SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) January 9, 1997
BROWN GROUP, INC.
(Exact name of registrant as specified in its charter)
New York
(State or other jurisdiction of incorporation or organization)
1-2191 43-0197190
(Commission File Number) (IRS Employer Identification Number)
8300 Maryland Avenue
St. Louis, Missouri 63105
(Address of principal executive offices) (Zip Code)
(314) 854-4000
(Registrant's telephone number, including area code)
NOT APPLICABLE
(Former name, former address and former fiscal year,
if changed since last report)
Page 1 of 121 Pages
<PAGE>
Item 2. Acquisition or Disposition of Assets
On January 9, 1997, Brown Group, Inc. (the "Company")
entered into a bank credit agreement (the "Credit
Agreement") with NationsBanc Capital Markets, Inc.
(formerly The Boatmen's National Bank of St. Louis), and
First Chicago Capital Markets, Inc., as Co-Agents, to
provide $155 million in available financing and
committed letter-of-credit backing. The Credit
Agreement, which replaced the Company's former bank
credit agreement for $200 million, includes a LIBOR-based
borrowing option. The Credit Agreement also
contains covenants which, among other things, require
the maintenance of certain financial ratios related to
fixed charge coverage, consolidated tangible net worth,
and long term debt-to-capital. The Credit Agreement is
for a term of three years.
Item 5. Other Events
On January 9, 1997, the Company entered into a
supplemental indenture (the "First Supplemental
Indenture") between Brown Group, Inc., certain of its
direct and indirect wholly-owned subsidiaries, (Brown
Group International, Inc., Brown Group Retail, Inc.,
Pagoda Trading Company, Inc., and Sidney Rich
Associates, Inc., collectively the "Guarantors"), and
State Street Bank and Trust Company, as Trustee,
supplementing the Indenture dated October 1, 1996
between the Company and State Street Bank and Trust
Company, as Trustee, (the "Indenture"). The First
Supplemental Indenture provides that each of the
Guarantors jointly and severally and unconditionally
guarantees the prompt payment of the principal of and
interest on the securities issued under the Indenture,
in accordance with the terms thereof.
<PAGE>
Item 7. Financial Statements, Pro Forma Information and Exhibits
Exhibit No. Description of Exhibit
4 (a) Credit Agreement, dated as of January 9,
1997, between the Company and
NationsBanc Capital Markets, Inc.
(formerly The Boatmen's National Bank of
St. Louis) and First Chicago Capital
Markets, Inc., as Co-Agents.
4 (b) First Supplemental Indenture dated as of
January 9, 1997, between Brown Group,
Inc., Brown Group International, Inc.,
Brown Group Retail, Inc., Pagoda Trading
Company, Inc., Sidney Rich Associates,
Inc., and State Street Bank and Trust
Company, as Trustee.
99.1 Press release dated January 13, 1997.
SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the Registrant has duly caused this report
to be signed on its behalf by the undersigned hereunto duly
authorized.
BROWN GROUP, INC.
(Registrant)
By /s/ H. E. Rich
Executive Vice President and
Chief Financial Officer
Date: January 17, 1997
<PAGE>
$155,000,000
CREDIT AGREEMENT
Dated as of January 9, 1997
among
BROWN GROUP, INC.
as Borrower
certain of its Subsidiaries and Affiliates,
as Guarantors
and
THE LENDERS NAMED THEREIN
as Lenders
and
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS
as Agent
and
FIRST CHICAGO CAPITAL MARKETS, INC.
as Syndication Agent
<PAGE>
ARTICLE I DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.2 Computation of Time Periods.. . . . . . . . . . . . . . . . . . . 16
1.3 Accounting Terms. . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE II THE FACILITY . . . . . . . . . . . . . . . . . . . . . . . . 16
2.1. The Facility.. . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.1.1. Description of Facility. . . . . . . . . . . . . . . . . . . . 16
2.1.2. Availability of Facility; Required Payments. . . . . . . . . . 16
2.2. Revolving Loans. . . . . . . . . . . . . . . . . . . . . . . . . 17
2.2.1. Revolving Loans. . . . . . . . . . . . . . . . . . . . . . . . 17
2.2.2. Types of Revolving Loans.. . . . . . . . . . . . . . . . . . . 17
2.2.3. Method of Selecting Types and Interest Periods for New
Revolving Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.2.4. Conversion and Continuation of Outstanding Revolving
Loans. 18
2.2.5. Interest.. . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.3. Letter of Credit Subfacility.. . . . . . . . . . . . . . . . . . 19
2.3.1. Issuance.. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.3.2. Notice and Reports.. . . . . . . . . . . . . . . . . . . . . . 19
2.3.3. Participation. . . . . . . . . . . . . . . . . . . . . . . . . 19
2.3.4. Reimbursement. . . . . . . . . . . . . . . . . . . . . . . . . 20
2.3.5. Repayment with Revolving Loans.. . . . . . . . . . . . . . . . 21
2.3.6. Designation of other Subsidiaries as Account Parties.. . . . . 21
2.3.7. Renewal, Extension.. . . . . . . . . . . . . . . . . . . . . . 22
2.3.8. Uniform Customs and Practices. . . . . . . . . . . . . . . . . 22
2.3.9. Indemnification; Nature of Issuing Lender's Duties.. . . . . . 22
2.3.10. Responsibility of Issuing Lender. . . . . . . . . . . . . . . 23
2.3.11 Conflict with LOC Documents. . . . . . . . . . . . . . . . . . 23
2.4. Fees.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.4.1. Agency and Administration Fees.. . . . . . . . . . . . . . . . 23
2.4.2. Facility Fee.. . . . . . . . . . . . . . . . . . . . . . . . . 23
2.4.3. Letter of Credit Fees. . . . . . . . . . . . . . . . . . . . . 24
2.5. General Facility Terms.. . . . . . . . . . . . . . . . . . . . . 24
2.5.1. Method of Borrowing. . . . . . . . . . . . . . . . . . . . . . 24
2.5.2. Minimum Amount of Each Revolving Loan. . . . . . . . . . . . . 24
2.5.3. Prepayments. . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.5.4. Interest Periods.. . . . . . . . . . . . . . . . . . . . . . . 25
2.5.5. Rate after Maturity. . . . . . . . . . . . . . . . . . . . . . 25
2.5.6. Interest Payment Dates; Interest and Fee Basis.. . . . . . . . 25
2.5.7. Method of Payment. . . . . . . . . . . . . . . . . . . . . . . 26
2.5.8. Notes; Telephonic Notices. . . . . . . . . . . . . . . . . . . 26
2.5.9. Notification of Loans, Interest Rates and Prepayments. . . . . 26
2.5.10. Non-Receipt of Funds by the Agent.. . . . . . . . . . . . . . 27
2.5.11. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . 27
2.5.12. Lending Installations.. . . . . . . . . . . . . . . . . . . . 27
2.5.13. Taxes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.5.14. Withholding Tax Exemption. . . . . . . . . . . . . . . . . . 28
2.6. Extension of Termination Date.. . . . . . . . . . . . . . . . . 28
ARTICLE III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
CHANGE IN CIRCUMSTANCES . . . . . . . . . . . . . . . . . . . . . . . 29
3.1. Yield Protection.. . . . . . . . . . . . . . . . . . . . . . 29
3.2. Changes in Capital Adequacy Regulations. . . . . . . . . . . 29
3.3. Availability of Types of Loans.. . . . . . . . . . . . . . . 30
3.4. Funding Indemnification. . . . . . . . . . . . . . . . . . . 30
3.5. Lender Statements; Survival of Indemnity.. . . . . . . . . . 30
3.6 Illegality. . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.7 Sharing of Payments.. . . . . . . . . . . . . . . . . . . . . 31
ARTICLE IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
CONDITIONS PRECEDENT. . . . . . . . . . . . . . . . . . . . . . . . . 32
4.1. Initial Extension of Credit. . . . . . . . . . . . . . . . . 32
4.2. Each Extension of Credit.. . . . . . . . . . . . . . . . . . 33
ARTICLE V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . . . . 33
5.1. Corporate Existence and Standing.. . . . . . . . . . . . . . 33
5.2. Authorization and Validity.. . . . . . . . . . . . . . . . . 34
5.3. No Conflict; Government Consent. . . . . . . . . . . . . . . 34
5.4. Financial Condition. . . . . . . . . . . . . . . . . . . . . 34
5.5. Material Adverse Change. . . . . . . . . . . . . . . . . . . 34
5.6. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.7. Litigation and Contingent Obligations. . . . . . . . . . . . 35
5.8. Subsidiaries.. . . . . . . . . . . . . . . . . . . . . . . . 35
5.9. ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.l0. Accuracy of Information.. . . . . . . . . . . . . . . . . . 36
5.11. Governmental Regulations. . . . . . . . . . . . . . . . . . 36
5.12. Material Agreements.. . . . . . . . . . . . . . . . . . . . 37
5.13. Compliance With Laws. . . . . . . . . . . . . . . . . . . . 37
5.14. Ownership of Properties.. . . . . . . . . . . . . . . . . . 38
5.15. Intellectual Property.. . . . . . . . . . . . . . . . . . . 38
ARTICLE VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
6.1. Financial Reporting. . . . . . . . . . . . . . . . . . . . . 38
6.2 Certificates; Other Information.. . . . . . . . . . . . . . . 39
6.3 Notices.. . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.4. Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . 41
6.5. Conduct of Business. . . . . . . . . . . . . . . . . . . . . 41
6.6. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.8. Compliance with Laws.. . . . . . . . . . . . . . . . . . . . 42
6.9. Maintenance of Properties. . . . . . . . . . . . . . . . . . 42
6.10. Inspection. . . . . . . . . . . . . . . . . . . . . . . . . 42
6.11. Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . 42
6.12. Merger. . . . . . . . . . . . . . . . . . . . . . . . . . . 43
6.13. Sale of Assets. . . . . . . . . . . . . . . . . . . . . . . 44
6.14. Investments and Acquisitions. . . . . . . . . . . . . . . . 44
6.15. Liens.. . . . . . . . . . . . . . . . . . . . . . . . . . . 45
6.16. Affiliates. . . . . . . . . . . . . . . . . . . . . . . . . 46
6.17. Consolidated Leverage Ratio.. . . . . . . . . . . . . . . . 46
6.18. Capital Expenditures. . . . . . . . . . . . . . . . . . . . 46
6.19. Consolidated Tangible Net Worth.. . . . . . . . . . . . . . 47
6.20. Consolidated Fixed Charge Coverage. . . . . . . . . . . . . 47
6.21. Investments and Loans.. . . . . . . . . . . . . . . . . . . 47
6.22. Fiscal Year.. . . . . . . . . . . . . . . . . . . . . . . . 47
6.23. Additional Credit Parties.. . . . . . . . . . . . . . . . . 47
6.24. Restricted Payments.. . . . . . . . . . . . . . . . . . . . 48
ARTICLE VII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
DEFAULTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.1. Representations. . . . . . . . . . . . . . . . . . . . . . . 48
7.2. Nonpayment.. . . . . . . . . . . . . . . . . . . . . . . . . 48
7.3. Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.4. Other Covenants. . . . . . . . . . . . . . . . . . . . . . . 48
7.5. Cross-Default. . . . . . . . . . . . . . . . . . . . . . . . 49
7.6. Bankruptcy.. . . . . . . . . . . . . . . . . . . . . . . . . 49
7.7. Receivership.. . . . . . . . . . . . . . . . . . . . . . . . 49
7.8. Condemnation.. . . . . . . . . . . . . . . . . . . . . . . . 49
7.9. Legal Proceedings. . . . . . . . . . . . . . . . . . . . . . 49
7.10. Defined Benefit Pension Plans.. . . . . . . . . . . . . . . 50
7.11. Multiemployer Plans.. . . . . . . . . . . . . . . . . . . . 50
7.12. Other Multiemployer Plans.. . . . . . . . . . . . . . . . . 50
7.13. Environmental.. . . . . . . . . . . . . . . . . . . . . . . 50
7.14. Change of Control.. . . . . . . . . . . . . . . . . . . . . 50
7.15. Rate Hedging Obligations. . . . . . . . . . . . . . . . . . 50
7.16 Guaranties.. . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES. . . . . . . . . . . . 51
8.1. Acceleration.. . . . . . . . . . . . . . . . . . . . . . . . 51
8.2. Amendments.. . . . . . . . . . . . . . . . . . . . . . . . . 51
8.3. Preservation of Rights.. . . . . . . . . . . . . . . . . . . 52
ARTICLE IX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.1. Survival of Representations. . . . . . . . . . . . . . . . . 52
9.2. Governmental Regulation. . . . . . . . . . . . . . . . . . . 52
9.3. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.4. Headings.. . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.5. Entire Agreement.. . . . . . . . . . . . . . . . . . . . . . 53
9.6. Several Obligations; Benefits of this Agreement. . . . . . . 53
9.7. Expenses; Indemnification. . . . . . . . . . . . . . . . . . 53
9.8. Numbers of Documents.. . . . . . . . . . . . . . . . . . . . 54
9.9. Accounting.. . . . . . . . . . . . . . . . . . . . . . . . . 54
9.10. Severability of Provisions. . . . . . . . . . . . . . . . . 54
9.11. Nonliability of Lenders.. . . . . . . . . . . . . . . . . . 54
9.12. CHOICE OF LAW.. . . . . . . . . . . . . . . . . . . . . . . 54
9.13. CONSENT TO JURISDICTION.. . . . . . . . . . . . . . . . . . 54
9.14. WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . 55
9.15. Confidentiality.. . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE X. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
10.1. Appointment.. . . . . . . . . . . . . . . . . . . . . . . . 55
10.2. Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . 55
10.3. General Immunity. . . . . . . . . . . . . . . . . . . . . . 55
10.4. No Responsibility for Loans, Recitals, etc. . . . . . . . . 56
10.5. Action on Instructions of Lenders.. . . . . . . . . . . . . 56
10.6. Employment of Agents and Counsel. . . . . . . . . . . . . . 56
10.7. Reliance on Documents; Counsel. . . . . . . . . . . . . . . 56
10.8. Agent's Reimbursement and Indemnification.. . . . . . . . . 57
10.9. Rights as a Lender. . . . . . . . . . . . . . . . . . . . . 57
10.l0. Lender Credit Decision.. . . . . . . . . . . . . . . . . . 57
10.11. Successor Agent. . . . . . . . . . . . . . . . . . . . . . 57
10.12. Sharing Agreement. . . . . . . . . . . . . . . . . . . . . 58
ARTICLE XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SETOFF; RATABLE PAYMENTS. . . . . . . . . . . . . . . . . . . . . . . 58
11.1. Setoff. . . . . . . . . . . . . . . . . . . . . . . . . . . 58
11.2. Ratable Payments. . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE XII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS . . . . . . . . . . 59
12.1. Successors and Assigns. . . . . . . . . . . . . . . . . . . 59
12.2. Participations. . . . . . . . . . . . . . . . . . . . . . . 59
12.2.1 Permitted Participants; Effect.. . . . . . . . . . . . . . 59
12.2.2. Voting Rights.. . . . . . . . . . . . . . . . . . . . . . 59
12.2.3. Benefit of Setoff.. . . . . . . . . . . . . . . . . . . . 60
12.3. Assignments.. . . . . . . . . . . . . . . . . . . . . . . . 60
12.3.1. Permitted Assignments.. . . . . . . . . . . . . . . . . . 60
12.3.2. Effect; Effective Date. . . . . . . . . . . . . . . . . . 60
12.4. Dissemination of Information. . . . . . . . . . . . . . . . 61
12.5. Tax Treatment.. . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE XIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
13.1. Giving Notice.. . . . . . . . . . . . . . . . . . . . . . . 61
13.2. Change of Address.. . . . . . . . . . . . . . . . . . . . . 61
ARTICLE XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
14.1 Counterparts.. . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE XV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
GUARANTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
15.1. The Guaranty. . . . . . . . . . . . . . . . . . . . . . . . 62
15.2. Obligations Unconditional.. . . . . . . . . . . . . . . . . 62
15.3. Reinstatement.. . . . . . . . . . . . . . . . . . . . . . . 63
15.4. Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . 63
15.5. Rights of Contribution. . . . . . . . . . . . . . . . . . . 64
15.6. Continuing Guarantee. . . . . . . . . . . . . . . . . . . . 64
<PAGE>
This Agreement, dated as of January 9, 1997, is among Brown
Group, Inc. and certain of its subsidiaries and affiliates
identified herein or as may hereafter become a party, the Lenders
and The Boatmen's National Bank of St. Louis, as Agent and First
Chicago Capital Markets, Inc., as Syndication Agent. The parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
- -----------
1.1. Definitions.
As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement,
by which the Borrower or any of its Subsidiaries (i) acquires any
going concern, business or all or substantially all of the assets
of any firm, corporation or division thereof, or limited liability
company, whether through purchase of assets, merger or otherwise
or (ii) directly or indirectly acquires (in one transaction or as
the most recent transaction in a series of transactions) at least
a majority (in number of votes) of the securities of a corporation
which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage or voting
power) of the outstanding partnership interests of a partnership.
"Additional Credit Party" means each Person that becomes a
Guarantor after the Closing Date by execution of a Joinder
Agreement.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with
such Person. A Person shall be deemed to control another Person if
the controlling Person owns 10% or more of any class of voting
securities (or other ownership interests) of the controlled Person
or possesses, directly or indirectly, the power to direct or cause
the direction of the management or policies of the controlled
Person, whether through ownership of stock, by contract or
otherwise.
"Agency Services Address" means The Boatmen's National Bank of St.
Louis, 901 Main Street, TX1-49-213-05, Dallas, Texas 75283, Attn:
Agency Services, or such other address as may be identified by
written notice from the Agent to the Borrower.
"Agent" means The Boatmen's National Bank of St. Louis in its
capacity as agent for the Lenders pursuant to Article X, and not in
its individual capacity as a Lender, and any successor Agent
appointed pursuant to Article X.
"Aggregate Commitment" means the aggregate amount of Revolving
Commitments in effect from time to time, being initially ONE
HUNDRED FIFTY-FIVE MILLION DOLLARS ($155,000,000).
"Agreement" means this Agreement, as it may be amended or
modified and in effect from time to time.
"Alternate Base Rate" means, on any date and with respect to all
Floating Rate Loans, a fluctuating rate of interest per annum
(rounded upwards, if necessary, to the nearest whole multiple of
1/100 of 1%) equal to the higher of (i) the Federal Funds Effective
Rate most recently determined by the Agent plus 1/2% per annum and
(ii) the Corporate Base Rate. Changes in the rate of interest
based on the Alternate Base Rate will take effect simultaneously
with each change in the Alternate Base Rate. The Agent will give
notice promptly to the Borrower and the Lenders of changes in the
Alternate Base Rate, provided, however, that the Agent's failure to
give any such notice will not affect the Borrower's obligation to
pay interest based on the Alternate Base Rate to the Lenders at the
then effective Alternate Base Rate.
"Applicable Percentage" means for any day, the rate per annum set
forth below opposite the applicable Consolidated Leverage Ratio
then in effect, it being understood that the Applicable Percentage
for (i) Floating Rate Loans shall be the percentage set forth under
the column "Alternate Base Rate Margin", (ii) Eurodollar Loans
shall be the percentage set forth under the column "Eurodollar
Margin and Standby Letter of Credit Fee", (iii) the Standby Letter
of Credit Fee shall be the percentage set forth under the column
"Eurodollar Margin and Standby Letter of Credit Fee" and (iv) the
Facility Fee shall be the percentage set forth under the column
"Facility Fee":
Eurodollar
Margin
Consolidated and
Pricing Leverage Base Rate Standby Letter of Facility
Level Ratio Margin Credit Fee Fee
------- ------------ --------- ----------------- --------
I < 35% 0% .500% .250%
II > 35% but <40% 0% .750% .250%
-
III > 40% but <45% 0% 1.000% .250%
-
IV > 45% but <50% .125% 1.125% .375%
-
V > 50% .375% 1.375% .375%
-
The Applicable Percentage shall be determined and adjusted
quarterly on the date (each a "Rate Determination Date") five (5)
Business Days after the date by which the annual and quarterly
compliance certificates and related financial statements and
information are required in accordance with the provisions of
Sections 6.1(i) and (ii) and Section 6.2(ii), as appropriate;
provided that:
(i) the initial Applicable Percentages shall be
based on Pricing Level V and shall remain in effect at such
Pricing Level until the first Rate Determination Date to
occur after delivery of annual audited financial statements
for the fiscal year ended February 1 1997, and
(ii) in the event an annual or quarterly compliance
certificate and related financial statements and information
are not delivered timely to the Agency Services Address by
the date required by Sections 6.1(i) and (ii) and Section
6.2(ii), as appropriate, the Applicable Percentages shall be
based on Pricing Level V until such time as an appropriate
compliance certificate and related financial statements and
information are delivered, whereupon the applicable Pricing
Level shall be adjusted based on the information contained
in such compliance certificate and related financial
statements and information.
Each Applicable Percentage shall be effective from a Rate
Determination Date until the next such Rate Determination Date.
The Agent shall determine the appropriate Applicable Percentages
in the pricing matrix promptly upon receipt of the quarterly or
annual compliance certificate and related financial information
and shall promptly notify the Borrower and the Lenders of any
change thereof. Such determinations by the Agent shall be
conclusive absent manifest error. Adjustments in the Applicable
Percentages shall be effective as to existing Extensions of
Credit as well as new Extensions of Credit made thereafter.
"Article" means an article of this Agreement unless another
document is specifically referenced.
