co-collateral agent or co-collateral
agents, except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed the
Administrative Agent shall be incompetent or unqualified to perform
such act or acts, or unless the performance of such act or acts would
result in the imposition of any tax on the Administrative Agent which
would not be imposed absent such joint act or acts, in which event
such rights, powers, duties and obligations shall be exercised and
performed by such separate collateral agent or separate collateral
agents or co-collateral agent or co-collateral agents at the
direction of the Administrative Agent;
(iii) no power given hereby or by the relevant Security
Documents to, or which it is provided herein or therein may be
exercised by, any such co-collateral agent or co-collateral agents or
separate collateral agent or separate collateral agents, shall be
exercised hereunder or there by such co-collateral agent or
co-collateral agents or separate collateral agent or separate
collateral agents except jointly with, or with the consent or
direction in writing of, the Administrative Agent anything contained
herein to the contrary notwithstanding;
(iv) no collateral agent hereunder shall be personally
liable by reason of any act or omission of any other collateral agent
hereunder, except in connection with its own gross negligence or
willful misconduct; and
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(v) the Borrower and the Administrative Agent, at any
time by an instrument in writing executed by them jointly, may accept
the resignation of or remove any such separate collateral agent or
co-collateral agent and, in that case by an instrument in writing
executed by them jointly, may appoint a successor to such separate
collateral agent or co-collateral agent, as the case may be, anything
contained herein to the contrary notwithstanding. If the Borrower shall
not have joined in the execution of any such instrument within 20
Business Days (or, if a Notice of Default is in effect, 10 Business
Days) after it receives a written request from the Administrative Agent
to do so, or if a Notice of Acceleration is in effect, the
Administrative Agent shall have the power to accept the resignation of
or remove any such separate collateral agent or co-collateral agent and
to appoint a successor without the concurrence of the Borrower, the
Borrower hereby appointing the Administrative Agent its agent and
attorney to act for it in such connection in such contingency. If the
Administrative Agent shall have appointed a separate collateral agent
or separate collateral agents or co-collateral agent or co-collateral
agents as above provided, the Administrative Agent may at any time, by
an instrument in writing, accept the resignation of or remove any such
separate collateral agent or co-collateral agent and the successor to
any such separate collateral agent or co-collateral agent shall be
appointed by the Borrower and the Administrative Agent, or by the
Administrative Agent alone pursuant to this subsection 6.7(b).
6.8 Treatment of Payee or Indorsee by Administrative Agent;
Representatives of Secured Parties. (a) The Administrative Agent may treat the
registered holder or, if none, the payee or indorsee of any promissory note or
debenture evidencing a Secured Obligation as the absolute owner thereof for all
purposes and shall not be affected by any notice to the contrary, whether such
promissory note or debenture shall be past due or not.
(b) Any Person (other than the Administrative Agent), which
shall be designated as the duly authorized representative of one or more Secured
Parties to act as such in connection with any matters pertaining to this
Agreement or the Collateral shall present to the Administrative Agent such
documents, including Opinions of Counsel, as the Administrative Agent may
reasonably require, in order to demonstrate to the Administrative Agent the
authority of such Person to act as the representative of such Secured Parties
(it being understood that the holders of Credit Agreement Obligations are
represented hereunder by the Administrative Agent).
SECTION 7. MISCELLANEOUS
7.1 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made
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(a) in the case of delivery by hand (including by overnight courier), when
delivered, (b) in the case of delivery by mail, three days after being deposited
in the mails, postage prepaid, or (c) in the case of delivery by facsimile
transmission, when sent and receipt has been confirmed, addressed as follows, or
to such other address as may be hereafter notified by the respective parties
hereto:
(a) if to any Obligor or the Administrative Agent, to such
party at its address specified on the signature pages hereof; or
(b) if to any Secured Party, to it at its address specified in
the list provided by the Borrower to the Administrative Agent pursuant
to subsection 4.1;
provided that any notice, request or demand to the Administrative Agent shall
not be effective until received by the Administrative Agent. Whenever any party
hereto sends a notice by mail, such party will use reasonable efforts to also
send such notice by one of the other means of notice permitted hereunder,
provided that the failure to do so shall not affect in any way the validity of
any delivery by mail or otherwise result in any liability to such party.