"Attributed Principal Amount" means, on any day, with respect to
any Securitization Transaction entered into by the Borrower or any
of its Subsidiaries, the aggregate amount (with respect to any such
transaction, the "Invested Amount") paid to, or borrowed by, such
Person as of such date under such Securitization Transaction, minus
the aggregate amount received by the applicable Receivables
Financier and applied to the reduction of the Invested Amount under
such Securitization Transaction.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced
from time to time.
"Boatmen's" means The Boatmen's National Bank of St. Louis,
and its successors.
"Borrower" means Brown Group, Inc., a New York corporation,
and its permitted successors and assigns.
"Borrowing Base" means, at any time, an amount equal to the
sum of eighty percent (80%) of Eligible Receivables plus forty
percent (40%) of Eligible Inventory.
"Borrowing Date" means a date on which an Extension of
Credit is made hereunder.
"Business Day" means (i) with respect to any borrowing,
payment or rate selection of Eurodollar Loans, a day other than
Saturday or Sunday on which banks are open for business in
Dallas, Texas, and New York City, New York and on which dealings
in United States dollars are carried on in the London interbank
market and (ii) for all other purposes, a day other than Saturday
or Sunday on which banks are open for business in Dallas, Texas
and New York City, New York.
"Capital Expenditures" means all expenditures which in
accordance with GAAP would be classified as capital expenditures.
"Capitalized Lease" of a Person means any lease of Property
by such Person as lessee which would be capitalized on a balance
sheet of such Person prepared in accordance with GAAP.
"Capitalized Lease Obligations" of a Person means the amount
of the obligations of such Person under Capitalized Leases which
would be shown as a liability on a balance sheet of such Person
prepared in accordance with GAAP.
"Change in Control" means, the acquisition by any Person, or
two or more Persons acting in concert, of beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of 20% or
more of the outstanding shares of voting stock of the Borrower.
"Closing Date" means the date of this Agreement.
"Code" means, the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
"Commitment" means the Revolving Commitment and the LOC
Commitment.
"Commitment Percentage" means the Revolving Commitment
Percentage.
"Commitment Period" means the period from and including the
Closing Date to but not including the earlier of (i) the
Termination Date, or (ii) the date on which the Commitments
terminate in accordance with the provisions of this Agreement.
"Condemnation" is defined in Section 7.8.
"Consolidated Adjusted EBITDAR" means for any period for the
Borrower and its Subsidiaries, the sum of Consolidated EBITDA
plus rent expense, in each case on a consolidated basis
determined in accordance with GAAP applied on a consistent basis.
Except as expressly provided otherwise, the applicable period
shall be for the four consecutive quarters ending as of the date
of determination.
"Consolidated Capitalization" means, at any date of
determination, the sum of (i) Consolidated Net Worth plus (ii)
Consolidated Funded Debt.
"Consolidated EBITDA" means for any period for the Borrower
and its Subsidiaries, the sum of Consolidated Net Income plus
Consolidated Interest Expense plus all provisions for any
Federal, state or other domestic and foreign income taxes plus
depreciation and amortization, in each case on a consolidated
basis determined in accordance with GAAP applied on a consistent
basis. Except as expressly provided otherwise, the applicable
period shall be for the four consecutive quarters ending as of
the date of determination.
"Consolidated Fixed Charges" means for any period for the
Borrower and its Subsidiaries, the sum of Consolidated Interest
Expense plus rent expense, in each case on a consolidated basis
determined in accordance with GAAP applied on a consistent basis.
Except as expressly provided otherwise, the applicable period
shall be for the four consecutive quarters ending as of the date
of determination.
"Consolidated Fixed Charge Coverage Ratio" means the ratio of
Consolidated Adjusted EBITDAR to Consolidated Fixed Charges.
"Consolidated Funded Debt" means Funded Debt of the Borrower
and its Subsidiaries determined on a consolidated basis in
accordance with GAAP applied on a consistent basis.
"Consolidated Intangible Assets" means, for the Borrower and
its Subsidiaries on a consolidated basis, the amount (to the
extent reflected in determining such consolidated stockholders'
equity) of (i) all write-ups (other than write-ups resulting from
foreign currency translations and write-ups of assets of a going
concern business made within twelve months of acquisition)
subsequent to the Closing Date in the book value of any asset
owned by the Borrower or a Subsidiary and (ii) all unamortized
debt discount and expense, unamortized deferred charges (other
than prepaid expenses and net pension assets recognized on the
Borrower's consolidated balance sheet), goodwill, patents,
trademarks, service marks, trade names, copyrights, organization
or developmental expenses and other items treated as intangibles
under GAAP.
"Consolidated Interest Expense" means for any period for the
Borrower and its Subsidiaries, all interest expense, including
the amortization of debt discount and premium, the interest
component under Capitalized Leases and the implied interest
component under Securitization Transactions, in each case on a
consolidated basis determined in accordance with GAAP applied on
a consolidated basis. Except as expressly provided otherwise,
the applicable period shall be for the four consecutive quarters
ending as of the date of determination.
"Consolidated Leverage Ratio" means, as of any day, the ratio
of Consolidated Funded Debt to Consolidated Capitalization.
"Consolidated Net Income" means for any period , the net
income of the Borrower and its Subsidiaries on a consolidated
basis determined in accordance with GAAP applied on a consistent
basis, but excluding for purposes of determining the Consolidated
Fixed Charge Coverage Ratio, any extraordinary gains or losses,
and any non-recurring non-cash gains and losses, and any taxes on
such excluded gains and losses and any tax deductions or credits
on account of any such excluded gains and losses.
"Consolidated Net Worth" means total stockholders' equity for
the Borrower and its Subsidiaries on a consolidated basis as
determined in accordance with GAAP applied on a consistent basis.
"Consolidated Tangible Net Worth" means total stockholders'
equity minus Consolidated Intangible Assets, in each case for the
Borrower and its Subsidiaries on a consolidated basis as
determined in accordance with GAAP applied on a consistent basis.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any
material agreement, instrument or undertaking to which such
Person is a party or by which it or any of its property is bound.
"Controlled Group" means all members of a controlled group
of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the
Borrower or any of its Subsidiaries, are treated as a single
employer under Section 414 of the Code.
"Conversion/Continuation Notice" is defined in Section
2.2.4.
"Corporate Base Rate" means a rate per annum equal to the
corporate base rate of interest announced by the Agent from time
to time, changing when and as said corporate base rate changes.
"Credit Party" means each of the Borrower and the Guarantors.
"Default" means an event described in Article VII.
"Defaulting Lender" means, at any time, any Lender that at
such time, (i) has failed to make an Extension of Credit required
pursuant to the terms of this Agreement, (ii) has failed to pay
to the Agent or any Lender an amount owed by such Lender pursuant
to the terms of this Agreement or any other of the Loan
Documents, or (iii) has been deemed insolvent or has become
subject to a bankruptcy or insolvency proceeding or to a
receiver, trustee or similar proceeding.
"Domestic Credit Party" means any Credit Party which is
incorporated or organized under the laws of any State of the
United States or the District of Columbia.
"Domestic Subsidiary" means any Subsidiary which is
incorporated or organized under the laws of any State of the
United States or the District of Columbia.
"Eligible Inventory" means, as of the date of determination,
the gross dollar value (valued at the lower of cost (on a FIFO
basis) or fair market value) of all inventory of the Borrower and
its Subsidiaries less required reserves determined in accordance
with GAAP applied on a consistent basis, but excluding in any
event (i) inventory subject to a Lien other than Liens permitted
in accordance with Section 6.15(i), (ii), and (vi) [less and
except an amount equal to letter of credit obligations outside of
this Credit Agreement secured by inventory] and (vii), (ii)
inventory which fails to meet standards for sale or use imposed
by Governmental Authorities; and (iii) inventory which is not
useable or saleable at prices approximating their cost (after
taking into account, without duplication, the amount of any
reserves for obsolescence, unsaleability or decline in value).
"Eligible Receivables" means, at any time, the aggregate book
value of all Receivables, owned by or owing to the Borrower and its
Subsidiaries, but excluding in any event (i) Receivables subject to
a Lien to any Person other than the Lenders to secure Obligations
hereunder, (ii) Receivables which are outstanding more than 90 days
from the due date of the original invoice, (iii) Receivables
evidenced by notes, chattel paper or other instruments, (iv) all
Receivables of each account debtor with respect to which (A) such
account debtor is not solvent or is the subject of any bankruptcy
or insolvency proceedings of any kind or (B) such account debtor is
the United States or any department, agency or instrumentality of
the United States, unless all filings have been made under the
Federal Assignment of Claims Act or comparable state or other
statute as may be required by Required Lenders with respect
thereto, (v) Receivables which are presently subject to
counterclaim, dispute or other defense to payment and (vi)
Receivables arising out of transactions with Affiliates.
"Environmental Laws" means any and all lawful and applicable
Federal, state, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to
emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes into the environment including,
without limitation, ambient air, surface water, ground water, or
land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or
handling of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes.
"Equity Transaction" means, with respect to the Borrower or
any of its Subsidiaries, any issuance of shares of its capital
stock or other equity interest; provided that any Equity
Transaction shall not include any such issuance to the Borrower
or its Subsidiaries.
"ERISA" means the Employee Retirement Income Security Act of
l974, as amended from time to time and any rule or regulation
issued thereunder.
"ERISA Affiliate" means an entity which is under common control
with any Credit Party within the meaning of Section 4001(a)(14) of
ERISA, or is a member of a group which includes the Borrower and
which is treated as a single employer under Sections 414(b) or (c)
of the Code.
"ERISA Event" means (i) with respect to any Plan, the occurrence
of a Reportable Event or the substantial cessation of operations
(within the meaning of Section 4062(e) of ERISA); (ii) the
withdrawal by the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate from a Multiple Employer Plan during a plan year in
which it was a substantial employer (as such term is defined in
Section 4001(a)(2) of ERISA), or the termination of a Multiple
Employer Plan; (iii) the distribution of a notice of intent to
terminate or the actual termination of a Plan pursuant to Section
4041(a)(2) or 4041A of ERISA; (iv) the institution of proceedings
to terminate or the actual termination of a Plan by the PBGC under
Section 4042 of ERISA; (v) any event or condition which might
constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Plan; (vi)
the complete or partial withdrawal of the Borrower, any Subsidiary
of the Borrower or any ERISA Affiliate from a Multiemployer Plan;
(vii) the conditions for imposition of a lien under Section 302(f)
of ERISA exist with respect to any Plan; or (vii) the adoption of
an amendment to any Plan requiring the provision of security to
such Plan pursuant to Section 307 of ERISA.
"Eurodollar Loan" means any Loan bearing interest at a rate
determined by reference to the Eurodollar Base Rate.
"Eurodollar Base Rate" means, for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate
determined pursuant to the following formula:
Eurodollar Base Rate = Interbank Offered Rate
----------------------
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as such regulation may be
amended from time to time or any successor regulation, as the
maximum reserve requirement (including, without limitation, any
basic, supplemental, emergency, special, or marginal reserves)
applicable with respect to Eurocurrency liabilities as that term is
defined in Regulation D (or against any other category of
liabilities that includes deposits by reference to which the
interest rate of Eurodollar Loans is determined), whether or not
any Lender has any Eurocurrency liabilities subject to such reserve
requirement at that time. Eurodollar Loans shall be deemed to
constitute Eurocurrency liabilities and as such shall be deemed
subject to reserve requirements without benefits of credits for
proration, exceptions or offsets that may be available from time to
time to a Lender. The Eurodollar Base Rate shall be adjusted
automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Extension of Credit" means, as to any Lender, the making of,
or participation in, a Loan by such Lender or the issuance or
extension of, or participation in, a Letter of Credit.
"Facility Fee" shall have the meaning given such term in
Section 2.4.2.
"Federal Funds Effective Rate" means, for any period, a
fluctuating interest rate per annum (rounded upwards, if
necessary, to the nearest whole multiple of 1/100 of 1%) equal
for each day during such period to (i) the weighted average of
the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day,
for the preceding Business Day) by the Federal Reserve Bank of
New York; or (ii) if such rate is not so published for any day
which is a Business Day, the average of the quotations at
approximately 10 a.m. (Dallas, Texas time) for such day on such
transactions received by the Agent from three federal funds
brokers of recognized standing selected by the Agent.
"Floating Rate" means, for any day, a rate per annum equal
to the Alternate Base Rate.
"Floating Rate Loan" means a Loan which bears interest at
the Floating Rate.
"Foreign Credit Party" means a Credit Party which is not a
Domestic Credit Party.
"Foreign Subsidiary" means a Subsidiary which is not a
Domestic Subsidiary.
"Funded Debt" means, with respect to any Person, without
duplication, (i) all Indebtedness of such Person for borrowed
money, (ii) all purchase money Indebtedness of such Person,
including without limitation the principal portion of all
obligations of such Person under Capitalized Leases, (iii) all
Guaranty Obligations of such Person with respect to Funded Debt of
another Person, (iv) the maximum available amount of all standby
letters of credit or acceptances issued or created for the account
of such Person, (v) all Funded Debt of another Person secured by a
Lien on any Property of such Person, whether or not such Funded
Debt has been assumed, provided that for purposes hereof the amount
of such Funded Debt shall be limited to the greater of (A) the
amount of such Funded Debt as to which there is recourse to such
Person and (B) the fair market value of the property which is
subject to the Lien, (vi) the outstanding Attributed Principal
Amount under any Securitization Transaction, and (vii) the
principal balance outstanding under any synthetic lease, tax
retention operating lease, off-balance sheet loan or similar off-
balance sheet financing product to which such Person is a party,
where such transaction is considered borrowed money indebtedness
for tax purposes but is classified as an operating lease in
accordance with GAAP. The Funded Debt of any Person shall include
the Funded Debt of any partnership or joint venture in which such
Person is a general partner or joint venturer, but only to the
extent to which there is recourse to such Person for the payment of
such Funded Debt.
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to the
terms of Section 1.3 hereof.
"Governmental Authority" means any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guaranteed Obligations" means, as to each Guarantor, without
duplication, (i) all obligations of the Borrower to the Lenders
and the Agent , whenever arising, under this Agreement , the
Notes or the Loan Documents relating to the Obligations
hereunder, and (ii) all liabilities and obligations, whenever
arising, owing from the Borrower to any Lender, or any Affiliate
of a Lender, arising under any Hedging Agreement relating to
Loans or Obligations hereunder.
"Guarantor" means the Borrower and each of those other Persons
identified as a "Guarantor" on the signature pages hereto, and each
Additional Credit Party which may hereafter execute a Joinder
Agreement, together with their successors and permitted assigns.
"Guaranty Obligations" means, with respect to any Person,
without duplication, any obligations of such Person (other than
endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) guaranteeing or intended to
guarantee any Indebtedness of any other Person in any manner,
whether direct or indirect, and including without limitation any
obligation, whether or not contingent, (i) to purchase any such
Indebtedness or any Property constituting security therefor, (ii)
to advance or provide funds or other support for the payment or
purchase of any such Indebtedness or to maintain working capital,
solvency or other balance sheet condition of such other Person
(including without limitation keep well agreements, maintenance
agreements, comfort letters or similar agreements or arrangements)
for the benefit of any holder of Indebtedness of such other Person,
(iii) to lease or purchase Property, securities or services
primarily for the purpose of assuring the holder of such
Indebtedness, or (iv) to otherwise assure or hold harmless the
holder of such Indebtedness against loss in respect thereof. The
amount of any Guaranty Obligation hereunder shall (subject to any
limitations set forth therein) be deemed to be an amount equal to
the outstanding principal amount (or maximum principal amount, if
larger) of the Indebtedness in respect of which such Guaranty
Obligation is made.
"Hedging Agreements" means any interest rate protection
agreement or foreign currency exchange agreement between the
Borrower and any Lender, or any Affiliate of a Lender.
"Indebtedness" of any Person means (i) all obligations of such
Person for borrowed money, (ii) all obligations of such Person
evidenced by bonds, debentures, notes or similar instruments, or
upon which interest payments are customarily made, (iii) all
obligations of such Person under conditional sale or other title
retention agreements relating to Property purchased by such Person
(other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of
business), (iv) all obligations of such Person issued or assumed as
the deferred purchase price of Property or services purchased by
such Person (other than trade debt incurred in the ordinary course
of business and due within six months of the incurrence thereof)
which would appear as liabilities on a balance sheet of such
Person, (v) all obligations of such Person under take-or-pay or
similar arrangements or under commodities agreements, (vi) all
Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on, or payable out of the proceeds of
production from, Property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed, provided
that for purposes hereof the amount of such Indebtedness shall be
limited to the greater of (A) the amount of such Indebtedness as to
which there is recourse to such Person and (B) the fair market
value of the property which is subject to the Lien, (vii) all
Guaranty Obligations of such Person, (viii) the principal portion
of all obligations of such Person under Capitalized Leases, (ix)
the net liabilities in respect of Rate Hedging Obligations having a
term in excess of one year from the date of the creation thereof,
to the extent that the aggregate amount of such net liabilities
exceeds $5,000,000, (x) the maximum amount of all standby letters
of credit issued or bankers' acceptances facilities created for the
account of such Person and, without duplication, all drafts drawn
thereunder (to the extent unreimbursed), (xi) all preferred stock
issued by such Person and required by the terms thereof to be
redeemed, or for which mandatory sinking fund payments are due, by
a fixed date, (xii) the outstanding Attributed Principal Amount
under any Securitization Financing and (xiii) the principal balance
outstanding under any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet
financing product to which such Person is a party, where such
transaction is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease in accordance with
GAAP. The Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture in which such
Person is a general partner or a joint venturer, but only to the
extent to which there is recourse to such Person for payment of
such Indebtedness.
"Interbank Offered Rate" means, for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate
(rounded upwards, if necessary, to the nearest whole multiple of
1/100 of 1%) equal to the rate of interest, determined by the Agent
on the basis of the offered rates for deposits in dollars for a
period of time corresponding to such Interest Period (and
commencing on the first day of such Interest Period), appearing on
Telerate Page 3750 (or, if, for any reason, Telerate Page 3750 is
not available, the Reuters Screen LIBO Page) as of approximately
11:00 A.M. (London time) two (2) Business Days before the first day
of such Interest Period. As used herein, "Telerate Page 3750"
means the display designated as page 3750 by Dow Jones Telerate,
Inc. (or such other page as may replace such page on that service
for the purpose of displaying the British Bankers Association
London interbank offered rates) and "Reuters Screen LIBO Page"
means the display designated as page "LIBO" on the Reuters Monitor
Money Rates Service (or such other page as may replace the LIBO
page on that service for the purpose of displaying London interbank
offered rates of major banks).
"Interest Period" means, with respect to a Eurodollar
Revolving Loan, a period of one, two, three or six months, and if
available from all of the Lenders, nine or twelve months, in each
case commencing on a Business Day selected by the Borrower
pursuant to this Agreement. Such Eurodollar Interest Period
shall end on (but exclude) the day which corresponds numerically
to such date of commencement one, two, three, six, nine or twelve
months thereafter, provided, however, that if there is no such
numerically corresponding day in such next, second, third, sixth,
ninth or twelfth succeeding month, such Eurodollar Interest
Period shall end on the last Business Day of such next, second,
third, sixth, ninth or twelfth succeeding month. If a Eurodollar
Interest Period would otherwise end on a day which is not a
Business Day, such Eurodollar Interest Period shall end on the
next succeeding Business Day, provided, however, that if said
next succeeding Business Day falls in a new month, such
Eurodollar Interest Period shall end on the immediately preceding
Business Day.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees
made in the ordinary course of business), extension of credit
(other than accounts receivable, notes receivable and prepaid
expenses arising in the ordinary course of business on terms
customary in the trade), deposit account or contribution of
capital by such Person to any other Person or any investment in,
or purchase or other acquisition of, the stock, partnership
interests, joint venture interests, notes, debentures or other
securities of any other Person made by such Person.
"Issuing Lender" means The Boatmen's National Bank of St.
Louis and any other Lender as the Borrower may request (and such
Lender may agree), and their respective successors and assigns.
"Issuing Lender's Fees" shall have the meaning given such term
in Section 2.4.3(iii).
"Joinder Agreement" means a Joinder Agreement substantially in
the form of Exhibit G hereto, executed and delivered by a Guarantor
after the Closing Date in accordance with the provisions of Section
6.23.
"Lenders" means the financial institutions listed on the
signature pages of this Agreement and their respective successors
and assigns.
"Lending Installation" means any office, branch, subsidiary
or affiliate of any Lender or the Agent.
"Letter of Credit" means any letter of credit issued by the
Issuing Lender for the account of the Borrower in accordance with
the terms of Section 2.3.
"Letter of Credit Fee" shall have the meaning given such term in
Section 2.4.3.
"Lien" means any lien (statutory or other), mortgage,
pledge, hypothecation, assignment, deposit arrangement,
encumbrance or preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever
(including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other
title retention agreement).
"Loan" means, with respect to a Lender, such Lender's
portion, if any, of any Extension of Credit.
"Loan Documents" means this Agreement, the Notes, the LOC
Documents and the Sharing Agreement, and each Joinder Agreement.
"LOC Commitment" means the commitment of the Issuing Lender to
issue, and to honor payment obligations under, Letters of Credit
hereunder and with respect to each other Lender, the commitment
of such other Lender to purchase participation interests in the
Letters of Credit up to such Lender's LOC Committed Amount as
specified in Schedule 2.2.1, as such amount may be reduced from
time to time in accordance with the provisions hereof.
"LOC Committed Amount" means, collectively, the aggregate
amount of all of the LOC Commitments of the Lenders to issue and
participate in Letters of Credit as referenced in Section 2.3(a)
and, individually, the amount of each Lender's LOC Commitment as
specified in Schedule 2.2.1.
"LOC Documents" means, with respect to any Letter of Credit,
such Letter of Credit, any amendments thereto, any documents
delivered in connection therewith, any application therefor, and
any agreements, instruments, guarantees or other documents (whether
general in application or applicable only to such Letter of Credit)
governing or providing for (i) the rights and obligations of the
parties concerned or at risk or (ii) any collateral security for
such obligations.
"LOC Obligations" means, at any time, the sum of (i) the maximum
amount which is, or at any time thereafter may become, available to
be drawn under Letters of Credit then outstanding, assuming
compliance with all requirements for drawings referred to in such
Letters of Credit plus (ii) the aggregate amount of all drawings
under Letters of Credit honored by the Issuing Lender but not
theretofore reimbursed.
"Material Adverse Effect" means a material adverse effect on
(i) the business, Property, condition (financial or otherwise),
results of operations, or prospects of the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the Credit
Parties, as a group, to perform their obligations under the Loan
Documents, or (iii) the validity or enforceability of any of the
Loan Documents or the rights or remedies of the Agent or the
Lenders thereunder.
"Materials of Environmental Concern" means any gasoline or
petroleum (including crude oil or any fraction thereof) or
petroleum products or any hazardous or toxic substances, materials
or wastes, defined or regulated as such in or under any
Environmental Laws, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a Plan maintained pursuant to a
collective bargaining agreement or any other arrangement to which
the Borrower or any member of the Controlled Group is a party to
which more than one employer is obligated to make contributions.
"Multiple Employer Plan" means a Plan which the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate and at least one
employer other than the Borrower, any Subsidiary of the Borrower or
any ERISA Affiliate are contributing sponsors.
"Net Proceeds" means gross cash proceeds (including any cash
received by way of deferred payment pursuant to a promissory
note, receivable or otherwise, but only as and when received)
received in connection with an Equity Transaction net of (i)
reasonable transaction costs, including underwriting discounts
and commissions, and (ii) estimated taxes payable in connection
therewith.
"Notice of Assignment" is defined in Section 12.3.2.
"Notes" means the Revolving Notes; and "Note" means any one
of the Notes.
"Obligations" means, collectively, the Revolving Loans and the
LOC Obligations.
"PBGC" means the Pension Benefit Guaranty Corporation, or
any successor thereto.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the first day of each March, June,
September, and December.
"Person" means any natural person, corporation, firm, joint
venture, partnership, association, enterprise, trust or other
entity or organization, or any government or political
subdivision or any agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code as to which the Borrower
or any member of the Controlled Group may have any liability.
"Pro Forma Basis" means, with respect to any transaction, that
such transaction shall be deemed to have occurred as of the first
day of the four fiscal-quarter period ending as of the most recent
fiscal quarter end preceding the date of such transaction with
respect to which the Agent and the Lenders have received the
officer's certificate in accordance with the provisions of Section
6.2(ii). As used herein, "Transaction" means (i) the incurrence of
Funded Debt in accordance with the provisions of Section 6.11(vi),
and (ii) any corporate merger or consolidation as referred to in
Section 6.12 and any Acquisition referred to in Section 6.14.
"Property" of a Person means any and all property, whether
real, personal, tangible, intangible, or mixed, of such Person,
or other assets owned, leased or operated by such Person.
"Purchasers" is defined in Section 12.3.1.
"Rate Hedging Obligations" of a Person means any and all
obligations of such Person, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and
substitutions therefor), under (i) any and all agreements,
devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, exchange
rates or forward rates applicable to such party's assets,
liabilities or exchange transactions, including, but not limited
to, dollar-denominated or cross-currency interest rate exchange
agreements, forward currency exchange agreements, interest rate
cap or collar protection agreements, forward rate currency or
interest rate options, puts and warrants, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments
of any of the foregoing.
"Receivables" means any right of payment from or on behalf of
any obligor, whether constituting an account, chattel paper,
instrument, general intangible or otherwise, arising from the
sale by the Borrower or any of its Subsidiaries of merchandise or
services, and monies due thereunder, security in the merchandise
and services financed thereby, records related thereto, and the
right to payment of any interest or finance charges and other
obligations with respect thereto, proceeds from claims on
insurance policies related thereto, any other proceeds related
thereto, and any other related rights.
"Receivables Financier" means, in connection with a
Securitization Transaction, the Person which provides financing
for such transaction whether by purchase, loan or otherwise in
respect of Receivables.
"Regulation D" means Regulation D of the Board of Governors
of the Federal Reserve System from time to time in effect and
shall include any successor or other regulation or official
interpretation of said Board of Governors relating to reserve
requirements applicable to member banks of the Federal Reserve
System.
"Regulations U and X" means Regulations U and X of the Board
of Governors of the Federal Reserve System from time to time in
effect and shall include any successor or other regulations or
official interpretations of said Board of Governors relating to
the extension of credit by banks for the purpose of purchasing or
carrying margin stocks applicable to member banks of the Federal
Reserve System.
"Reportable Event" means a reportable event as defined in
Section 4043 of ERISA and the regulations issued under such
section, with respect to a Plan, excluding, however, such events
as to which the PBGC by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided, however, that a failure
to meet the minimum funding standard of Section 412 of the Code
and of Section 302 of ERISA shall be a Reportable Event
regardless of the issuance of any such waiver of the notice
requirement in accordance with either Section 4043(a) of ERISA or
Section 412(d) of the Code.
"Required Lenders" means, at any time, Lenders having more
than sixty percent (60%) of the Commitments, or if the
Commitments have been terminated, Lenders having more than sixty
percent (60%) of the aggregate principal amount of the
Obligations outstanding (taking into account in each case
Participation Interests or obligation to participate therein);
provided that the Commitments of, and outstanding principal
amount of Obligations (taking into account Participation
Interests therein) owing to, a Defaulting Lender shall be
excluded for purposes hereof in making a determination of
Required Lenders.
"Requirement of Law" means, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation
or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person
or any of its material property is subject.
"Responsible Officer" means the Chief Financial Officer, the
Controller, any Vice President and the Treasurer.
"Restricted Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any
class of stock now or hereafter outstanding, except (A) a dividend
payable solely in shares of that class to the holders of that class
and (B) dividends and other distributions payable to a Credit
Party, (ii) any redemption, retirement, sinking fund or similar
payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of stock now or hereafter
outstanding, and (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of stock now or hereafter outstanding.
"Revolving Borrowing Notice" shall have the meaning assigned to
such term in Section 2.2.3.
"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans in an aggregate
principal amount at any time outstanding of up to such Lender's
Revolving Commitment Percentage of the Aggregate Commitment as
specified in Schedule 2.2.1, as such amount may be reduced from
time to time in accordance with the provisions hereof.
"Revolving Commitment Percentage" means, for each Lender, a
fraction (expressed as a decimal) the numerator of which is the
Revolving Commitment of such Lender at such time and the
denominator of which is the aggregate Revolving Committed Amount
at such time. The initial Revolving Commitment Percentages are
set out on Schedule 2.2.1.
"Revolving Committed Amount" means, collectively, the
aggregate amount of all of the Revolving Commitments as
referenced in Section 2.2.1 and, individually, the amount of each
Lender's Revolving Commitment as specified in Schedule 2.2.1.
"Revolving Loans" shall have the meaning assigned to such term
in Section 2.2.1.
"Revolving Note" or "Revolving Notes" means the promissory
notes of the Borrower in favor of each of the Lenders evidencing
the Revolving Loans in substantially the form attached as
Schedule 2.2.1, individually or collectively, as appropriate, as
such promissory notes may be amended, modified, supplemented,
extended, renewed or replaced from time to time.
"S&P" means Standard & Poors Corporation.
"Section" means a numbered section of this Agreement, unless
another document is specifically referenced.
"Securitization Transaction" means any financing transaction
or series of financing transactions that have been or may be
entered into by the Borrower or any of its Subsidiaries pursuant
to which the Borrower or any such Subsidiary may sell, convey or
otherwise transfer to (i) a Subsidiary or affiliate, or (ii) any
other Person, or may grant a security interest in, any
Receivables or interests therein secured by merchandise or
services financed thereby (whether such Receivables are then
existing or arising in the future) of the Borrower or any such
Subsidiary, and any assets related thereto, including without
limitation, all security interests in merchandise or services
financed thereby, the proceeds of such Receivables, and other
assets which are customarily sold or in respect of which security
interests are customarily granted in connection with
securitization transactions involving such assets.
"Sharing Agreement" means such term as defined in Section
10.12.
"Single Employer Plan" means a Plan maintained by the
Borrower or any member of the Controlled Group for employees of
the Borrower or any member of the Controlled Group.
"Subsidiary" of a Person means (i) any corporation more than
50% of the outstanding securities having ordinary voting power of
which shall at the time be owned or controlled, directly or
indirectly, by such Person or by one or more of its Subsidiaries
or by such Person and one or more of its Subsidiaries, (ii) any
partnership, association, joint venture or similar business
organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or
controlled, or (iii) any other entity the accounts of which would
be consolidated with those of such Person in such Person's
consolidated financial statements. Unless otherwise expressly
provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of
the Borrower and its Subsidiaries, Property which (i) in any
fiscal year represents more than 10% of the consolidated assets
of the Borrower and its Subsidiaries as of the date of the most
recent annual financial statements delivered in accordance with
Section 6.1(i), or (ii) is responsible for more than (a) 10%, of
the consolidated net sales or (b) 10% of the consolidated net
income of the Borrower and its Subsidiaries, in each case as
reflected in the financial statements referred to in clause (i)
above.
"Termination Date" means the date three (3) years from the
Closing Date or such later date as extended, if extended, in
accordance with Section 2.6.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Loan, its nature as a
Floating Rate Loan or Eurodollar Loan.
"Unfunded Liabilities" means the amount (if any) by which
the present value of all vested nonforfeitable benefits under all
Single Employer Plans exceeds the fair market value of all such
Plan assets allocable to such benefits, all determined as of the
then most recent valuation date for such Plans.
"Unmatured Default" means an event which but for the lapse
of time or the giving of notice, or both, would constitute a
Default.
The foregoing definitions shall be equally applicable to
both the singular and plural forms of the defined terms.
1.2 Computation of Time Periods.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each
mean "to but excluding."
1.3 Accounting Terms.
Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be
delivered to the Lenders hereunder shall be prepared, in accordance
with GAAP applied on a consistent basis. All calculations made for
the purposes of determining compliance with this Agreement shall
(except as otherwise expressly provided herein) be made by
application of GAAP applied on a basis consistent with the most
recent annual or quarterly financial statements delivered pursuant to
Section 6.1 hereof (or, prior to the delivery of the first financial
statements pursuant to Section 6.1 hereof, consistent with the annual
audited financial statements referenced in Section 5.4); provided,
however, if (a) the Borrower shall object to determining such
compliance on such basis at the time of delivery of such financial
statements due to any change in GAAP or the rules promulgated with
respect thereto or (b) the Agent or the Required Lenders shall so
object in writing within 30 days after delivery of such financial
statements, then such calculations shall be made on a basis
consistent with the most recent financial statements delivered by the
Borrower to the Lenders as to which no such objection shall have been
made.
ARTICLE II
THE FACILITY
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2.1. The Facility.
2.1.1. Description of Facility.
The Lenders grant to the Borrower a revolving credit facility
pursuant to which, and upon the terms and subject to the
conditions herein set out:
(i) each Lender severally agrees to make Revolving
Loans in U.S. Dollars to the Borrower in
accordance with Section 2.2;
(ii) the Issuing Lender agrees to issue, and the
Lenders agree to participate in, Letters of Credit
in U.S. Dollars for the account of the Borrower in
accordance with Section 2.3; and
(iii) in no event may the aggregate amount of
Obligations outstanding at any time exceed the
lesser of (a) the Aggregate Commitment and (b) the
Borrowing Base.
2.1.2. Availability of Facility; Required Payments.
Subject to the terms and conditions set forth in this
Agreement, the facility is available from each Lender from the
date of this Agreement to the Termination Date, and the Borrower
may borrow, repay and reborrow from each Lender at any time prior
to the Termination Date. The Commitment of each Lender to make
Extensions of Credit hereunder shall expire on the Termination
Date. All outstanding Loans and all other unpaid Obligations
owing to each Lender shall be paid in full by the Borrower on the
Termination Date.
2.2. Revolving Loans.
2.2.1. Revolving Loans.
During the Commitment Period, subject to the terms and
conditions hereof, each Lender severally agrees to make revolving
credit loans (the "Revolving Loans") to the Borrower from time to
time in the amount of such Lender's Revolving Commitment
Percentage of each such Revolving Loan for the purposes
hereinafter set forth; provided that (i) with regard to the
Lenders collectively, the aggregate principal amount of
Obligations outstanding at any time shall not exceed the lesser
of (A) ONE HUNDRED FIFTY-FIVE MILLION DOLLARS ($155,000,000) (as
referenced in Schedule 2.2.1, the "Revolving Committed Amount")
or (B) the Borrowing Base, and (ii) with regard to each Lender
individually, such Lender's Revolving Commitment Percentage of
Obligations outstanding at any time shall not exceed such
Lender's Revolving Committed Amount. The Revolving Loans shall
be evidenced by the Revolving Notes and shall be repaid as
provided by the terms of Section 2.1.2.
2.2.2. Types of Revolving Loans.
The Revolving Loans may be Floating Rate Loans or Eurodollar
Loans, or a combination thereof, selected by the Borrower in
accordance with Sections 2.2.3 and 2.2.4. The Borrower will be
limited to a maximum number of twenty (20) Eurodollar Loans
outstanding at any time. For purposes hereof, Eurodollar Loans
with separate or different Interest Periods will be considered as
separate Eurodollar Loans even if their Interest Periods expire
on the same date.
2.2.3. Method of Selecting Types and Interest Periods for
New Revolving Loans.
The Borrower shall select the Type of Loan and, in the case of
each Eurodollar Loan, the Interest Period applicable to each
Revolving Loan from time to time. The Borrower shall give the
Agent irrevocable notice (a "Revolving Borrowing Notice") not
later than 11:00 a.m. (Dallas, Texas time) on the Borrowing Date
of each Floating Rate Loan, and three Business Days before the
Borrowing Date for each Eurodollar Loan. A Revolving Borrowing
Notice shall specify:
(i) the Borrowing Date, which shall be a Business Day,
of such Revolving Loan;
(ii) the aggregate amount of such Revolving Loan;
(iii) the Type of Revolving Loan selected; and
(iv) in the case of each Eurodollar Loan, the Interest
Period applicable thereto (which Interest Period
shall not extend beyond the Termination Date).
If the Borrower shall fail to specify in any such Revolving
Borrowing Notice, (A) an applicable Interest Period in the case
of a Eurodollar Loan, then such notice shall be deemed to be a
request for an Interest Period of one month, or (B) the type of
Revolving Loan requested, then such notice shall be deemed to be
a request for a Floating Rate Loan. The Agent shall give notice
to each Lender promptly upon receipt of each Revolving Borrowing
Notice pursuant to this Section 2.2, the contents thereof and
each such Lender's share of any advance in connection therewith.
2.2.4. Conversion and Continuation of Outstanding Revolving
Loans.
Floating Rate Loans shall continue as Floating Rate Loans
unless and until such Floating Rate Loans are converted into
Eurodollar Loans. Each Eurodollar Loan shall continue as a
Eurodollar Loan until the end of the then applicable Interest
Period therefor, at which time such Eurodollar Loan shall be
automatically converted into a Floating Rate Loan unless the
Borrower shall have given the Agent a Conversion/Continuation
Notice requesting that, at the end of such Interest Period, such
Eurodollar Loan continue as a Eurodollar Loan for the same or
another Interest Period in accordance with the provisions hereof.
Subject to the terms of Section 4.2, the Borrower shall have the
option, on any Business Day, to extend existing Eurodollar Loans
into a subsequent Interest Period or to convert Revolving Loans
into Loans of a different type; provided that (i) except as
provided in Section 3.6, Eurodollar Loans may be converted into
Floating Rate Loans only on the last day of the Interest Period
applicable thereto, (ii) Eurodollar Loans may be extended, and
Floating Rate Loans may be converted into Eurodollar Loans, only
if no Default or Unmatured Default is in existence on the date of
extension or conversion, (iii) Revolving Loans extended as, or
converted into, Eurodollar Loans shall be subject to the terms of
the definition of "Interest Period" and shall be in such minimum
amounts provided in Section 2.5.2, and (iv) any request for
extension or conversion of a Eurodollar Loan which shall fail to
specify an Interest Period shall be deemed to be a request for an
Interest Period of one month. Each such extension or conversion
shall be effected by the Borrower by giving a
Conversion/Continuation Notice to the Agent prior to 11:00 a.m.
(Dallas, Texas time) on the Business Day thereof, in the case of
Floating Rate Loans, and on the third Business Day prior to the
date of the requested extension or conversion, in the case of
Eurodollar Loans, specifying the date of the proposed extension
or conversion, the Loans to be extended or converted, the types
of Loans into which such Loans are to be converted and, if
appropriate, the applicable Interest Periods with respect
thereto. Each such request shall be irrevocable and shall
constitute a representation and warranty by the Borrower of the
matters specified in Section 4.2. In the event that the Borrower
fails to request extension or conversion of any Eurodollar Loan
in accordance with this Section, or any such conversion or
extension is not permitted or required by this Section, then such
Eurodollar Loan shall be automatically converted into a Floating
Rate Loan at the end of the Interest Period applicable thereto.
The Agent will give notice as promptly as practicable of any such
proposed extension or conversion affecting any Loan.
2.2.5. Interest.
Subject to the provisions of Section 2.5.5,
(i) Floating Rate Loans. During such periods as
Revolving Loans shall be comprised in whole or in part of
Floating Rate Loans, such Floating Rate Loans shall bear
interest at a per annum rate equal to the Alternate Base
Rate plus the Applicable Percentage; and
(ii) Eurodollar Loans. During such periods as
Revolving Loans shall be comprised in whole or in part of
Eurodollar Loans, such Eurodollar Loans shall bear interest
at a per annum rate equal to the Eurodollar Base Rate plus
the Applicable Percentage.
Interest on Revolving Loans shall be payable in arrears
as provided in Section 2.5.6.
2.3. Letter of Credit Subfacility.
2.3.1. Issuance.
During the period from the Closing Date to but not including
the date which is three days prior to the Termination Date, subject
to the terms and conditions hereof and of the LOC Documents, if
any, and such other terms and conditions which the Issuing Lender
may reasonably require, the Issuing Lender shall issue, and the
Lenders shall participate in, such Letters of Credit as the
Borrower may request for its own account or for the account of a
Subsidiary as provided herein, in a form acceptable to the Issuing
Lender, for the purposes hereinafter set forth; provided that (i)
the aggregate amount of LOC Obligations shall not exceed ONE
HUNDRED FIFTY-FIVE MILLION DOLLARS ($155,000,000) at any time (the
"LOC Committed Amount"), (ii) with regard to the Lenders
collectively, the aggregate principal amount of Obligations
outstanding at any time shall not exceed the lesser of (A) the
Aggregate Commitment or (B) the Borrowing Base, and (iii) with
regard to each Lender individually, such Lender's Revolving
Commitment Percentage of Obligations outstanding at any time shall
not exceed such Lender's Revolving Committed Amount. Letters of
Credit issued hereunder shall not have an original expiry date more
than one year, in the case of standby letters of credit, or more
than 210 days, in the case of commercial letters of credit, from
the date of issuance or extension, nor an expiry date, whether as
originally issued or by extension, extending beyond the date two
Business Days prior to the Termination Date. Each Letter of Credit
shall comply with the related LOC Documents. The issuance date of
each Letter of Credit shall be a Business Day.
2.3.2. Notice and Reports.
Except for those standby Letters of Credit described on
Schedule 2.3.2-1 which shall be issued on the Closing Date, the
request for the issuance of a Letter of Credit shall be submitted
by the Borrower to the Issuing Lender and the Agent at least three
(3) Business Days prior to the requested date of issuance (or such
shorter period as may be agreed by the Issuing Lender. A form of
Notice of Request for standby Letter of Credit is attached as
Schedule 2.3.2-2. The Issuing Lender will provide to the Agent
at least monthly, and more frequently upon request, a detailed
summary report on its Letters of Credit and the activity thereon,
in form and substance acceptable to the Agent. In addition, the
Issuing Lender will provide to the Agent for dissemination to the
Lenders at least quarterly, and more frequently upon request, a
detailed summary report on its Letters of Credit and the activity
thereon, including, among other things, the Credit Party for
whose account the Letter of Credit is issued, the beneficiary,
the face amount, and the expiry date. The Issuing Lender will
provide copies of the Letters of Credit to the Agent and the
Lenders promptly upon request.
2.3.3. Participation.
Each Lender, upon issuance of a Letter of Credit, shall be
deemed to have purchased without recourse a risk participation from
the applicable Issuing Lender in such Letter of Credit and the
obligations arising thereunder, in each case in an amount equal to
its pro rata share of the obligations under such Letter of Credit
(based on the respective Commitment Percentages of the Lenders) and
shall absolutely, unconditionally and irrevocably assume, as
primary obligor and not as surety, and be obligated to pay to the
Issuing Lender therefor and discharge when due, its pro rata share
of the obligations arising under such Letter of Credit. Without
limiting the scope and nature of each Lender's participation in any
Letter of Credit, to the extent that the Issuing Lender has not
been reimbursed as required hereunder or under any such Letter of
Credit, each such Lender shall pay to the Issuing Lender its pro
rata share of such unreimbursed drawing in same day funds on the
day of notification (or such later date as set forth under
subsection 2.3.4) by the Issuing Lender of an unreimbursed drawing
pursuant to the provisions of subsection 2.3.4 hereof. The
obligation of each Lender to so reimburse the Issuing Lender shall
be absolute and unconditional and shall not be affected by the
occurrence of a Default, an Unmatured Default or any other
occurrence or event. Any such reimbursement shall not relieve or
otherwise impair the obligation of the Borrower to reimburse the
Issuing Lender under any Letter of Credit, together with interest
as hereinafter provided.