7.2 No Waivers. No failure on the part of the Administrative
Agent, any co-collateral agent, any separate collateral agent or any Secured
Party to exercise, no course of dealing with respect to, and no delay in
exercising, any right, power or privilege under this Agreement or any Security
Document shall operate as a waiver thereof nor shall any single or partial
exercise of any such right, power or privilege preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
7.3 Amendments, Supplements and Waivers. (a) Subject to
subsection 11.1 of the Credit Agreement, the Administrative Agent and each of
the Obligors may, from time to time, enter into written agreements supplemental
hereto or to any Security Document for the purpose of adding to, or waiving any
provisions of, this Agreement or any Security Document or changing in any manner
the rights or obligations of the Administrative Agent, the Secured Parties or
the Obligors hereunder or thereunder, provided that no such supplemental
agreement shall (i) except as contemplated by subsection 4.1, amend, modify or
waive any provision of subsection 3.5 or the definition of Secured Obligations
without the written consent of each Secured Party whose rights would be
adversely affected thereby or (ii) amend, modify or waive any provision of
Section 4 or 6 or alter the duties, rights or obligations of the Administrative
Agent hereunder or under the Security Documents without the written consent of
the Administrative Agent. Any such supplemental agreement shall be binding upon
the Obligors, the Administrative Agent and the Secured Parties and their
respective successors and assigns.
(b) Without the consent of any Secured Party, the
Administrative Agent and any of the Obligors, at any time and from time to time,
may enter into one or more
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agreements supplemental hereto or to any Security Document, in form satisfactory
to the Administrative Agent, to mortgage or pledge to the Administrative Agent,
or grant a security interest in favor of the Administrative Agent in, any
property or assets as additional security for the Secured Obligations.
7.4 Headings. The table of contents and the headings of
Sections and subsections have been included herein and in the Security Documents
for convenience only and should not be considered in interpreting this Agreement
or the Security Documents.
7.5 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
7.6 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of each of the parties hereto and shall inure to
the benefit of each of the Secured Parties and their respective successors and
assigns, and nothing herein is intended or shall be construed to give any other
Person any right, remedy or claim under, to or in respect of this Agreement or
any Collateral.
7.7 Currency Conversions. In calculating the amount of Secured
Obligations for any purpose hereunder, including voting or distribution
purposes, the amount of any Secured Obligation which is denominated in a
currency other than Dollars shall be converted into Dollars at the spot rate for
purchasing Dollars with such currency determined by the Administrative Agent
(which determination shall be conclusive absent manifest error) to be in effect
in the New York foreign exchange market at the close of business on the Business
Day prior to the date on which such calculation is to be made.
7.8 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
7.9 Counterparts. This Agreement may be signed in any number
of counterparts (including by facsimile transmission) with the same effect as if
the signatures thereto and hereto were upon the same instrument.
7.10 Termination. (a) Upon the (i) release of the Liens on the
Collateral in accordance with the Credit Agreement or (ii) the termination of
the Credit Agreement in accordance with subsection 11.12 of the Credit
Agreement, the Administrative Agent will promptly, at the Borrower's written
request and expense, terminate all Lockbox Agreements and Blocked Account
Agreements and (x) execute and deliver to the Obligors such documents and other
instruments as the Borrower shall reasonably request to evidence the
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release of Liens on the Collateral (including UCC-3 Termination Statements), (y)
deliver or cause to be delivered to the Obligors all property of the Obligors
then held by the Administrative Agent or any agent thereof and (z) transfer all
amounts on deposit in the Collateral Account to an account designated by the
Person lawfully entitled to receive the same. Concurrently with any such release
or termination, this Agreement and each of the Security Documents shall
automatically terminate. The provisions of this subsection 7.10(a) shall survive
the termination of this Agreement.
(b) Upon the sale of all or a portion of the Capital Stock of
an Obligor to a third party in accordance with and as permitted under the Credit
Agreement such that such Obligor ceases to be a Subsidiary, (i) such Obligor and
each Subsidiary of such Obligor which is included in such sale (such Obligor and
each such Subsidiary being referred to herein as "Included Obligors") shall
cease to be an Obligor hereunder or a party to any Security Document and shall
be released from its obligations pursuant hereto and thereto, (ii) the Liens
created by the Security Documents entered into by such Included Obligors in all
right, title and interest of such Included Obligors in the Collateral shall
terminate, in each case only with respect to such Included Obligors, (iii) all
right, title and interest of the Administrative Agent in and to the Collateral
subject to such Liens shall revert to such Included Obligors, their successors
and assigns and (iv) any obligations of such Included Obligors shall, unless
otherwise expressly notified by the Borrower to the Administrative Agent in
writing, cease to be Secured Obligations. Upon any such termination, the
Administrative Agent will promptly, at the Borrower's written request, (x)
execute and deliver to such Included Obligors such documents and other
instruments as the Borrower shall reasonably request to evidence the release of
the Liens on such Collateral (including UCC-3 Termination Statements) and (y)
deliver or cause to be delivered to such Included Obligors all property of such
Included Obligors then held by the Administrative Agent or any agent thereof.