2.3.4. Reimbursement.
In the event of any drawing under any Letter of Credit, the
Issuing Lender will promptly notify the Borrower. The Borrower
will reimburse the Issuing Lender on the date of drawing as
provided herein, unless the Borrower shall immediately notify the
Issuing Lender and the Agent that the Borrower intends to otherwise
reimburse the Issuing Lender for such drawing or the Borrower shall
request that the Lenders make a Revolving Loan in the amount of the
drawing as provided in Section 2.3.5 hereof on the related Letter
of Credit, the proceeds of which will be used to satisfy the
related reimbursement obligations. The Borrower promises to
reimburse the Issuing Lender on the day of drawing under any Letter
of Credit (either with the proceeds of a Revolving Loan obtained
hereunder or otherwise) in same day funds. If the Borrower shall
fail to reimburse the Issuing Lender as provided hereinabove, the
Issuing Lender may request of the Agent that a Revolving Loan be
made in the amount of the unreimbursed drawing, and the
unreimbursed amount of such drawing shall bear interest at a per
annum rate equal to the Alternate Base Rate plus the sum of (i) the
Applicable Percentage and (ii) two percent (2%). The Borrower's
reimbursement obligations hereunder shall be absolute and
unconditional under all circumstances irrespective of any rights of
setoff, counterclaim or defense to payment the Borrower may claim
or have against the Issuing Lender, the Agent, the Lenders, the
beneficiary of the Letter of Credit drawn upon or any other Person,
including without limitation any defense based on any failure of
the Borrower or any other Credit Party to receive consideration or
the legality, validity, regularity or unenforceability of the
Letter of Credit. The Issuing Lender will promptly notify the
Agent of the amount of any unreimbursed drawing and the Agent will
give notice to each Lender to promptly pay to the Agent for the
account of the Issuing Lender in Dollars and in immediately
available funds, the amount of such Lender's pro rata share of such
unreimbursed drawing. Such payment shall be made on the day such
notice is received by such Lender from the Agent if such notice is
received at or before 1:00 P.M. (Dallas, Texas time) otherwise such
payment shall be made at or before 12:00 Noon (Dallas, Texas time)
on the Business Day next succeeding the day such notice is
received. If such Lender does not pay such amount to the Agent for
the Issuing Lender in full upon such request, such Lender shall, on
demand, pay to the Agent for the account of the Issuing Lender
interest on the unpaid amount during the period from the date of
such drawing until such Lender pays such amount to the Issuing
Lender in full at a rate per annum equal to, if paid within two (2)
Business Days of the date that such Lender is required to make
payments of such amount pursuant to the preceding sentence, the
Federal Funds Effective Rate and thereafter at a rate equal to the
Alternate Base Rate. Each Lender's obligation to make such payment
to the Issuing Lender, and the right of the Issuing Lender to
receive the same, shall be absolute and unconditional, shall not be
affected by any circumstance whatsoever and without regard to the
termination of this Agreement or the Commitments hereunder, the
existence of a Default or Unmatured Default or the acceleration of
the obligations of the Borrower hereunder and shall be made without
any offset, abatement, withholding or reduction whatsoever.
Simultaneously with the making of each such payment by a Lender to
the Issuing Lender, such Lender shall, automatically and without
any further action on the part of the Issuing Lender or such
Lender, acquire a participation in an amount equal to such payment
(excluding the portion of such payment constituting interest owing
to the Issuing Lender) in the related unreimbursed drawn portion of
the LOC Obligation and in the interest thereon and in the related
LOC Documents, and shall have a claim against the Borrower with
respect thereto.
2.3.5. Repayment with Revolving Loans.
On any day on which the Borrower shall have requested, or been
deemed to have requested, a Revolving Loan advance to reimburse a
drawing under a Letter of Credit, the Agent shall give notice to
the Lenders that a Revolving Loan has been requested or deemed
requested by the Borrower to be made in connection with a drawing
under a Letter of Credit, in which case a Revolving Loan advance
comprised of Floating Rate Loans (or Eurodollar Loans to the extent
the Borrower has complied with the procedures of Section 2.2.3 with
respect thereto) shall be immediately made to the Borrower by all
Lenders (notwithstanding any termination of the Commitments
pursuant to Section 8.1) pro rata based on the respective
Commitment Percentages of the Lenders (determined before giving
effect to any termination of the Commitments pursuant to Section
8.1) and the proceeds thereof shall be paid directly to the Issuing
Lender for application to the respective LOC Obligations. Each
such Lender hereby irrevocably agrees to make its pro rata share of
each such Revolving Loan immediately upon any such request or
deemed request in the amount, in the manner and on the date
specified in the preceding sentence notwithstanding (i) the amount
of such borrowing may not comply with the minimum amount for
advances of Revolving Loans otherwise required hereunder, (ii)
whether any conditions specified in Section 4.2 are then satisfied,
(iii) whether a Default or an Unmatured Default then exists, (iv)
failure for any such request or deemed request for Revolving Loan
to be made by the time otherwise required hereunder, (v) whether
the date of such borrowing is a date on which Revolving Loans are
otherwise permitted to be made hereunder or (vi) any termination of
the Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any
Revolving Loan cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect
to the Borrower or any Credit Party), then each such Lender hereby
agrees that it shall forthwith purchase (as of the date such
borrowing would otherwise have occurred, but adjusted for any
payments received from the Borrower on or after such date and prior
to such purchase) from the Issuing Lender such participation in the
outstanding LOC Obligations as shall be necessary to cause each
such Lender to share in such LOC Obligations ratably (based upon
the respective Commitment Percentages of the Lenders (determined
before giving effect to any termination of the Commitments pursuant
to Section 8.1)), provided that in the event such payment is not
made on the day of drawing (or such later date as specified in
subsection 2.3.4), such Lender shall pay in addition to the
Issuing Lender interest on the amount of its unfunded
Participation Interest at a rate equal to, if paid within two (2)
Business Days of the date of drawing, the Federal Funds Effective
Rate, and thereafter at the Alternate Base Rate.
2.3.6. Designation of other Subsidiaries as Account
Parties.
Notwithstanding anything to the contrary set forth in this
Agreement, including without limitation Section 2.3.1. hereof, a
Letter of Credit issued hereunder may contain a statement to the
effect that such Letter of Credit is issued for the account of a
Subsidiary, provided that notwithstanding such statement, the
Borrower shall be the actual account party for all purposes of this
Agreement for such Letter of Credit and such statement shall not
affect the Borrower's reimbursement obligations hereunder with
respect to such Letter of Credit.
2.3.7. Renewal, Extension.
The renewal or extension of any Letter of Credit shall, for
purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder.
2.3.8. Uniform Customs and Practices.
The Issuing Lender may have the Letters of Credit be subject
to The Uniform Customs and Practice for Documentary Credits, as
published as of the date of issue by the International Chamber of
Commerce (the "UCP"), in which case the UCP may be incorporated
therein and deemed in all respects to be a part thereof.
2.3.9. Indemnification; Nature of Issuing Lender's Duties.
(i) In addition to its other obligations under this
Section 2.3, the Borrower hereby agrees to protect, indemnify,
pay and save the Issuing Lender harmless from and against any
and all claims, demands, liabilities, damages, losses, costs,
charges and expenses (including reasonable attorneys' fees)
that the Issuing Lender may incur or be subject to as a
consequence, direct or indirect, of (A) the issuance of any
Letter of Credit or (B) the failure of the Issuing Lender to
honor a drawing under a Letter of Credit as a result of any
act or omission, whether rightful or wrongful, of any present
or future de jure or de facto government or governmental
authority (all such acts or omissions, herein called
"Government Acts").
(ii) As between the Borrower and the Issuing Lender, the
Borrower shall assume all risks of the acts, omissions or
misuse of any Letter of Credit by the beneficiary thereof.
The Issuing Lender shall not be responsible: (A) for the
form, validity, sufficiency, accuracy, genuineness or legal
effect of any document submitted by any party in connection
with the application for and issuance of any Letter of Credit,
even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (B)
for the validity or sufficiency of any instrument transferring
or assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, that may prove to be invalid or
ineffective for any reason; (C) for errors, omissions,
interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (D) for any loss or delay in
the transmission or otherwise of any document required in
order to make a drawing under a Letter of Credit or of the
proceeds thereof; and (E) for any consequences arising from
causes beyond the control of the Issuing Lender, including,
without limitation, any Government Acts. None of the above
shall affect, impair, or prevent the vesting of the Issuing
Lender's rights or powers hereunder.
(iii) In furtherance and extension and not in
limitation of the specific provisions hereinabove set
forth, any action taken or omitted by the Issuing
Lender, under or in connection with any Letter of Credit
or the related certificates, if taken or omitted in good
faith, shall not put such Issuing Lender under any
resulting liability to the Borrower or any other Credit
Party. It is the intention of the parties that this
Agreement shall be construed and applied to protect and
indemnify the Issuing Lender against any and all risks
involved in the issuance of the Letters of Credit, all
of which risks are hereby assumed by the Borrower (on
behalf of itself and each of the other Credit Parties),
including, without limitation, any and all Government
Acts. The Issuing Lender shall not, in any way, be
liable for any failure by the Issuing Lender or anyone
else to pay any drawing under any Letter of Credit as a
result of any Government Acts or any other cause beyond
the control of the Issuing Lender.
(iv) Nothing in this subsection 2.3.9 is intended
to limit the reimbursement obligations of the Borrower
contained in subsection 2.3.4 above. The obligations of
the Borrower under this subsection 2.3.9 shall survive
the termination of this Agreement. No act or omissions
of any current or prior beneficiary of a Letter of
Credit shall in any way affect or impair the rights of
the Issuing Lender to enforce any right, power or
benefit under this Agreement.
(v) Notwithstanding anything to the contrary
contained in this subsection 2.3.9., the Borrower shall
have no obligation to indemnify the Issuing Lender in
respect of any liability incurred by the Issuing Lender
(A) arising solely out of the gross negligence or
willful misconduct of the Issuing Lender, as determined
by a court of competent jurisdiction, or (B) caused by
the Issuing Lender's failure to pay under any Letter of
Credit after presentation to it of a request strictly
complying with the terms and conditions of such Letter
of Credit, as determined by a court of competent
jurisdiction, unless such payment is prohibited by any
law, regulation, court order or decree.
2.3.10. Responsibility of Issuing Lender.
It is expressly understood and agreed that the obligations of
the Issuing Lender hereunder to the Lenders are only those
expressly set forth in this Agreement and that the Issuing Lender
shall be entitled to assume that the conditions precedent set forth
in Section 4.2 have been satisfied unless it shall have acquired
actual knowledge that any such condition precedent has not been
satisfied; provided, however, that nothing set forth in this
Section 2.3 shall be deemed to prejudice the right of any Lender to
recover from the Issuing Lender any amounts made available by such
Lender to the Issuing Lender pursuant to this Section 2.3 in the
event that it is determined by a court of competent jurisdiction
that the payment with respect to a Letter of Credit constituted
gross negligence or willful misconduct on the part of the Issuing
Lender.
2.3.11 Conflict with LOC Documents.
In the event of any conflict between this Agreement and any LOC
Document (including any letter of credit application), this
Agreement shall control.
2.4. Fees.
2.4.1. Agency and Administration Fees.
The Borrower hereby agrees to pay to the Agent for its sole
account such agency fees as agreed upon by the Borrower in
writing.
2.4.2. Facility Fee.
The Borrower hereby agrees to pay to the Agent for the
account of each Lender, ratably in the proportion that such
Lender's Commitment bears to the Aggregate Commitment, a per
annum facility fee equal to the Applicable Percentage on the
average daily amount of the Aggregate Commitment, payable
quarterly in arrears on the 15th day following the last day of
each calendar quarter for the immediately preceding quarter (or
portion thereof) and on the Termination Date. All accrued
facility fees hereunder shall be payable on the effective date of
any termination of the obligations of the Lenders to make
Extensions of Credit hereunder.
2.4.3. Letter of Credit Fees.
(i) Standby Letter of Credit Fee. In consideration of
the LOC Commitment hereunder, the Borrower agrees to pay to
the Agent for the ratable benefit of the Lenders a fee (the
"Standby Letter of Credit Fee") equal to the Applicable
Percentage per annum on the average daily maximum amount
available to be drawn under standby Letters of Credit from
the date of issuance to the date of expiration. The Standby
Letter of Credit Fee shall be payable quarterly in arrears
on the 15th day following the last day of each calendar
quarter for the immediately preceding quarter (or portion
thereof) beginning with the first such date to occur after
the Closing Date.
(ii) Commercial Letter of Credit Fee. In consideration
of the LOC Commitment hereunder, the Borrower agrees to pay
to the Agent for the ratable benefit of the Lenders a fee
(the "Commercial Letter of Credit Fee") equal to fifty
percent (50%) of the Applicable Percentage for the Standby
Letter of Credit Fee on the amount of each drawing under
each commercial Letter of Credit. The Commercial Letter of
Credit Fee will be payable on each date of drawing under a
commercial Letter of Credit.
(iii) Issuing Lender Fee. In addition to the
Letter of Credit Fee, the Borrower agrees to pay to the
Issuing Lender for its own account without sharing by the
other Lenders (a) such fronting and negotiation fees as may
be mutually agreed upon by the Issuing Lender and the
Borrower from time to time and (b) customary charges of the
Issuing Lender with respect to the issuance, amendment,
transfer, administration, cancellation and conversion of,
and drawings under, such Letters of Credit (collectively,
the "Issuing Lender Fees").
2.5. General Facility Terms.
2.5.1. Method of Borrowing.
Not later than 1:00 p.m. (Dallas, Texas time) on each
Borrowing Date, each Lender shall make available its Loan or
Loans, if any, in funds immediately available in Dallas, Texas,
to the Agent at its address specified pursuant to Article XIII or
at such other location as the Agent shall direct. The Agent
shall promptly deposit the funds so received from the Lenders in
the Borrower's account at the Agent's main office in Dallas,
Texas or as otherwise directed by the Borrower. Notwithstanding
the foregoing provisions of this Section 2.5.1, to the extent
that a Loan made by a Lender matures on the Borrowing Date of a
requested Loan, such Lender shall apply the proceeds of the Loan
it is then making to the repayment of principal of the maturing
Loan.
2.5.2. Minimum Amount of Each Revolving Loan.
Each Revolving Loan shall be in a minimum aggregate principal
amount of $2,000,000, in the case of Eurodollar Loan, or
$1,000,000 (or the remaining Revolving Committed Amount, if
less), in the case of Floating Rate Loans, and integral multiples
of $1,000,000 in excess thereof.
2.5.3. Prepayments.
(a) Optional Prepayments. Revolving Loans may be
repaid in whole or in part without premium or penalty;
provided that (i) Eurodollar Loans may be prepaid only upon
three (3) Business Days' prior written notice to the Agent
and must be accompanied by payment of any amount so owing
under Section 3.4, and (ii) partial prepayments shall be in
minimum principal amounts of $2,000,000, in the case of
Eurodollar Loans, and $1,000,000, in the case of Floating
Rate Loans, and in integral multiples of $1,000,000 in
excess thereof.
(b) Mandatory Prepayments. If at any time (i) the
aggregate principal amount of Obligations shall exceed the
lesser of the Aggregate Commitment or the Borrowing Base, or
(ii) the aggregate amount of LOC Obligations shall exceed
the LOC Committed Amount, the Borrower shall immediately
make payment on the Revolving Loans and/or to a cash
collateral account in respect of the LOC Obligations and any
amount owing under Section 3.4, in an amount sufficient to
eliminate the excess of the aggregate principal amount of
the Obligations over the Aggregate Commitment or the
Borrowing Base.
(c) Application. Unless otherwise specified by the
Borrower, prepayments made hereunder shall be applied first
to Floating Rate Loans, then to Eurodollar Loans in direct
order of Interest Period maturities and then to a cash
collateral account to secure the LOC Obligations. Amounts
prepaid hereunder may be reborrowed in accordance with the
provisions hereof.
2.5.4. Interest Periods.
Subject to the provisions of Section 2.5.5, each Loan (other
than Floating Rate Loans as to which Interest Periods do not
apply) shall bear interest from and including the first day of
the Interest Period applicable thereto to (but not including) the
earlier of (i) the last day of such Interest Period or (ii) the
date of any earlier prepayment as permitted by Section 2.5.3, at
the interest rate determined as applicable from time to time to
such Loan.
2.5.5. Rate after Maturity.
Except as provided in the next sentence, any Loan not paid at
maturity, whether by acceleration or otherwise, shall bear
interest until paid in full at a rate per annum equal to the
Alternate Base Rate plus 2% per annum, payable upon demand. In
the case of a Eurodollar Loan the maturity of which is
accelerated, such Eurodollar Loan shall bear interest for the
remainder of the applicable Interest Period (or until paid if
paid prior to the end of such Interest Period), at the higher of
the rate otherwise applicable to such Eurodollar Loan for such
Interest Period plus 2% per annum or the Alternate Base Rate plus
2% per annum.
2.5.6. Interest Payment Dates; Interest and Fee Basis.
Interest accrued on each Eurodollar Loan shall be payable on
the last day of its applicable Interest Period, on any date on
which such Eurodollar Loan is prepaid, whether by acceleration or
otherwise, and at maturity. Interest accrued on each Floating
Rate Loan shall be payable on each Payment Date, on any date on
which such Floating Rate Loan is prepaid, whether by acceleration
or otherwise, and at maturity. Interest accrued on each
Eurodollar Loan having an Interest Period longer than three
months shall also be payable on the last day of each three-month
interval during such Interest Period. All Interest, Facility
Fees and Letter of Credit Fees hereunder shall be calculated for
actual days elapsed on the basis of a 360-day year. Interest
shall be payable for the day a Loan is made but not for the day
of any payment on the amount paid if payment is received prior to
noon (local time) at the place of payment. If any payment of
principal of or interest on a Loan shall become due on a day
which is not a Business Day, such payment shall be made on the
next succeeding Business Day and, in the case of a principal
payment, such extension of time shall be included in computing
interest in connection with such payment.
2.5.7. Method of Payment.
Subject to the last sentence of Section 2.5.1, all payments of
principal, interest, and fees hereunder shall be made by noon
(local time) on the date when due in immediately available funds
to the Agent at the Agent's address specified pursuant to Article
XIII, or at any other Lending Installation of the Agent specified
in writing by the Agent to the Borrower and shall be made ratably
among all Lenders in the case of fees and payments in respect of
Revolving Loans. Each payment delivered to the Agent for the
account of any Lender shall be delivered promptly by the Agent to
such Lender in the same type of funds which the Agent received at
its address specified pursuant to Article XIII or at any Lending
Installation specified in a notice received by the Agent from
such Lender. The Borrower authorizes the Agent to charge its
general operating account from time to time for amounts of
principal, interest and commitment fees when and as the same
become due hereunder.
2.5.8. Notes; Telephonic Notices.
Each Lender is hereby authorized to record on the schedule
attached to each of its Notes, or otherwise record in accordance
with its usual practice, the date and amount of each of its Loans
of the Type evidenced by such Note; provided, however, that any
failure to so record shall not affect the Borrower's obligations
under any Loan Document. The Borrower hereby authorizes the
Lenders and the Agent to extend, convert or continue Loans,
effect selections of Types of Loans, and transfer funds based on
telephonic notices made by any person or persons the Agent or any
Lender in good faith believes to be a Responsible Officer or an
officer, employee or agent of the Borrower designated by a
Responsible Officer. The Borrower agrees to deliver promptly to
the Agent a written confirmation of each telephonic notice given
by the Borrower, signed by a Responsible Officer or an officer,
employee or agent of the Borrower designated by a Responsible
Officer. If the written confirmation differs in any material
respect from the action taken by the Agent and the Lenders, the
records of the Agent and the Lenders shall govern absent manifest
error. Neither the Agent nor any Lender shall incur any
liability for the Borrower's failure to send written confirmation
of any telephone notice, the failure of any such written
confirmation to conform to the telephone instructions that the
Agent or such Lender received or the failure of the Agent or such
Lender to produce such written confirmation at any subsequent
time.
2.5.9. Notification of Loans, Interest Rates and
Prepayments.
The Agent will notify each Lender of the contents of each
Aggregate Commitment reduction notice, Revolving Borrowing
Notice, Conversion/Continuation Notice and repayment notice
received by it hereunder promptly and in any event before the
close of business on the same Business Day of receipt thereof
(or, in the case of borrowing notices with respect to Floating
Rate Loans, within one hour of receipt thereof). The Agent will
notify each Lender of the interest rate applicable to each
Eurodollar Loan promptly upon determination of such interest rate
and will give each Lender prompt notice of each change in the
Alternate Base Rate and the Applicable Percentage.
2.5.10. Non-Receipt of Funds by the Agent.
Unless the Borrower or a Lender, as the case may be, notifies
the Agent prior to the date on which it is scheduled to make
payment to the Agent of (i) in the case of a Lender, the proceeds
of a Loan or (ii) in the case of the Borrower, a payment of
principal, interest or fees to the Agent for the account of the
Lenders, that it does not intend to make such scheduled payment,
the Agent may assume that such scheduled payment has been made.
The Agent may, but shall not be obligated to, make the amount of
such scheduled payment available to the intended recipient in
reliance upon such assumption. If such Lender or the Borrower,
as the case may be, has not in fact made such scheduled payment
to the Agent, the recipient of such scheduled payment shall, on
demand by the Agent, repay to the Agent the amount so made
available together with interest thereon in respect of each day
during the period commencing on the date such amount was so made
available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by
a Lender, the Federal Funds Effective Rate for such day if paid
within two (2) Business Days, and thereafter at the Alternate
Base Rate, or (y) in the case of payment by the Borrower, the
interest rate applicable to the relevant Loan.
2.5.11. Cancellation.
The Borrower may at any time after the date hereof cancel the
Aggregate Commitment, in whole, or in a minimum aggregate amount
of $5,000,000 (and in integral multiples of $5,000,000 if in
excess thereof) ratably among the Lenders upon at least three
Business Days' prior written notice to the Agent, which notice
shall specify the amount of such reduction; provided, however, no
such notice of cancellation shall be effective to the extent that
it would reduce the Aggregate Commitment to an amount which would
be less than the outstanding principal amount of Obligations
outstanding at the time such cancellation is to take effect. Any
notice of cancellation given pursuant to this Section 2.5.11
shall be irrevocable and shall specify the date upon which such
cancellation is to take effect.
2.5.12. Lending Installations.
Subject to Section 3.5, each Lender may, by written, telex or
telecopy notice to the Agent and the Borrower, book its Loans at
any Lending Installation selected by such Lender and may from
time to time, change its Lending Installation and for whose
account Loan payments are to be made. Each Lender will notify
the Agent and the Borrower on or prior to the date of this
Agreement of the Lending Installation which it intends to utilize
for each type of Loan hereunder.
2.5.13. Taxes.
Any and all payments by the Borrower hereunder shall be made
free and clear of and without deduction for any and all present
or future taxes, levies, imposts, deductions, charges or
withholdings. Each determination under this Section shall be
conclusive and binding absent manifest error. This Section shall
survive the termination of this Agreement and payment of the
Obligations and all other amounts payable hereunder.
2.5.14. Withholding Tax Exemption.
At least five Business Days prior to the first date on which
interest or fees are payable hereunder for the account of any
Lender, each Lender that is not incorporated under the laws of
the United States of America, or a state thereof, agrees that it
will deliver to the Borrower and the Agent two duly completed
copies of United States Internal Revenue Service Form 1001 or
4224, certifying in either case that such Lender is entitled to
receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income
taxes. Each Lender which so delivers a Form 1001 or 4224 further
undertakes to deliver to the Borrower and the Agent two
additional copies of such form (or a successor form) on or before
the date that such form expires (currently, three successive
calendar years for Form 1001 and one calendar year for Form 4224)
or becomes obsolete or after the occurrence of any event
requiring a change in the most recent forms so delivered by it,
and such amendments thereto or extensions or renewals thereof as
may be reasonably requested by the Borrower or the Agent, in each
case certifying that such Lender is entitled to receive payments
under this Agreement and the Notes without deduction or
withholding of any United States federal income taxes, unless an
event (including without limitation any change in treaty, law or
regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly
completing and delivering any such form with respect to it and
such Lender advises the Borrower and the Agent that it is not
capable of receiving payments without any deduction or
withholding of United States federal income tax.
2.6. Extension of Termination Date.
The Borrower may, within 60 days prior to the first and
second anniversary dates of the original Closing Date (each such
anniversary date being referred to as an "Anniversary Date"), by
notice to the Agent, make written request of the Lenders to
extend the Termination Date for an additional period of one year.
The Agent will give prompt notice to each of the Lenders of its
receipt of any such request for extension of the Termination
Date. Each Lender shall make a determination not later than 30
days prior to the then applicable Anniversary Date as to whether
or not it will agree to extend the Termination Date as requested;
provided, however, that failure by any Lender to make a timely
response to the Borrower's request for extension of the
Termination Date shall be deemed to constitute a refusal by such
Lender to extension of the Termination Date. If, in response to
a request for an extension of the Termination Date, one or more
Lenders shall refuse (or are deemed to have refused) to agree to
the requested extension (the "Disapproving Lenders"), then
provided that the requested extension is approved by Lenders
holding at least 60% of the Revolving Commitments hereunder (the
"Approving Lenders"), the credit facility may be extended and
continued at the option of the Borrower at a lower aggregate
amount equal to the Revolving Commitments held by the Approving
Lenders. In any such case, (i) the Termination Date relating to
the Commitments held by the Disapproving Lenders shall remain as
then in effect with repayment of Obligations held by such
Disapproving Lenders being due on such date and termination of
their respective Commitments on such date, (ii) the Termination
Date relating to the Commitments held by the Approving Lenders
shall be extended by an additional one year period, and (iii) the
Borrower may, at its own expense with the assistance of the
Agent, make arrangements for another bank or financial
institution reasonably acceptable to the Agent to acquire, in
whole or in part, the Obligations and Commitments of the
Disapproving Lenders. Where any such arrangements are made for
another bank or financial institution to acquire the Obligations,
fees and other amounts owing hereunder or under the other Credit
Documents and Commitments of a Disapproving Lender, or any
portion thereof, then upon payment of the Obligations, fees and
other amounts owing hereunder or under the other Credit Documents
and termination of the Commitments relating thereto, such
Disapproving Lender shall promptly transfer and assign, in whole
or in part, as requested, without recourse (in accordance with
and subject to the provisions of Section 12.1), all or part of
its interests, rights and obligations under this Credit Agreement
to such bank or financial institution which shall assume such
assigned obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided, that such assignment
shall not conflict with any law, rule or regulation or order of
any court or other Governmental Authority.
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1. Yield Protection.
If, after the date of this Agreement, the adoption of any law
or the application of any governmental or quasi-governmental rule,
regulation, policy, guideline or directive (whether or not having
the force of law), or any change therein, or any change in the
interpretation or administration thereof, or the compliance of any
Lender therewith,
(i) with respect to Revolving Loans bearing interest at
a Eurodollar Rate, subjects any Lender or any
applicable Lending Installation to any tax, duty,
charge or withholding on or from payments due from
the Borrower (excluding federal, state or local
taxation of the overall net income of any Lender or
applicable Lending Installation), or changes the
basis of taxation of payments to any Lender in
respect of its Revolving Loans or other amounts due
it hereunder in respect of such Loans, or
(ii) with respect to Revolving Loans bearing interest at
a Eurodollar Rate, imposes or increases or deems
applicable any reserve, assessment, insurance
charge, special deposit or similar requirement
against assets of, deposits with or for the account
of, or credit extended by, any Lender or any
applicable Lending Installation (other than
reserves and assessments taken into account in
determining the interest rate applicable to
Revolving Loans bearing interest at a Eurodollar
Rate), or
(iii) with respect to Revolving Loans bearing
interest at a Eurodollar Rate, imposes any other
condition,
the result of which is to increase the cost to any Lender or any
applicable Lending Installation of making, funding or maintaining
such Loans or reduces any amount receivable by any Lender or any
applicable Lending Installation in connection with such Loans, or
requires any Lender or any applicable Lending Installation to make
any payment calculated by reference to the amount of such Loans
held or interest received by it, by an amount deemed material by
such Lender, then, within 15 days of demand by such Lender, the
Borrower shall pay such Lender that portion of such increased
expense incurred or reduction in an amount received which such
Lender determines is attributable to making, funding and
maintaining its Loans and its Commitment.
3.2. Changes in Capital Adequacy Regulations.
If a Lender reasonably determines that the amount of capital
required or expected to be maintained by such Lender, any Lending
Installation of such Lender or any corporation controlling such
Lender attributable to this Agreement, the Extensions of Credit or
its obligation to make Extensions of Credit hereunder is increased
as a result of a Change (as hereafter defined), then, within 15
days of demand by such Lender, the Borrower shall pay such Lender
the amount which such Lender determines is necessary to compensate
it for any reduction in the rate of return on capital to an amount
below that which such Lender could have achieved but for such
Change and is attributable to this Agreement, the Loans or its
obligation to make Loans hereunder, provided, however, that the
effect of any Change shall be determined based on the effect on
such Lender that would be applicable to such Lender if such Lender
was maintaining the highest credit quality as determined by the
applicable regulatory authorities at the time of such Change.
"Change" means (i) any change after the date of this Agreement in
the Risk-Based Capital Guidelines or (ii) any adoption of or change
in any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive
(whether or not having the force of law) after the date of this
Agreement which affects the amount of capital required or expected
to be maintained by any Lender or any Lending Installation or any
corporation controlling any Lender. "Risk-Based Capital
Guidelines" means (i) the risk-based capital guidelines in effect
in the United States on the date of this Agreement, including
transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking
Regulation and Supervisory Practices Entitled "International
Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations
adopted prior to the date of this Agreement.
3.3. Availability of Types of Loans.
If the Required Lenders determine that (i) adequate and
reasonable means do not exist for ascertaining the applicable
Eurodollar Rate for the Interest Period, (ii) deposits of a type
and maturity appropriate to match fund Revolving Loans bearing
interest at a Eurodollar Rate are not available or (iii) the
interest applicable to a Type of Revolving Loan does not accurately
reflect the cost of making or maintaining such Revolving Loan, then
the Agent shall suspend the availability of the affected Type of
Revolving Loan. If any Lender determines that maintenance of its
Eurodollar Loans would violate any applicable law, rule, regulation
or directive, whether or not having the force of law, then such
Lender may by notice to the Borrower, through the Agent, require
that any of its Eurodollar Loans be promptly converted to a
Floating Rate Loan.
3.4. Funding Indemnification.
If any payment of a Eurodollar Loan occurs on a date which is not
the last day of the applicable Interest Period, whether because of
acceleration, prepayment or otherwise, or a Eurodollar Loan is not
accepted on the date specified by the Borrower for any reason other
than default by the Lenders or the Borrower shall fail to make a
prepayment on a Eurodollar Loan after giving notice thereof, the
Borrower will indemnify each Lender for any loss or cost incurred
by it resulting therefrom, including, without limitation, any loss
or cost in liquidating or employing deposits acquired to fund or
maintain the Eurodollar Loan.
3.5. Lender Statements; Survival of Indemnity.
To the extent reasonably possible, each Lender shall designate
an alternate Lending Installation with respect to its Eurodollar
Loans to reduce any liability of the Borrower to such Lender under
Section 3.1 or 3.2 or to avoid the unavailability of a Revolving
Loan under Section 3.3, so long as such designation is not
disadvantageous to such Lender. Each Lender shall deliver a
written statement of such Lender as to the amount due, if any,
under Section 3.1, 3.2 or 3.4. Such written statement shall set
forth in reasonable detail the calculations upon which such Lender
determined such amount and shall be final, conclusive and binding
on the Borrower in the absence of manifest error. Determination of
amounts payable under such Sections in connection with a Eurodollar
Loan shall be calculated as though each Lender funded its
Eurodollar Loan through the purchase of a deposit of the type and
maturity corresponding to the deposit used as a reference in
determining the Eurodollar Rate applicable to such Loan, whether in
fact that is the case or not. Unless otherwise provided herein,
the amount specified in the written statement shall be payable on
demand after receipt by the Borrower of the written statement. The
obligations of the Borrower under Sections 3.1, 3.2 and 3.4 shall
survive payment of any other of the Borrower's Obligations and the
termination of this Agreement.
3.6 Illegality.
Notwithstanding any other provision herein, if the adoption of or
any change in any Requirement of Law or in the interpretation or
application thereof occurring after the Closing Date shall make it
unlawful for any Lender to make or maintain Eurodollar Loans as
contemplated by this Agreement, (a) such Lender shall promptly give
written notice of such circumstances to the Borrower and the Agent
(which notice shall be withdrawn whenever such circumstances no
longer exist), (b) the commitment of such Lender hereunder to make
Eurodollar Loans, continue Eurodollar Loans as such and convert a
Floating Rate Loan to a Eurodollar Loan shall forthwith be canceled
and, until such time as it shall no longer be unlawful for such
Lender to make or maintain Eurodollar Loans, such Lender shall then
have a commitment only to make a Floating Rate Loan when a Eurodollar
Loan is requested and (c) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to
Floating Rate Loans on the respective last days of the then current
Interest Periods with respect to such Loans or within such earlier
period as required by law. If any such conversion of a Eurodollar
Loan occurs on a day which is not the last day of the then current
Interest Period with respect thereto, the Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to Section
3.4.
3.7 Sharing of Payments.
Each Revolving Loan, payment or prepayment of principal and
interest thereon or reimbursement obligations arising from drawings
under Letters of Credit, payment of fees which are shared ratably,
reductions in Commitments and extensions and conversions of Revolving
Loans, shall be allocated pro rata among the Lenders in accordance
with their respective principal amounts of their outstanding
Obligations (taking into account participation interests therein), or
if no Obligations are outstanding , their Commitments. The Lenders
agree among themselves that , in the event that any Lenders shall
obtain payment in respect of any Obligation or other amounts owing to
such Lender under this Agreement through exercise of a right of
setoff, banker's lien or counterclaim or pursuant to a secured claim
under Section 506 of the United States Bankruptcy Code or other
security or interest arising from, or in lieu of, such secured claim,
received by such Lender under any applicable bankruptcy, insolvency
or other similar law or otherwise, or by any other means in excess of
its pro rata share of such payment as provided for in this Agreement,
such Lender shall promptly purchase from the other Lenders a
participation interest in such Obligations or other amounts, and make
such other adjustments from time to time, as shall be equitable to
the end of all Lenders share such payment in accordance with the
respective ratable shares as provided for in this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Extension of Credit.
The Lenders shall not be required to make the initial Extension of
Credit hereunder unless the Borrower has furnished to the Agent with
sufficient copies for the Lenders:
(i) Copies of the articles of incorporation of each of the
Credit Parties, together with all amendments thereto certified
by the Secretary or Assistant Secretary of each of the Credit
Parties.
(ii) Copies, certified by the Secretary or Assistant
Secretary of each of the Credit Parties, of its by-laws and of
its Board of Directors' resolutions (and resolutions of other
bodies, if any are deemed necessary by counsel for any Lender)
authorizing the execution of the Loan Documents.
(iii) An incumbency certificate, executed by the
Secretary or Assistant Secretary of each of the Credit Parties,
which shall identify by name and title and bear the signature of
the Responsible Officers and the other officers, employees and
agents of the Borrower designated by the Responsible Officers
authorized to sign the Loan Documents and to make borrowings
hereunder, upon which certificate the Agent and the Lenders
shall be entitled to rely until informed of any change in
writing by the respective Credit Party.
(iv) A certificate, signed by the chief financial officer
of the Borrower, stating that on the initial Borrowing Date no
Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of the Borrower's general counsel,
addressed to the Lenders in substantially the form of Exhibit E
hereto.
(vi) Notes payable to the order of each of the Lenders.
(vii) Written money transfer instructions, in
substantially the form of Exhibit D hereto, addressed to the
Agent and signed by a Responsible Officer or an officer,
employee or agent of the Borrower designated by a Responsible
Officer, together with such other related money transfer
authorizations as the Agent may have reasonably requested.
(viii) A duly completed compliance certificate in
substantially the form of Exhibit B hereto, signed by the
Borrower's chief financial officer.
(ix) Copies of this Agreement duly executed by the Credit
Parties.
(x) Evidence of repayment of amounts owing and termination
of Commitments, under the Agreement dated as of December 22,
1993, as amended and modified among the Borrower, the Lenders
identified thereon, The First National Bank of Chicago, as
Agent, and The Boatmen's National Bank of St. Louis and
Citibank, N.A., as Co-Agents.
(xi) A Borrowing Base certificate substantially in the form
of Exhibit H.
(xii) Such other documents as any Lender or its
counsel may have reasonably requested.
4.2. Each Extension of Credit.
The Lenders shall not be required to make any Extension of
Credit (other than a Revolving Loan that, after giving effect
thereto and the application of the proceeds thereof, does not
increase the aggregate amount of outstanding Revolving Loans),
including the initial Extension of Credit hereunder, unless on
the applicable Borrowing Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in
Article V are true and correct as of such Borrowing Date
except to the extent any such representation or warranty
is stated to relate solely to an earlier date, in which
case such representation or warranty shall be true and
correct on and as of such earlier date.
(iii) All legal matters incident to the making of such
Extension of Credit shall be satisfactory to the Lenders
and their counsel.
Each Borrowing Notice with respect to each such Extension of
Credit shall constitute a representation and warranty by the
Borrower that the conditions contained in Sections 4.2(i) and
(ii) have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each of the Credit Parties represents and warrants to the Lenders
as of the date of this Agreement and as of each Borrowing Date
pursuant to Section 4.2 (ii) that:
5.1. Corporate Existence and Standing.
Each of the Borrower and its Subsidiaries (a) is a corporation
duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, (b) has the corporate or
other necessary power and authority to conduct its business in each
jurisdiction in which its business is conducted and the legal right
to own and operate its property, to lease the property it operates
as lessee and to conduct the business in which it is currently
engaged, (c) is duly qualified as a foreign entity and in good
standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business
requires such qualification, other than in such jurisdictions where
the failure to be so qualified and in good standing would not, in
the aggregate, have a Material Adverse Effect, and (d) is in
compliance with all Requirements of Law, except to the extent that
the failure to comply therewith would not, in the aggregate, be
reasonably expected to have a Material Adverse Effect.
5.2. Authorization and Validity.
Each of the Credit Parties has the corporate power and authority
and legal right to execute and deliver the Loan Documents and to
perform its obligations thereunder. The execution and delivery by
each of the Credit Parties of the Loan Documents and the
performance of its obligations thereunder have been duly authorized
by proper corporate proceedings, and the Loan Documents constitute
legal, valid and binding obligations of each of the Credit Parties
enforceable against such Credit Party in accordance with their
terms, except as enforceability may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors'
rights generally.
5.3. No Conflict; Government Consent.
Neither the execution and delivery by the Credit Parties of the
Loan Documents, nor the consummation of the transactions therein
contemplated, nor compliance with the provisions thereof will
violate any Requirement of Law or any Contractual Obligation
binding on any of the Credit Parties or on any Credit Party's
articles of incorporation or by-laws or the provisions of any
indenture, instrument or agreement to which any Credit Party is a
party or is subject, or by which it, or its Property, is bound, or
conflict with or constitute a default thereunder, or result in the
creation or imposition of any Lien in, of or on the Property of any
Credit Party pursuant to the terms of any such indenture,
instrument or agreement. No order, consent, approval, license,
authorization, or validation of, or filing, recording or
registration with, or exemption by, any governmental or public body
or authority, or any subdivision thereof, is required to authorize,
or is required in connection with the execution, delivery and
performance of, or the legality, validity, binding effect or
enforceability of, any of the Loan Documents.
5.4. Financial Condition.
Each of the financial statements described below (copies of
which have heretofore been provided to the Agent for distribution
to the Lenders), have been prepared in accordance with GAAP
consistently applied throughout the periods covered thereby, are
complete and correct in all material respects and present fairly
the financial condition and results from operations of the entities
and for the periods specified, subject in the case of interim
company-prepared statements to normal year-end adjustments:
(i) an audited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries dated as of
February 3 1996, together with related statements income and
cash flows certified by Ernst & Young, LLP, certified public
accountants; and
(ii) a company-prepared consolidated balance sheet of
the Borrower and its consolidated Subsidiaries dated as of
November 2, 1996, together with related consolidated
statements of income and cash flows.
5.5. Material Adverse Change.
Since the date of the audited consolidated balance sheet
referenced in Section 5.4(i), there has been no change in the
business, Property, prospects, condition (financial or otherwise)
or results of operations of the Borrower and its Subsidiaries which
has a substantial likelihood of having a Material Adverse Effect.
5.6. Taxes.
The Borrower and its Subsidiaries have filed or caused to be
filed all United States federal tax returns and all other tax
returns which are required to be filed and have paid all taxes due
pursuant to said returns or pursuant to any assessment received by
the Borrower or any of its Subsidiaries, except such taxes, if any,
as are being contested in good faith and as to which, in the
aggregate, adequate reserves have been provided. The United States
income tax returns of the Borrower and its Subsidiaries have been
audited by the Internal Revenue Service through the fiscal year
ended January 30, 1993. No tax liens have been filed and no claims
are being asserted with respect to any such taxes. The charges,
accruals and reserves on the books of the Borrower and its
Subsidiaries in respect of any taxes or other governmental charges
are adequate.
5.7. Litigation and Contingent Obligations.
There is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the knowledge
of any of their officers, threatened against or affecting the
Borrower or any of its Subsidiaries which (a) relate to the Loan
Documents or any of the transactions contemplated hereby or
thereby, or (b) if adversely determined, would have a substantial
likelihood of having a Material Adverse Effect. Other than any
liability incident to such litigation, arbitration or proceedings,
the Borrower has no material contingent obligations not provided
for or disclosed in the financial statements referred to in Section
5.4.
5.8. Subsidiaries.
Schedule 5.8 hereto contains an accurate list of all of the
presently existing Subsidiaries of the Borrower, setting forth
their respective jurisdictions of incorporation and the percentage
of their respective capital stock owned by the Borrower or other
Subsidiaries. All of the issued and outstanding shares of capital
stock of such Subsidiaries have been duly authorized and issued and
are fully paid and non-assessable.