7.11 New Obligors. During the term of this Agreement, one or
more additional Subsidiaries may become a party to this Agreement by executing
an assumption agreement, substantially in the form of Exhibit D to this
Agreement, whereupon such Subsidiary shall become an Obligor for all purposes
and to the same extent as if originally a party hereto and shall be bound by and
entitled to the benefits of this Agreement.
7.12 Inspection by Regulatory Agencies. The Administrative
Agent shall make available, and shall cause each custodian and agent acting on
its behalf in connection with this Agreement to make available, all Collateral
in such Person's possession at all times for inspection by any regulatory agency
having jurisdiction over an Obligor to the extent required by such regulatory
agency in its discretion.
7.13 Submission to Jurisdiction; Waivers. Each Obligor hereby
irrevocably and unconditionally:
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(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Security Documents
to which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction
of the Courts of the State of New York, the courts of the United States
of America for the Southern District of New York, and appellate courts
from any thereof;
(b) to the extent permitted by applicable law, consents that
any such action or proceeding may be brought in such courts and waives
any objection that it may now or hereafter have to the venue of any
such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead
or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Obligor at its address set forth in subsection 7.1 or
at such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other court of competent jurisdiction;
and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary, punitive or
consequential damages.
7.14 WAIVERS OF JURY TRIAL. EACH OF THE OBLIGORS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER SECURITY DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
7.15 Amendment and Restatement. The parties hereto agree that,
as set forth in the fourth recital to this Agreement, this Agreement amends and
restates in its entirety the Existing Agreement, this Agreement does not
constitute a novation and, from and after the date hereof, the Existing
Agreement shall be of no force or effect except to evidence the incurrence of
each of the Obligors' obligations thereunder and the grant of Liens therein or
pursuant thereto.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed (by their respective authorized officers in the
case of corporate parties) as of the day and year first written above.
SERVICE MERCHANDISE COMPANY, INC.
By:
-----------------------------------------
Xxxxxx X. Xxxxxxx, Xx.
Treasurer
INITIAL OBLIGORS
X.X. XXXXX CO., INC.
X.X. XXXXXX CO., INC.
X.X. XXXXXX CO. REALTY, INC.
HOMEOWNERS WAREHOUSE, INC.
SERVICE MERCHANDISE CO. BROAD, INC.
SERVICE MERCHANDISE COMPANY OF IOWA, INC.
SERVICE MERCHANDISE COMPANY OF KANSAS, INC.
SERVICE MERCHANDISE CO. NO. 30, INC.
SERVICE MERCHANDISE CO. NO. 34, INC.
SERVICE MERCHANDISE CO. NO. 35, INC.
SERVICE MERCHANDISE CO. NO. 51, INC.
SERVICE MERCHANDISE CO. NO. 93, INC.
SERVICE MERCHANDISE CO. NO. 99, INC.
SERVICE MERCHANDISE FINANCIAL CO., INC.
SERVICE MERCHANDISE INDIANA PARTNERS (by its
Partners, Service Merchandise Co. No. 34, Inc.
and Service Merchandise Co. No. 35, Inc.)
SERVICE MERCHANDISE OF TENNESSEE LIMITED
PARTNERSHIP (by its General Partner, Service
Merchandise Company, Inc.)
SERVICE MERCHANDISE OF TEXAS LIMITED PARTNERSHIP
(by its General Partner, Service Merchandise
Company, Inc.)
SMC-HC, INC.
THE TOY STORE, INC.
WHOLESALE SUPPLY COMPANY, INC.
By:
---------------------------------------
Xxxxxx X. Xxxxxxx, Xx.
Treasurer
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Address for Notices for Obligors:
Service Merchandise Company, Inc.
0000 Xxxxxxx Xxxxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Fax: (000) 000-0000
General Counsel
Fax: (000) 000-0000
Treasurer:
Fax: (000) 000-0000
CITICORP USA, INC.,
as Administrative Agent
By:
--------------------------------------
Xxxxx X. Xxxxxx
Attorney-in-Fact
Address for Notices for The Administrative
Agent:
Citicorp USA, Inc.
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
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