5.9. ERISA.
Except as would not reasonably be expected to have a Material
Adverse Effect:
(a) Except as provided in Schedule 5.09-1, during the
five-year period prior to the date on which this
representation is made or deemed made: (i) no ERISA Event has
occurred, and, to the best knowledge of the Borrower and its
Subsidiaries, no event or condition has occurred or exists as
a result of which any ERISA Event could reasonably be expected
to occur, with respect to any Plan; (ii) no "accumulated
funding deficiency," as such term is defined in Section 302 of
ERISA and Section 412 of the Code, whether or not waived, has
occurred with respect to any Plan; (iii) each Plan has been
maintained, operated, and funded in compliance with its own
terms and in material compliance with the provisions of ERISA,
the Code, and any other applicable federal or state laws; and
(iv) no lien in favor of the PBGC or a Plan has arisen or is
reasonably likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit
liabilities" (as defined in Section 4001(a)(16) of ERISA),
whether or not vested, under each Single Employer Plan, as of
the last annual valuation date prior to the date on which this
representation is made or deemed made (determined, in each
case, in accordance with Financial Accounting Standards Board
Statement 87, utilizing the actuarial assumptions used in such
Plan's most recent actuarial valuation report), did not exceed
as of such valuation date the fair market value of the assets
of such Plan.
(c) Except as provided in Schedule 5.09-1, neither the
Borrower or any of its Subsidiaries nor any ERISA Affiliate
has incurred, or, to the best knowledge of the Borrower and
its Subsidiaries, could be reasonably expected to incur, any
withdrawal liability under ERISA to any Multiemployer Plan or
Multiple Employer Plan. Neither the Borrower or any of its
Subsidiaries nor any ERISA Affiliate would become subject to
any withdrawal liability under ERISA if any of the Borrower or
its Subsidiaries or any ERISA Affiliate were to withdraw
completely from all Multiemployer Plans and Multiple Employer
Plans as of the valuation date most closely preceding the date
on which this representation is made or deemed made. Neither
the Borrower nor any of its Subsidiaries nor any ERISA
Affiliate has received any notification that any Multiemployer
Plan is in reorganization (within the meaning of Section 4241
of ERISA), is insolvent (within the meaning of Section 4245 of
ERISA), or has been terminated (within the meaning of Title IV
of ERISA), and no Multiemployer Plan is, to the best knowledge
of the Borrower and its Subsidiaries, reasonably expected to
be in reorganization, insolvent, or terminated.
(d) To the best of the Borrower's or its Subsidiaries'
knowledge, no prohibited transaction (within the meaning of
Section 406 of ERISA or Section 4975 of the Code) or breach of
fiduciary responsibility has occurred with respect to a Plan
which has subjected or may subject any of the Borrower or its
Subsidiaries or any ERISA Affiliate to any material liability
under Sections 406, 409, 502(i), or 502(l) of ERISA or Section
4975 of the Code, or under any agreement or other instrument
pursuant to which any of the Borrower or its Subsidiaries or
any ERISA Affiliate has agreed or is required to indemnify any
person against any such liability.
(e) Neither the Borrower nor any of its Subsidiaries
nor any ERISA Affiliate has any unrecorded material liability
with respect to "expected post-retirement benefit obligations"
within the meaning of the Financial Accounting Standards Board
Statement 106. Each Plan which is a welfare plan (as defined
in Section 3(1) of ERISA) to which Sections 601-609 of ERISA
and Section 4980B of the Code apply has been administered in
compliance in all material respects of such sections.
5.l0. Accuracy of Information.
No information, exhibit or report furnished by the Borrower or
any of its Subsidiaries to the Agent or to any Lender in
connection with the negotiation of, or compliance with, the Loan
Documents contained any material misstatement of fact or omitted
to state a material fact or any fact necessary to make the
statements contained therein not misleading.
5.11. Governmental Regulations.
(a) No part of the proceeds of the Loans will be used,
directly or indirectly, for the purpose of purchasing or
carrying any "margin stock" within the meaning of Regulation G
or Regulation U, or for the purpose of purchasing or carrying
or trading in any securities in violation of federal or state
statute or regulation. If requested by any Lender or the
Agent, the Borrower will furnish to the Agent and each Lender
a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U.
No indebtedness being reduced or retired out of the proceeds
of the Loans was or will be incurred for the purpose of
purchasing or carrying any margin stock within the meaning of
Regulation U or any "margin security" within the meaning of
Regulation T. "Margin stock" within the meanings of
Regulation U does not constitute more than 25% of the value of
the consolidated assets of the Borrower and its Subsidiaries.
None of the transactions contemplated by this Agreement
(including, without limitation, the direct or indirect use of
the proceeds of the Loans) will violate or result in a
violation of the Securities Act of 1933, as amended, or the
Securities Exchange Act of 1934, as amended, or regulations
issued pursuant thereto, or Regulation G, T, U or X.
(b) Neither the Borrower nor any of its Subsidiaries is
subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act or the Investment Company
Act of 1940, each as amended. In addition, neither the
Borrower nor any of its Subsidiaries is (i) an "investment
company" registered or required to be registered under the
Investment Company Act of 1940, as amended, and is not
controlled by such a company, or (ii) a "holding company", or
a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary" of a
"holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
(c) Each of the Borrower and its Subsidiaries has
obtained all material licenses, permits, franchises or other
governmental authorizations necessary to the ownership of its
respective Property and to the conduct of its business.
(d) Neither of the Borrower nor any of its Subsidiaries
is in violation of any applicable statute, regulation or
ordinance of the United States of America, or of any state,
city, town, municipality, county or any other jurisdiction, or
of any agency thereof (including without limitation,
environmental laws and regulations), which violation could
reasonably be expected to have a Material Adverse Effect.
(e) Each of the Borrower and its Subsidiaries is
current with all material reports and documents, if any,
required to be filed with any state or federal securities
commission or similar agency and is in full compliance in all
material respects with all applicable rules and regulations of
such commissions.
5.12. Material Agreements.
Neither the Borrower nor any of its Subsidiaries is a party to
any agreement or instrument or subject to any charter or other
corporate restriction which has a substantial likelihood of having
a Material Adverse Effect. Neither the Borrower nor any Subsidiary
is in default in the performance, observance or fulfillment of any
Contractual Obligation contained in (i) any agreement to which it
is a party, which default has a substantial likelihood of having a
Material Adverse Effect or (ii) any agreement or instrument
evidencing or governing Indebtedness, which default would have a
substantial likelihood of having a Material Adverse Effect.
5.13. Compliance With Laws.
The Borrower and its Subsidiaries have complied in all material
respects with all applicable statutes, rules, regulations, orders
and restrictions of any domestic or foreign government or any
instrumentality or agency thereof, having jurisdiction over the
conduct of their respective businesses or the ownership of their
respective Property. Neither the Borrower nor any Subsidiary has
received any notice to the effect that its operations are not in
material compliance with any of the requirements of applicable
federal, state and local environmental, health and safety statutes
and regulations or the subject of any federal or state
investigation evaluating whether any remedial action is needed to
respond to a release of any toxic or hazardous waste or substance
into the environment, which non-compliance or remedial action has
a substantial likelihood of having a Material Adverse Effect.
5.14. Ownership of Properties.
Except as set forth on Schedule 5.14 hereto, on the date of this
Agreement, the Borrower and its Subsidiaries will have good title
to, or a valid leasehold interest in, free of all Liens other than
those permitted by Section 6.15, all of the Property and assets
reflected in the financial statements referred to in Section 5.4 as
owned by it or leased by it, as applicable.
5.15. Intellectual Property.
Each of the Borrower and its Subsidiaries owns, or has the legal
right to use, all United States trademarks, tradenames, copyrights,
technology, know-how and processes, if any, necessary for each of
them to conduct its business as currently conducted (the
"Intellectual Property") except for those the failure to own or have
such legal right to use would not be reasonably expected to have a
Material Adverse Effect. Except as provided on Schedule 5.15, no
claim has been asserted and is pending by any Person challenging or
questioning the use of any such Intellectual Property or the validity
or effectiveness of any such Intellectual Property, nor does the
Borrower or any of its Subsidiaries know of any such claim, and the
use of such Intellectual Property by the Borrower or any of its
Subsidiaries does not infringe on the rights of any Person, except
for such claims and infringements that in the aggregate, would not be
reasonably expected to have a Material Adverse Effect.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders
shall otherwise consent in writing:
6.1. Financial Reporting.
The Borrower will maintain, for itself and each
Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, and
furnish to the Lenders:
(i) Audited Financial Statements. As soon as available,
but in any event within 95 days after the end of each fiscal
year, an audited consolidated balance sheet of the Borrower
and its Subsidiaries as of the end of the fiscal year and the
related consolidated statements of income, retained earnings,
shareholders' equity and cash flows for the year, audited by
Ernst & Young, LLP, or other firm of independent certified
public accountants of nationally recognized standing
reasonably acceptable to the Required Lenders, setting forth
in each case in comparative form the figures for the previous
year, reported without a "going concern" or like qualification
or exception, or qualification indicating that the scope of
the audit was inadequate to permit such independent certified
public accountants to certify such financial statements
without such qualification.
(ii) Company-Prepared Financial Statements. As soon as
available, but in any event
(a) within 50 days after the end of each of
the first three fiscal quarters, a company-prepared
consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of the quarter and related
company-prepared consolidated statements of income for
such quarterly period and for the fiscal year to date and
cash flows for the fiscal year to date; and
(b) within 60 days after the end of the fourth
fiscal quarter, a company-prepared consolidated balance
sheet of the Borrower and its Subsidiaries as of the end
of the quarter and related company-prepared consolidated
statements of income, retained earnings, shareholders'
equity and cash flows for such quarterly period and for
the fiscal year to date;
in each case setting forth in comparative form the
consolidated figures for the corresponding period or periods
of the preceding fiscal year or the portion of the fiscal year
ending with such period, as applicable, in each case subject
to normal recurring year-end audit adjustments.
All such financial statements to be complete and correct in all
material respects (subject, in the case of interim statements, to
normal recurring year-end audit adjustments) and to be prepared in
reasonable detail and, in the case of the annual and quarterly
financial statements provided in accordance with subsections (i)
and (ii) above, in accordance with GAAP applied consistently
throughout the periods reflected therein) and further accompanied
by a description of, and an estimation of the effect on the
financial statements on account of, a change in the application of
accounting principles as provided in Section 1.3.
6.2 Certificates; Other Information.
Furnish, or cause to be furnished, to the Agent for distribution
to the Lenders:
(i) Accountant's Certificate and Reports.
Concurrently with the delivery of the financial statements
referred to in subsection 6.1(i) above, a certificate of
the independent certified public accountants reporting on
such financial statements stating that in making the
examination necessary therefor no knowledge was obtained
of any Default or Unmatured Default, except as specified
in such certificate.
(ii) Officer's Certificate. Concurrently with
the delivery of the financial statements referred to in
Sections 6.1(i) and 6.1(ii) above, a certificate of a
Responsible Officer stating that, to the best of such
Responsible Officer's knowledge and belief, (a) the
financial statements fairly present in all material
respects the financial condition of the parties covered by
such financial statements, (b) during such period the
Borrower and its Subsidiaries have observed or performed
in all material respects the covenants and other agreements
hereunder and under the other Loan Documents relating to
them, and satisfied in all material respects the
conditions, contained in this Agreement to be observed,
performed or satisfied by them, (c) such Responsible
Officer has obtained no knowledge of any Default or
Unmatured Default except as specified in such certificate
and (d) such certificate shall include the calculations
required to indicate compliance with the financial
covenants in Sections 6.17, 6.18, 6.19 and 6.20. A form
of Officer's Certificate is attached as Exhibit B.
(iii) Accountants' Reports. Promptly upon
receipt, a copy of any final (as distinguished from a
preliminary or discussion draft) "management letter" or
other similar report submitted by independent accountants
or financial consultants to the Borrower and its
Subsidiaries in connection with any annual, interim or
special audit.
(iv) Borrowing Base Certificates. As soon as
available, and in any event within 50 days of the end of
each quarterly accounting period, a statement of the
Borrowing Base and its components as of the end of the
immediately preceding quarterly accounting period.
(v) Public Information. Within thirty days
after the same are sent, copies of all reports (other than
those otherwise provided pursuant to subsection 6.1) and
other financial information which the Borrower or any of
its Subsidiaries sends to its public stockholders, and
within thirty days after the same are filed, copies of all
financial statements and non-confidential reports which the
Borrower or any of its Subsidiaries may make to, or file
with, the Securities and Exchange Commission or any
successor or analogous Governmental Authority.
(vi) Other Information. Promptly, such
additional financial and other information as the Agent,
at the request of any Lender, may from time to time
reasonably request.
6.3 Notices.
Give notice to the Agent (which shall promptly transmit such notice
to each Lender) of:
(i) Defaults. Immediately (and in any event
within two (2) Business Days) after any of the Borrower or
its Subsidiaries knows or has reason to know thereof, the
occurrence of any Default or Unmatured Default.
(ii) Contractual Obligations. Promptly, the
initiation of any default or event of default under any
Contractual Obligation of the Borrower or any of its
Subsidiaries which would reasonably be expected to have a
Material Adverse Effect.
(iii) Legal Proceedings. Promptly, any
litigation, or any investigation or proceeding (including
without limitation, any environmental proceeding) known to
the Borrower or any of its Subsidiaries, or any material
development in respect thereof, affecting the Borrower or
its Subsidiaries which, if adversely determined, would
reasonably be expected to have a Material Adverse Effect.
(iv) ERISA. Promptly, after any Responsible
Officer of the Borrower knows or has reason to know of (a)
any event or condition, including, but not limited to, any
Reportable Event, that constitutes, or might reasonably
lead to, an ERISA Event; (b) with respect to any
Multiemployer Plan, the receipt of notice as prescribed in
ERISA or otherwise of any withdrawal liability assessed
against any of their ERISA Affiliates, or of a
determination that any Multiemployer Plan is in
reorganization or insolvent (both within the meaning of
Title IV of ERISA); (c) the failure to make full payment
on or before the due date (including extensions) thereof
of all amounts which the Borrower or any of its
Subsidiaries or any ERISA Affiliate are required to
contribute to each Plan pursuant to its terms and as
required to meet the minimum funding standard set forth in
ERISA and the Code with respect; or (d) any change in the
funding status of any Plan that reasonably could be
expected to have a Material Adverse Effect; together with
a description of any such event or condition or a copy of
any such notice and a statement by the chief financial
officer of the Borrower briefly setting forth the details
regarding such event, condition, or notice, and the action,
if any, which has been or is being taken or is proposed to
be taken by the Borrower and its Subsidiaries with respect
thereto. Promptly upon request, the Borrower and its
Subsidiaries shall furnish the Agent and the Lenders with
such additional information concerning any Plan as may be
reasonably requested, including, but not limited to, copies
of each annual report/return (Form 5500 series), as well
as all schedules and attachments thereto required to be
filed with the Department of Labor and/or the Internal
Revenue Service pursuant to ERISA and the Code,
respectively, for each "plan year" (within the meaning of
Section 3(39) of ERISA).
(v) Other. Promptly, any other development or
event which a Responsible Officer determines could
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by
a statement of a Responsible Officer setting forth details of
the occurrence referred to therein and stating what action the
Borrower and its Subsidiaries propose to take with respect
thereto.
6.4. Use of Proceeds.
The Borrower will, and will cause each Subsidiary to, use the
proceeds of the Extensions of Credit for working capital borrowings,
the issuance of standby and documentary letters of credit and general
corporate purposes. The Borrower will not, nor will it permit any
Subsidiary to, use any of the proceeds of the Loans to purchase or
carry any "margin stock" (as defined in Regulation U).
6.5. Conduct of Business.
The Borrower will, and will cause each Subsidiary to, carry on and
conduct its business in substantially the same manner and in
substantially the same fields of enterprise as it is presently
conducted (including the establishment of any foreign Subsidiaries
for the purpose of providing financing to the Borrower and its
Subsidiaries) and to do all things necessary to remain duly
incorporated, validly existing and in good standing as a domestic
corporation in its jurisdiction of incorporation and maintain all
rights, privileges, licenses, and franchises necessary or desireable
and all other requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
6.6. Taxes.
The Borrower will, and will cause each Subsidiary to, pay when due
all taxes, assessments and governmental charges, levies and other
obligations upon it or its income, profits or Property, except those
which are being contested in good faith by appropriate proceedings
and with respect to which, in the aggregate, adequate reserves have
been set aside.
6.7. Insurance.
The Borrower will, and will cause each Subsidiary to, maintain with
financially sound and reputable insurance companies insurance on all
their Property in such amounts and covering such risks as is
consistent with sound business practice, and the Borrower will
furnish to any Lender upon request all information reasonably
requested as to the insurance carried.
6.8. Compliance with Laws.
The Borrower will, and will cause each Subsidiary to, comply in all
material respects with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject.
6.9. Maintenance of Properties.
The Borrower will, and will cause each Subsidiary to, do all things
reasonably necessary to maintain, preserve, protect and keep in all
material respects its Property in good repair, working order and
condition, and make all necessary and proper repairs, renewals and
replacements so that its business carried on in connection therewith
may be properly conducted at all times provided, however, that
nothing in this Section 6.9 shall prohibit the Borrower or any
Subsidiary from disposing of Properties which the Borrower reasonably
determines is no longer used or useful in the conduct of the business
of the Borrower and its Subsidiaries.
6.10. Inspection.
The Borrower will, and will cause each Subsidiary to, upon
reasonable advance notice to the Borrower, permit the Lenders, by
their respective representatives and agents and at their respective
expense unless a Default has occurred and is continuing, to inspect,
in a commercially reasonable manner, any of the Property, corporate
books and financial records of the Borrower and each Subsidiary, to
examine the books of accounts and other financial records of the
Borrower and each Subsidiary, and to discuss the affairs, finances
and accounts of the Borrower and each Subsidiary with, and to be
advised as to the same by, their respective officers at such
reasonable times and reasonable intervals as the Lenders may
designate.
6.11. Indebtedness.
The Borrower will not, nor will it permit any of its
Subsidiaries to create, incur or suffer to exist any Indebtedness,
except:
(i) Indebtedness arising or existing under this
Agreement and the other Loan Documents;
(ii) Indebtedness set forth in Schedule 6.11, and
renewals, refinancings and extensions thereof (and which in
the case of those 7.36% Senior Notes of the Borrower due
October 15, 2003 shall not have a shorter maturity and shall
be on terms and conditions consistent with those prevailing in
the private placement market at such time);
(iii) Capitalized Lease Obligations and Indebtedness
incurred, in each case, to provide all or a portion of the
purchase price or costs of construction of an asset, provided
that (i) such Indebtedness when incurred shall not exceed the
purchase price or cost of construction of such asset or, in
the case of a sale/leaseback transaction, the fair market
value of such asset, and (ii) no such Indebtedness shall be
refinanced for a principal amount in excess of the principal
balance outstanding thereon at the time of such refinancing;
(iv) Indebtedness and obligations owing under Rate
Hedging Obligations relating to the Obligations hereunder and
under interest rate, commodities and foreign currency exchange
protection agreements entered into in the ordinary course of
business to manage existing or anticipated risks;
(v) unsecured intercompany Indebtedness as permitted
under Section 6.14;
(vi) other unsecured Funded Debt of
(A) the Borrower to the extent that
upon the incurrence thereof no Default or Unmatured
Default shall exist immediately prior to or after
giving effect thereto on a Pro Forma Basis; and
(B) Subsidiaries of the Borrower
which in the aggregate does not exceed (I)
$5,000,000 with respect to that credit facility
extended by The First National Bank of Chicago in
favor of Brown Group Dublin Limited, as amended,
modified, supplemented, extended and replaced, and
(II) $5,000,000, in all other cases;
(vii) commercial letters of credit outside of this
Agreement supporting the importation of goods in the ordinary
course of business not to exceed in the aggregate at any time
outstanding $30,000,000 until September 15, 1997 and
$10,000,000 thereafter; and
(viii) Guaranty Obligations of Indebtedness permitted
under this Section 6.11(i) through 6.11(vii).
6.12. Merger.
The Borrower and any Subsidiary may merge into or consolidate with
any of themselves or any other Person, may dissolve or liquidate into
any of themselves or any other Person, or may sell or transfer any of
their assets to any of themselves or any other Person, provided that
(A) if the Borrower is a party to a merger or consolidation it shall
be the surviving corporation, (B) if a Credit Party other than the
Borrower is a party to a merger or consolidation it shall be the
surviving corporation and if a Domestic Credit Party is a party to
such a merger or consolidation it shall be the surviving corporation,
(C) if the Borrower is a party to a dissolution or liquidation, it
shall receive the assets of the same and may not itself dissolve or
liquidate, (D) if a Credit Party other than the Borrower is a party
to a dissolution or liquidation it shall receive the assets of the
same, (E) no sale or transfer of any assets of any Credit Party shall
be made to any Person other than to another Credit Party except as
and to the extent allowed under Section 6.14 below or as may be
allowed elsewhere in this Credit Agreement or except upon good
consideration received, and (F) immediately after the completion of
any merger, consolidation, dissolution, liquidation or sale or
transfer of any assets as described above in this Section 6.12, no
Default or Unmatured Default shall have occurred and be continuing on
a Pro Forma Basis.
6.13. Sale of Assets.
The Borrower will not, nor will it permit any Subsidiary to, lease,
sell or otherwise dispose of its Property, to any other Person
except:
(i) Sales of inventory in the ordinary course of
business.
(ii) Leases, sales or other dispositions of its Property
that, together with all other Property of the Borrower and its
Subsidiaries previously leased, sold or disposed of as
permitted by this Section 6.13(ii) during the twelve-month
period ending with the month in which any such lease, sale or
other disposition occurs, do not constitute a Substantial
Portion of the Property of the Borrower and its Subsidiaries.
6.14. Investments and Acquisitions.
The Borrower will not, nor will it permit any Subsidiary to, make
or suffer to exist any Investments (including without limitation,
loans and advances to, and other Investments in, Subsidiaries), or
commitments therefor, or create any Subsidiary or become or remain a
partner in any partnership or joint venture, or make any Acquisition
of any Person, except:
(i) Short-term obligations of, or fully guaranteed by,
the United States of America.
(ii) Commercial paper rated A-l or better by Standard
and Poor's Corporation or P-l or better by Moody's Investors
Service, Inc.
(iii) Demand deposit accounts maintained in the
ordinary course of business.
(iv) Certificates of deposit issued by and time deposits
(a) with Shanghai Commercial Bank in an aggregate amount not
exceeding $10,000,000 and (b) with commercial banks (whether
domestic or foreign) having capital and surplus in excess of
$100,000,000.
(v) Investments in Domestic Credit Parties (including
the creation of Subsidiaries).
(vi) Investments in existence on the date hereof and
described in Schedule 6.14 hereto.
(vii) Acquisitions of entities engaged in, or
supporting, substantially the same lines of business as the
Borrower and its Subsidiaries provided (a) if such acquisition
is of the capital stock or equity interests of a Person, such
Person shall (after giving effect to such acquisition of
capital stock or equity interests) be a Subsidiary of the
purchaser, (b) the Board of Directors of the company which is
the subject of the Acquisition shall have approved the
Acquisition, and (c) no Default or Unmatured Default would
exist after giving effect to such Acquisition on a Pro Forma
Basis.
(viii) Loans, advances or accounts receivable on
non-customary terms to independent retailers of the products of
the Borrower or any Subsidiary not in excess of $15,000,000 in
principal amount at any one time outstanding with no more than
an aggregate amount of $5,000,000 in principal amount at any
one time outstanding with any one retailer.
(ix) promissory notes or deferred payment obligations
received in connection with permitted asset sales.
(x) securities received in connection with the
reorganization of a debtor, and/or any of its subsidiaries.
(xi) Investments by Foreign Subsidiaries in Foreign or
Domestic Subsidiaries (including the creation of Subsidiaries).
(xii) Investments in Persons (including the creation
of Subsidiaries) which are not otherwise permitted by the
terms of this Section 6.14 provided (a) the aggregate
outstanding amount of all such Investments shall not at any
time exceed an amount equal to $30,000,000 minus the aggregate
amount of the then outstanding Investments in unconsolidated
Subsidiaries, and (b) the aggregate amount of all such
Investments which are in different lines of business than
those conducted by the Borrower and its Subsidiaries on the
date of this Agreement shall not any time exceed $10,000,000.
6.15. Liens.
The Borrower will not, nor will it permit any Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the Property
of the Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges
or levies on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are
being contested in good faith and by appropriate proceedings and
for which adequate reserves in accordance with generally
accepted principles of accounting shall have been set aside on
its books.
(ii) Liens imposed by law, such as carriers',
warehousemen's and mechanics' liens and other similar liens
arising in the ordinary course of business which secure payment
of obligations not more than 60 days past due or which are being
contested in good faith by appropriate proceedings and for which
adequate reserves shall have been set aside on its books.
(iii) Liens arising out of pledges or deposits under
worker's compensation laws, unemployment insurance, old age
pensions, or other social security or retirement benefits, or
similar legislation.
(iv) Utility easements, building restrictions and such
other encumbrances or charges against real property as are of
a nature generally existing with respect to properties of a
similar character and which do not in any material way affect
the marketability of the same or interfere with the use thereof
in the business of the Borrower or the Subsidiaries.
(v) Liens granted in connection with sales, with recourse
or with limited recourse, of notes receivable or accounts
receivable permitted under Section 6.13.
(vi) Liens on goods shipped under commercial letters of
credit.
(vii) other statutory Liens or Liens created by
operation of law incidental to the conduct of its business or
the ownership of its property and assets which are not incurred
in connection with the borrowing of money or the obtaining of
advances or credit or guaranteeing the obligations of a Person
(including landlord liens) and contractual landlord liens in
jurisdictions that do not provide for statutory landlord liens,
and which do not in the aggregate materially detract from the
value of its property or assets or materially impair the use
thereof in the operation of its business.
(viii) Other Liens securing Indebtedness of the
Borrower or any Subsidiary provided that the sum of (a) all
Indebtedness permitted under Section 6.11(iii) plus (b) all
Indebtedness of the Borrower secured by such Liens shall not at
any time exceed an amount equal to 10% of Consolidated Tangible
Net Worth.
6.16. Affiliates.
The Borrower will not, and will not permit any Credit Parties to,
enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any
payment or transfer to, any Affiliate except in the ordinary course
of business and pursuant to the reasonable requirements of the
Borrower's or such Credit Party's business and upon fair and
reasonable terms no less favorable to the Borrower or such Credit
Party than the Borrower or such Credit Party would obtain in a
comparable arms-length transaction.
6.17. Consolidated Leverage Ratio.
The Borrower will maintain at all times a Consolidated Leverage
Ratio of not more than:
From the Closing Date
to April 30, 1999 .55 to 1.0
May 1, 1999 and
thereafter .50 to 1.0
6.18. Capital Expenditures.
Capital Expenditures (inclusive of acquisitions otherwise permitted
under the terms of this Agreement) for the Borrower and its
Subsidiaries as a group during any fiscal year shall not exceed the
sum of (i) $25,000,000 plus (ii) the unused portion of permitted
Capital Expenditures for the immediately preceding fiscal year
(excluding amounts carried-over from prior years).
6.19. Consolidated Tangible Net Worth.
The Borrower will maintain at all times and on any date of
determination a Consolidated Tangible Net Worth of not less than the
sum of (i) $177,000,000 plus (ii) an amount equal to 50% of the
Consolidated Net Income (if positive), for each full fiscal quarter
of the Borrower from and including the fiscal quarter beginning
August 4, 1996 through and including the Borrower's fiscal quarter
then most recently ended on or prior to such date of determination
plus (iii)an amount equal to 100% of the Net Proceeds from any Equity
Transaction occurring after the Closing Date.
6.20. Consolidated Fixed Charge Coverage.
The Borrower will maintain, as at the end of each of its fiscal
quarters ending during the periods set forth below, a Consolidated
Fixed Charge Coverage Ratio, of not less than the ratio set forth
below opposite each such period:
Period Ratio
------ -----
Closing Date to August 2, 1997 1.30:1.0
August 3, 1997 through and including August 1, 1998 1.35:1.0
August 2, 1998 through and including July 31, 1999 1.40:1.0
August 1, 1999 and thereafter 1.45:1.0
6.21. Investments and Loans.
Neither the Borrower nor any of its Subsidiaries will lend money
or extend credit or make advances to any Person, or purchase or
acquire any stock, obligations or securities of, or any other
interest in, or make any capital contribution to, or otherwise make
an Investment in, any Person except as permitted pursuant to Section
6.14.
6.22. Fiscal Year.
The Borrower will not change its fiscal year, nor will it permit
any Subsidiary to change its financial reporting year.
6.23. Additional Credit Parties.
(i) Domestic Subsidiaries. At any time any Person becomes
a Domestic Subsidiary having assets in excess of $5,000,000, the
Borrower will promptly notify the Agent thereof and cause such
Domestic Subsidiary to become a Guarantor hereunder by (i)
execution of a Joinder Agreement, and (ii) delivery of
supporting resolutions, incumbency certificates, corporation
formation and organizational documentation and opinions of
counsel as the Agent may reasonably request.
(ii) Foreign Subsidiaries. At any time any Person becomes
a Foreign Subsidiary having assets in excess of $5,000,000, the
Borrower will promptly notify the Agent thereof and cause
delivery of supporting resolutions, incumbency certificates,
corporation formation and organizational documentation and
opinions of counsel as the Agent may reasonably request.
6.24. Restricted Payments.
The Borrower will not make or permit any Restricted Payment to
occur, except that so long as no Default or Unmatured Default shall
exist immediately prior to or after giving effect thereto, the
Borrower may make Restricted Payments in an aggregate amount not to
exceed the sum of
(A) $20,000,000 plus
(B) an amount equal to fifty percent (50%) of cumulative
Consolidated Net Income (but only to the extent positive)
accrued quarterly from the beginning of the Borrower's first
fiscal quarter beginning August 4, 1996 as reduced by the
cumulative amount of Restricted Payments made since August 4,
1996.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events
shall constitute a Default:
7.1. Representations.
Any representation or warranty made or deemed made by or on
behalf of the Borrower or any of its Subsidiaries to the Lenders or
the Agent under or in connection with this Agreement, any Loan, or
any certificate or information delivered in connection with this
Agreement or any other Loan Document shall be materially false on
the date as of which made.
7.2. Nonpayment.
Nonpayment of principal of any Note within one Business Day
after the same becomes due, or nonpayment of interest upon any
Note within five days after the same becomes due or nonpayment of
any facility fee or other obligations under the Loan Documents
within two Business Days after demand therefor from the Agent or
any Lender.
7.3. Covenants.
The breach by the Borrower of any of the terms or provisions of
Section 6.4, 6.11, 6.12, 6.14, 6.15, 6.16, 6.17, 6.18, 6.19, 6.20,
6.21 or 6.24.
7.4. Other Covenants.
The breach by the Borrower (other than a breach which
constitutes a Default under Section 7.1, 7.2 or 7.3) of any of the
terms or provisions of this Agreement which is not remedied within
thirty days after written notice from the Agent or any Lender.
7.5. Cross-Default.
Failure of the Borrower or any of its Subsidiaries to pay any
Indebtedness in an aggregate amount of $10,000,000 or more when due
(taking into account any applicable grace periods or notice
provisions); or the default by the Borrower or any of its
Subsidiaries in the performance of any term, provision or condition
contained in any agreement under which any such Indebtedness in an
aggregate amount of $10,000,000 or more was created or is governed,
or any other event shall occur or condition exist, the effect of
which is to cause, or to permit the holder or holders of such
Indebtedness to cause, such Indebtedness to become due prior to its
stated maturity; or any such Indebtedness of the Borrower or any of
its Subsidiaries in an aggregate amount of $10,000,000 or more
shall be declared to be due and payable or required to be prepaid
(other than by a regularly scheduled payment) prior to the stated
maturity thereof.
7.6. Bankruptcy.
The Borrower or any of its Subsidiaries shall (i) have an order
for relief entered with respect to it under the Federal bankruptcy
laws as now or hereafter in effect, (ii) make an assignment for the
benefit of creditors, (iii) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any Substantial
Portion of its Property, (iv) institute any proceeding seeking an
order for relief under the Federal bankruptcy laws as now or
hereafter in effect or seeking to adjudicate it a bankrupt or
insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its
debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or
other pleading denying the material allegations of any such
proceeding filed against it, (v) take any corporate action to
authorize or effect any of the foregoing actions set forth in this
Section 7.6, (vi) fail to contest in good faith any appointment or
proceeding described in Section 7.7 or (vii) the Borrower or any of
its Subsidiaries shall not pay, or admit in writing its inability
to pay, its debts generally as they become due.
7.7. Receivership.
Without the application, approval or consent of the Borrower or
any of its Subsidiaries, a receiver, trustee, examiner, liquidator
or similar official shall be appointed for the Borrower or any of
its Subsidiaries or any Substantial Portion of its Property, or a
proceeding described in Section 7.6(iv) shall be instituted against
the Borrower or any of its Subsidiaries and such appointment
continues undischarged or such proceeding continues undismissed or
unstayed for a period of 30 consecutive days.
7.8. Condemnation.
Any court, government or governmental agency shall condemn,
seize or otherwise appropriate, or take custody or control of (each
a "Condemnation"), all or any portion of the Property of the
Borrower and its Subsidiaries which, when taken together with all
other Property of the Borrower and its Subsidiaries so condemned,
seized, appropriated, or taken custody or control of, during the
twelve-month period ending with the month in which any such
Condemnation occurs, constitutes a Substantial Portion.
7.9. Legal Proceedings.
The Borrower or any of its Subsidiaries shall fail within 30 days
to pay, bond or otherwise discharge any judgment or order for the
payment of money in excess of $5,000,000, which is not stayed or
otherwise being appropriately contested in good faith.
7.10. Defined Benefit Pension Plans.
Any Unfunded Liabilities in excess of $5,000,000 in the aggregate
shall exist or any Reportable Event shall occur in connection with
any Plan.
7.11. Multiemployer Plans.
The Borrower or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan that it has
incurred withdrawal liability to such Multiemployer Plan in an amount
which, when aggregated with all other amounts required to be paid to
Multiemployer Plans by the Borrower or any other member of the
Controlled Group as withdrawal liability (determined as of the date
of such notification), exceeds $5,000,000.
7.12. Other Multiemployer Plans.
The Borrower or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated,
within the meaning of Title IV of ERISA, if as a result of such
reorganization or termination the aggregate annual contributions of
the Borrower and the other members of the Controlled Group (taken as
a whole) to all Multiemployer Plans which are then in reorganization
or being terminated have been or will be increased over the amounts
contributed to such Multiemployer Plans for the respective plan years
of each such Multiemployer Plan immediately preceding the plan year
in which the reorganization or termination occurs by an amount
exceeding $5,000,000.
7.13. Environmental.
The Borrower or any of its Subsidiaries shall be the subject of any
proceeding or investigation pertaining to the release by the Borrower
or any of its Subsidiaries, or any other Person of any toxic or
hazardous waste or substance into the environment, or any violation
of any federal, state or local environmental, health or safety law or
regulation, which, in either case, has a substantial likelihood of
having a Material Adverse Effect.
7.14. Change of Control.
Any Change in Control shall occur.
7.15. Rate Hedging Obligations.
Nonpayment by the Borrower of any Rate Hedging Obligation with net
liability in excess of $100,000 or the breach by the Borrower of any
term, provision or condition contained in any agreement, device or
arrangement giving rise to any Rate Hedging Obligation (taking into
account any applicable grace periods and notice provisions).
7.16 Guaranties.
Except as to a Guarantor which is dissolved, released or merged out
of existence as permitted by the terms of this Agreement, the
guaranty given by any Guarantor hereunder or any material provision
thereof shall cease to be in full force and effect, or any Guarantor
hereunder or any Person acting by or on behalf of such Guarantor
shall deny or disaffirm such Guarantor's obligations under such
guaranty, or any Guarantor shall default in the due performance or
observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any guaranty.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration.
If any Default described in Section 7.6 or 7.7 occurs with respect
to the Borrower, the obligations of the Lenders to make Loans
hereunder shall automatically terminate and the Obligations shall
immediately become due and payable without any election or action on
the part of the Agent or any Lender. If any other Default occurs,
the Required Lenders may terminate or suspend the obligations of the
Lenders to make Loans hereunder, or declare the Obligations to be due
and payable, or both, whereupon the Obligations shall become
immediately due and payable, without presentment, demand, protest or
notice of any kind, all of which the Borrower hereby expressly
waives.
If, within ten days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make
Loans hereunder as a result of any Default (other than any Default as
described in Section 7.6 or 7.7 with respect to the Borrower) and
before any judgment or decree for the payment of the Obligations due
shall have been obtained or entered, the Required Lenders (in their
sole discretion) shall so direct, the Agent shall, by notice to the
Borrower, rescind and annul such acceleration and/or termination.
8.2. Amendments.
Subject to the provisions of this Article VIII, the Required
Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental
hereto for the purpose of adding or modifying any provisions to the
Loan Documents or changing in any manner the rights of the Lenders or
the Borrower hereunder or waiving any Default hereunder; provided,
however, that no such supplemental agreement shall, without the
consent of each Lender affected thereby:
(i) Extend the maturity of any Loan (or any other amount
including Reimbursement Obligations owing hereunder) or Note of
any Lender or forgive all or any portion of the principal amount
thereof or any interest or fees payable, or reduce the rate
(other than as a result of waiving the applicability of any
post-default increase in interest rates) or extend the time of
payment of interest or fees thereon.
(ii) Reduce the percentage specified in the definition of
Required Lenders.
(iii) Extend the Termination Date, reduce the amount
or extend the payment date for, the mandatory payments required
under Section 2.2, or increase the amount of the Commitment of
any Lender hereunder, or permit the Borrower to assign its
rights under this Agreement.
(iv) Amend this Section 8.2.
(v) Release all or substantially all of the Guarantors
from the Guaranty Obligations hereunder.
(vi) Extend the expiration date of any Letter of Credit
beyond two days prior to the Termination Date.
No amendment of any provision of this Agreement relating to the
Agent shall be effective without the written consent of the Agent.
No amendment of any provision of this Agreement relating to the
Guarantors shall be effective without the written consent of the
Guarantors. No amendment shall have the effect of imposing greater
duties or obligations on the Issuing Lender without the written
consent of the Issuing Lender. The Agent may waive payment of the
fee required under Section 12.3.2 without obtaining the consent of
any other party to this Agreement.
8.3. Preservation of Rights.
No delay or omission of the Lenders or the Agent to exercise any
right under the Loan Documents shall impair such right or be
construed to be a waiver of any Default or an acquiescence therein,
and the making of a Loan notwithstanding the existence of a Default
or the inability of the Borrower to satisfy the conditions precedent
to such Loan shall not constitute any waiver or acquiescence. Any
single or partial exercise of any such right shall not preclude other
or further exercise thereof or the exercise of any other right, and
no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in
writing signed by the Lenders required pursuant to Section 8.2, and
then only to the extent in such writing specifically set forth. All
remedies contained in the Loan Documents or by law afforded shall be
cumulative and all shall be available to the Agent and the Lenders
until the Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations.
All representations and warranties of the Credit Parties contained
in this Agreement shall survive delivery of the Notes and the making
of the Loans herein contemplated.
9.2. Governmental Regulation.
Anything contained in this Agreement to the contrary
notwithstanding, no Lender shall be obligated to extend credit to the
Borrower in violation of any limitation or prohibition provided by
any applicable statute or regulation.
9.3. Taxes.
Any taxes (excluding federal income taxes on the overall net income
of any Lender) or other similar assessments or charges made by any
governmental or revenue authority in respect of the Loan Documents
shall be paid by the Borrower, together with interest and penalties,
if any.
9.4. Headings.
Section headings in the Loan Documents are for convenience of
reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
9.5. Entire Agreement.
The Loan Documents embody the entire agreement and understanding
among the Credit Parties, the Agent and the Lenders and supersede all
prior agreements and understandings among the Credit Parties, the
Agent and the Lenders relating to the subject matter thereof.
9.6. Several Obligations; Benefits of this Agreement.
The respective obligations of the Lenders hereunder are several and
not joint and no Lender shall be the partner or agent of any other
(except to the extent to which the Agent is authorized to act as
such). The failure of any Lender to perform any of its obligations
hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as
to confer any right or benefit upon any Person other than the parties
to this Agreement and their respective successors and assigns.
9.7. Expenses; Indemnification.
The Borrower shall reimburse the Agent for any reasonable costs and
reasonable out-of-pocket expenses (including reasonable attorneys'
fees and time charges of attorneys (not to include in-house counsel)
for the Agent) paid or incurred by the Agent in connection with the
preparation, negotiation, execution, delivery, amendment and
modification of the Loan Documents. The Borrower also agrees to
reimburse the Agent and the Lenders for any reasonable costs,
reasonable internal charges and reasonable out-of-pocket expenses
(including reasonable attorneys' fees and time charges of attorneys
for the Agent and the Lenders, which attorneys may be employees of
the Agent or the Lenders) paid or incurred by the Agent or any Lender
in connection with the collection and enforcement of the Loan
Documents. The Borrower further agrees to indemnify the Agent and
each Lender and their respective directors, officers and employees
(each an "Indemnified Person") against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without
limitation, all reasonable expenses of litigation or preparation
therefor whether or not the Agent or any Lender is a party thereto)
(collectively, "Losses") which any of them may pay or incur arising
out of or relating to this Agreement, the other Loan Documents, the
transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Loan
hereunder, except, in respect of any Indemnified Person, for Losses
resulting from the gross negligence or willful misconduct of such
Indemnified Person and except for investigations, litigation or other
proceedings relating solely to claims between or among the Lenders
and except for those matters described in Section 10.8 which relate
solely to reimbursement and indemnity obligations of the Lenders and
not to obligations of the Borrower or other Credit Parties under this
Section 9.7 or any other provision of the Credit Documents. The
obligations of the Borrower under this Section shall survive the
termination of this Agreement.
9.8. Numbers of Documents.
All statements, notices, closing documents, and requests hereunder
shall be furnished to the Agent with sufficient counterparts so that
the Agent may furnish one to each of the Lenders.
9.9. Accounting.
Except as provided to the contrary herein, all accounting terms
used herein shall be interpreted and all accounting determinations
hereunder shall be made in accordance with GAAP.
9.10. Severability of Provisions.
Any provision in any Loan Document that is held to be inoperative,
unenforceable, or invalid in any jurisdiction shall, as to that
jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents
are declared to be severable.
9.11. Nonliability of Lenders.
The relationship between the Borrower and the Lenders and the Agent
shall be solely that of borrower and lender. Neither the Agent nor
any Lender shall have any fiduciary responsibilities to the Borrower.
Neither the Agent nor any Lender undertakes any responsibility to the
Borrower to review or inform the Borrower of any matter in connection
with any phase of the Borrower's business or operations.
9.12. CHOICE OF LAW.
THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY EXPRESS
CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
MISSOURI, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
9.13. CONSENT TO JURISDICTION.
EACH CREDIT PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR MISSOURI STATE COURT
SITTING IN ST. LOUIS, MISSOURI IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND EACH CREDIT PARTY HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN
SHALL LIMIT THE RIGHT OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS
AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION.
ANY JUDICIAL PROCEEDING BY ANY CREDIT PARTY AGAINST THE AGENT OR ANY
LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A
COURT IN ST. LOUIS, MISSOURI.
9.14. WAIVER OF JURY TRIAL.
EACH CREDIT PARTY, THE AGENT AND EACH LENDER HEREBY WAIVE TRIAL BY
JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY,
ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT
OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
9.15. Confidentiality.
Each Lender agrees to hold any confidential information which it
may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to other Lenders and their
respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to that Lender or to a Transferee, (iii) to
regulatory officials, (iv) to any Person as requested pursuant to or
as required by law, regulation, or legal process, (v) to any Person
in connection with any legal proceeding to which that Lender is a
party, and (vi) permitted by Section 12.4.
ARTICLE X
THE AGENT
10.1. Appointment.
The Boatmen's National Bank of St. Louis is hereby appointed Agent
hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Agent to act as the agent of such Lender.
The Agent agrees to act as such upon the express conditions contained
in this Article X. The Agent shall not have a fiduciary relationship
in respect of the Borrower or any Lender by reason of this Agreement.
10.2. Powers.
The Agent shall have and may exercise such powers under the Loan
Documents as are specifically delegated to the Agent by the terms of
each thereof, together with such powers as are reasonably incidental
thereto. The Agent shall have no implied duties to the Lenders, or
any obligation to the Lenders to take any action thereunder except
any action specifically provided by the Loan Documents to be taken by
the Agent.
10.3. General Immunity.
Neither the Agent nor any of its directors, officers, agents or
employees shall be liable to the Credit Parties, the Lenders or any
Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith
or therewith except for its or their own gross negligence or willful
misconduct.
10.4. No Responsibility for Loans, Recitals, etc.
Neither the Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain,
inquire into, or verify (i) any statement, warranty or representation
made in connection with any Loan Document or any borrowing hereunder;
(ii) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information
directly to each Lender; (iii) the satisfaction of any condition
specified in Article IV, except receipt of items required to be
delivered to the Agent and verification that such items appear on
their face to conform to the requirements of this Agreement; or (iv)
the validity, effectiveness or genuineness of any Loan Document or
any other instrument or writing furnished in connection therewith.
The Agent shall have no duty to disclose to the Lenders information
that is not required to be furnished by the Borrower to the Agent at
such time, but is voluntarily furnished by the Borrower to the Agent
(either in its capacity as Agent or in its individual capacity).
10.5. Action on Instructions of Lenders.
The Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder and under any other Loan Document
in accordance with written instructions signed by the Required
Lenders, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders and on all
holders of Notes. The Agent shall be fully justified in failing or
refusing to take any action hereunder and under any other Loan
Document unless it shall first be indemnified to its satisfaction by
the Lenders pro rata against any and all liability, cost and expense
that it may incur by reason of taking or continuing to take any such
action.
10.6. Employment of Agents and Counsel.
The Agent may execute any of its duties as Agent hereunder and
under any other Loan Document by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Lenders, except
as to money or securities received by it or its authorized agents,
for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to
advice of counsel concerning all matters pertaining to the agency
hereby created and its duties hereunder and under any other Loan
Document.
10.7. Reliance on Documents; Counsel.
The Agent shall be entitled to rely upon any Note, notice, consent,
certificate, affidavit, letter, telegram, statement, paper or
document believed by it to be genuine and correct and to have been
signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent,
which counsel may be employees of the Agent.
10.8. Agent's Reimbursement and Indemnification.
The Lenders agree to reimburse and indemnify the Agent ratably in
proportion to their respective Commitments (i) for any amounts not
reimbursed by the Borrower for which the Agent is entitled to
reimbursement by the Borrower under the Loan Documents, (ii) for any
other expenses incurred by the Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration
and enforcement of the Loan Documents and (iii) for any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever
which may be imposed on, incurred by or asserted against the Agent in
any way relating to or arising out of the Loan Documents or any other
document delivered in connection therewith or the transactions
contemplated thereby, or the enforcement of any of the terms thereof
or of any such other documents, provided that no Lender shall be
liable for any of the foregoing to the extent they arise from the
gross negligence or willful misconduct of the Agent. The obligations
of the Lenders under this Section 10.8 shall survive payment of the
Obligations and termination of this Agreement.
10.9. Rights as a Lender.
In the event the Agent is a Lender, the Agent shall have the same
rights and powers hereunder and under any other Loan Document as any
Lender and may exercise the same as though it were not the Agent, and
the term "Lender" or "Lenders" shall, at any time when the Agent is
a Lender, unless the context otherwise indicates, include the Agent
in its individual capacity. The Agent may accept deposits from, lend
money to, and generally engage in any kind of trust, debt, equity or
other transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with the Borrower or any of its
Subsidiaries in which the Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person. The Agent, in
its individual capacity, is not obligated to remain a Lender.
10.l0. Lender Credit Decision.
Each Lender acknowledges that it has, independently and without
reliance upon the Agent or any other Lender and based on the
financial statements prepared by the Borrower and such other
documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the
other Loan Documents. Each Lender also acknowledges that it will,
independently and without reliance upon the Agent or any other Lender
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan
Documents.
10.11. Successor Agent.
The Agent may resign at any time by giving written notice thereof
to the Lenders and the Borrower, such resignation to be effective
upon the appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five days after the retiring Agent gives
notice of its intention to resign. The Agent may be removed at any
time with or without cause by written notice received by the Agent
from the Required Lenders, such removal to be effective on the date
specified by the Required Lenders. Upon any such resignation or
removal, the Required Lenders shall have the right to appoint, on
behalf of the Borrower and the Lenders, a successor Agent. Provided
that no Default then exists and is continuing, the Borrower shall
have the right to consent to such Successor Agent, such consent not
to be unreasonably withheld or delayed. If no successor Agent shall
have been so appointed by the Required Lenders within thirty days
after the resigning Agent's giving notice of its intention to resign,
then the resigning Agent may appoint, on behalf of the Borrower and
the Lenders, a successor Agent. If the Agent has resigned or been
removed and no successor Agent has been appointed, the Lenders may
perform all the duties of the Agent hereunder and the Borrower shall
make all payments in respect of the Obligations to the applicable
Lender and for all other purposes shall deal directly with the
Lenders. No successor Agent shall be deemed to be appointed
hereunder until such successor Agent has accepted the appointment.
Any such successor Agent shall be a commercial bank having capital
and retained earnings of at least $500,000,000. Upon the acceptance
of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the resigning or removed
Agent. Upon the effectiveness of the resignation or removal of the
Agent, the resigning or removed Agent shall be discharged from its
duties and obligations hereunder and under the Loan Documents. After
the effectiveness of the resignation or removal of an Agent, the
provisions of this Article X shall continue in effect for the benefit
of such Agent in respect of any actions taken or omitted to be taken
by it while it was acting as the Agent hereunder and under the other
Loan Documents.
10.12. Sharing Agreement.
The holders of those 7.36% Senior Notes of the Borrower due October
15, 2003 (the "Noteholders") have required as a condition to their
consent to the establishment of the credit facility hereunder that
the Lenders agree to, and the Agent enter into on behalf of the
Lenders, a Sharing Agreement substantially in the form attached as
Schedule 10.12 (the "Sharing Agreement") relating to amounts received
under the Guaranties hereunder and the Set Off Rights (as defined in
the Sharing Agreement). By execution hereof, each Lender hereby
acknowledges, and agrees with each other Lender and with each
Noteholder to be bound by, the terms of the Sharing Agreement and
further authorizes and directs the Agent to enter into the Sharing
Agreement on its behalf. By its execution hereof, each Noteholder
agrees with each Lender to be bound by the terms of the Sharing
Agreement. Notwithstanding anything to the contrary contained in
this Agreement, the agreement of each Lender in this Section 10.12
(and any defined terms used in this Section) cannot be amended,
modified or otherwise changed or waived without the express written
consent of the Noteholders.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff.
In addition to, and without limitation of, any rights of the
Lenders under applicable law, if the Borrower or any other Credit
Party becomes insolvent, however evidenced, or any Default occurs,
any and all deposits (including all account balances, whether
provisional or final and whether or not collected or available) and
any other Indebtedness at any time held or owing by any Lender to or
for the credit or account of the Borrower or such other Credit Party
may be offset and applied toward the payment of the Obligations owing
to such Lender, whether or not the Obligations, or any part hereof,
shall then be due.
11.2. Ratable Payments.
If any Lender, whether by setoff or otherwise, has payment made to
it upon its Obligations (other than payments received pursuant to
Section 3.1, 3.2 or 3.4) in a greater proportion than that received
by any other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Loans held by the other Lenders so that
after such purchase each Lender will hold its ratable proportion of
Loans. If any Lender, whether in connection with setoff or amounts
which might be subject to setoff or otherwise, receives collateral or
other protection for its Obligations or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take
such action necessary such that all Lenders share in the benefits of
such collateral ratably in proportion to their Loans. In case any
such payment is disturbed by legal process, or otherwise, appropriate
further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns.
The terms and provisions of the Loan Documents shall be binding
upon and inure to the benefit of the Credit Parties and the Lenders
and their respective successors and assigns, except that (i) no
Credit Party shall have the right to assign its rights or obligations
under the Loan Documents and (ii) any assignment by any Lender must
be made in compliance with Section 12.3. Notwithstanding clause (ii)
of this Section, any Lender may at any time, without the consent of
the Borrower or the Agent, assign all or any portion of its rights
under this Agreement and its Notes to a Federal Reserve Bank;
provided, however, that no such assignment shall release the
transferor Lender from its obligations hereunder. The Agent may
treat the payee of any Note as the owner thereof for all purposes
hereof unless and until such payee complies with Section 12.3 in the
case of an assignment thereof or, in the case of any other transfer,
a written notice of the transfer is filed with the Agent. Any
assignee or transferee of a Note agrees by acceptance thereof to be
bound by all the terms and provisions of the Loan Documents. Any
request, authority or consent of any Person, who at the time of
making such request or giving such authority or consent is the holder
of any Note, shall be conclusive and binding on any subsequent
holder, transferee or assignee of such Note or of any Note or Notes
issued in exchange therefor.
12.2. Participations.
12.2.1 Permitted Participants; Effect.
Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks
or other entities ("Participants") participating interests in any
Loan owing to such Lender, any Note held by such Lender, any
Commitment of such Lender or any other interest of such Lender under
the Loan Documents. In the event of any such sale by a Lender of
participating interests to a Participant, such Lender's obligations
under the Loan Documents shall remain unchanged, such Lender shall
remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the holder
of any such Note for all purposes under the Loan Documents, all
amounts payable by the Borrower under this Agreement shall be
determined as if such Lender had not sold such participating
interests, and the Credit Parties and the Agent shall continue to
deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents.
12.2.2. Voting Rights.
Each Lender shall retain the sole right to approve, without the
consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Obligation or Commitment
in which such Participant has an interest which forgives principal,
interest or fees or reduces the interest rate or fees payable with
respect to any such Obligation or Commitment, postpones any date
fixed for any regularly-scheduled payment of principal of, or
interest or fees on, any such Obligation or Commitment, releases all
or substantially all of the guarantors of any such Obligation or
releases all or any substantial portion of collateral, if any,
securing any such Loan.
12.2.3. Benefit of Setoff.
The Borrower agrees that each Participant shall be deemed to have
the right of setoff provided in Section 11.1 in respect of its
participating interest in amounts owing under the Loan Documents to
the same extent as if the amount of its participating interest were
owing directly to it as a Lender under the Loan Documents, provided
that each Lender shall retain the right of setoff provided in Section
11.1 with respect to the amount of participating interests sold to
each Participant. The Lenders agree to share with each Participant,
and each Participant, by exercising the right of setoff provided in
Section 11.1, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such amounts to be
shared in accordance with Section 11.2 as if each Participant were a
Lender.
12.3. Assignments.
12.3.1. Permitted Assignments.
Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time assign to one or more
banks or other entities ("Purchasers") all or any part of its rights
and obligations under the Loan Documents. Such assignment shall be
substantially in the form of Exhibit C hereto or in such other form
as may be agreed to by the parties thereto. The consent of the
Borrower and the Agent shall be required prior to an assignment
becoming effective with respect to a Purchaser which is not a Lender
or an Affiliate thereof; provided, however, that if a Default has
occurred and is continuing, the consent of the Borrower shall not be
required. Such consent shall not be unreasonably withheld or
delayed.
12.3.2. Effect; Effective Date.
Upon (i) delivery to the Agent of a notice of assignment,
substantially in the form attached as Exhibit I to Exhibit C hereto
(a "Notice of Assignment"), together with any consents required by
Section 12.3.1, and (ii) payment by the parties to such assignment of
a $3,500 fee to the Agent for processing such assignment, such
assignment shall become effective on the effective date specified in
such Notice of Assignment. The Notice of Assignment shall contain a
representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Commitment and Loans
under the applicable assignment agreement are "plan assets" as
defined under ERISA and that the rights and interests of the
Purchaser in and under the Loan Documents will not be "plan assets"
under ERISA. On and after the effective date of such assignment,
such Purchaser shall for all purposes be a Lender party to this
Agreement and any other Loan Document executed by the Lenders and
shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto,
and no further consent or action by the Borrower, the Lenders or the
Agent shall be required to release the transferor Lender with respect
to the percentage of the Aggregate Commitment and Loans assigned to
such Purchaser. Upon the consummation of any assignment to a
Purchaser pursuant to this Section 12.3.2, the transferor Lender, the
Agent and the Borrower shall make appropriate arrangements so that
replacement Notes are issued to such transferor Lender and new Notes
or, as appropriate, replacement Notes, are issued to such Purchaser,
in each case in principal amounts reflecting their Commitment, as
adjusted pursuant to such assignment.
12.4. Dissemination of Information.
The Borrower and the other Credit Parties authorize each Lender to
disclose to any Participant or Purchaser or any other Person
acquiring an interest in the Loan Documents by operation of law (each
a "Transferee") and any prospective Transferee any and all
information in such Lender's possession concerning the
creditworthiness of the Borrower, the other Credit Parties and their
Subsidiaries; provided that each Transferee and prospective
Transferee agrees in writing and in advance of receipt of any such
information to be bound by a confidentiality agreement in
substantially the form of Exhibit F hereto.
12.5. Tax Treatment.
If any interest in any Loan Document is transferred to any
Transferee which is organized under the laws of any jurisdiction
other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of
Section 2.5.14.
ARTICLE XIII
NOTICES
13.1. Giving Notice.
Except as otherwise permitted by Section 2.5.8 with respect to
borrowing notices, all notices and other communications provided to
any party hereto under this Agreement or any other Loan Document
shall be in writing or by telex or by facsimile and addressed or
delivered to such party at its address set forth below its signature
hereto or at such other address as may be designated by such party in
a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid, shall be deemed given when received;
any notice, if transmitted by telex or facsimile, shall be deemed
given when transmitted (answerback confirmed in the case of telexes).
13.2. Change of Address.
The Borrower, the Agent and any Lender may each change the address
for service of notice upon it by a notice in writing to the other
parties hereto.
ARTICLE XIV
COUNTERPARTS
14.1 Counterparts.
This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one agreement, and any
of the parties hereto may execute this Agreement by signing any
such counterpart. This Agreement shall be effective when it has
been executed by the Credit Parties, the Agent and the Lenders and
each party has notified the Agent by telex or telephone, that it
has taken such action.
ARTICLE XV
GUARANTY
15.1. The Guaranty.
Each of the Guarantors hereby jointly and severally guarantees
to each Lender, to each Affiliate of a Lender that enters into a
Hedging Agreement and to the Agent as hereinafter provided the
prompt payment of the Guaranteed Obligations in full when due
(whether at stated maturity, as a mandatory prepayment, by
acceleration, a mandatory cash collateralization or otherwise)
strictly in accordance with the terms thereof. The Guarantors
hereby further agree that if any of the Guaranteed Obligations are
not paid in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration, as mandatory cash
collateralization or otherwise), the Guarantors will, jointly and
severally, promptly pay the same, without any demand or notice
whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Guaranteed Obligations, the same
will be promptly paid in full when due (whether at extended
maturity, as a mandatory prepayment, by acceleration or otherwise)
in accordance with the terms of such extension or renewal.
Notwithstanding any provision to the contrary contained herein
or in any other of the Loan Documents or Hedging Agreements, to the
extent the obligations of a Guarantor shall be adjudicated to be
invalid or unenforceable for any reason (including, without
limitation, because of any applicable state or federal law relating
to fraudulent conveyances or transfers) then the obligations of
each Guarantor hereunder shall be limited to the maximum amount
that is permissible under applicable law (whether federal or state
and including, without limitation, the Bankruptcy Code). This
Guaranty is a guaranty of payment and not of collection.
15.2. Obligations Unconditional.
The obligations of the Guarantors under Section 15.1 hereof are
joint and several, absolute and unconditional, irrespective of the
value, genuineness, validity, regularity or enforceability of any
of the Loan Documents or Hedging Agreements, or any other agreement
or instrument referred to therein, or any substitution, release or
exchange of any other guarantee of or security for any of the
Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor, it being the intent of this
Section 15.2 that the obligations of the Guarantors hereunder shall
be absolute and unconditional under any and all circumstances.
Each Guarantor agrees that such Guarantor shall have no right of
subrogation, indemnity, reimbursement or contribution against the
Borrower or any other Guarantor of the Guaranteed Obligations for
amounts paid under this Guaranty until such time as the Lenders
(and any Affiliates of Lenders entering into Hedging Agreements)
have been paid in full, all Commitments under the Agreement have
been terminated and no Person or Governmental Authority shall have
any right to request any return or reimbursement of funds from the
Lenders in connection with monies received under the Loan Documents
or Hedging Agreements. Without limiting the generality of the
foregoing, it is agreed that, to the fullest extent permitted by
law, the occurrence of any one or more of the following shall not
alter or impair the liability of any Guarantor hereunder which
shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to
any Guarantor, the time for any performance of or compliance
with any of the Guaranteed Obligations shall be extended, or
such performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions
of any of the Loan Documents, any Hedging Agreement or any
other agreement or instrument referred to in the Loan
Documents or Hedging Agreements shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations
shall be accelerated, or any of the Guaranteed Obligations
shall be modified, supplemented or amended in any respect, or
any right under any of the Loan Documents, any Hedging
Agreement or any other agreement or instrument referred to in
the Loan Documents or Hedging Agreements shall be waived or
any other guarantee of any of the Guaranteed Obligations or
any security therefor shall be released or exchanged in whole
or in part or otherwise dealt with;
(iv) any Lien granted to, or in favor of, the Agent or
any Lender or Lenders or any Affiliate thereof, as security
for any of the Guaranteed Obligations shall fail to attach or
be perfected; or
(v) any of the Guaranteed Obligations shall be
determined to be void or voidable (including, without
limitation, for the benefit of any creditor of any Guarantor)
or shall be subordinated to the claims of any Person
(including, without limitation, any creditor of any
Guarantor).
With respect to its obligations hereunder, each Guarantor hereby
expressly waives diligence, presentment, demand of payment, protest
and all notices whatsoever, and any requirement that the Agent or
any Lender exhaust any right, power or remedy or proceed against
any Person under any of the Loan Documents, any Hedging Agreement
or any other agreement or instrument referred to in the Loan
Documents or Hedging Agreements, or against any other Person under
any other guarantee of, or security for, any of the Guaranteed
Obligations.
15.3. Reinstatement.
The obligations of the Guarantors under this Section 15 shall be
automatically reinstated if and to the extent that for any reason
any payment by or on behalf of any Person in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored
by any holder of any of the Guaranteed Obligations, whether as a
result of any proceedings in bankruptcy or reorganization or
otherwise, and each Guarantor agrees that it will indemnify the
Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, fees and expenses of
counsel) incurred by the Agent or such Lender in connection with
such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such
payment constituted a preference, fraudulent transfer or similar
payment under any bankruptcy, insolvency or similar law.
15.4. Remedies.
The Guarantors agree that, to the fullest extent permitted by
law, as between the Guarantors, on the one hand, and the Agent and
the Lenders, on the other hand, the Guaranteed Obligations may be
declared to be forthwith due and payable as provided in Section 8.1
hereof (and shall be deemed to have become automatically due and
payable in the circumstances provided in said Section 8.1) for
purposes of Section 15.1 hereof notwithstanding any stay,
injunction or other prohibition preventing such declaration (or
preventing the Guaranteed Obligations from becoming automatically
due and payable) as against any other Person and that, in the event
of such declaration (or the Guaranteed Obligations being deemed to
have become automatically due and payable), the Guaranteed
Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Guarantors for
purposes of said Section 15.1.
15.5. Rights of Contribution.
The Guarantors hereby agree, as among themselves, that if any
Guarantor shall become an Excess Funding Guarantor (as defined
below), each other Guarantor shall, on demand of such Excess
Funding Guarantor (but subject to the succeeding provisions of this
Section 15.5), pay to such Excess Funding Guarantor an amount equal
to such Guarantor's Pro Rata Share (as defined below and
determined, for this purpose, without reference to the properties,
assets, liabilities and debts of such Excess Funding Guarantor) of
such Excess Payment (as defined below). The payment obligation of
any Guarantor to any Excess Funding Guarantor under this Section
15.5 shall be subordinate and subject in right of payment to the
prior payment in full of the obligations of such Guarantor under
the other provisions of this Section 15, and such Excess Funding
Guarantor shall not exercise any right or remedy with respect to
such excess until payment and satisfaction in full of all of such
obligations. For purposes hereof, (i) "Excess Funding Guarantor"
shall mean, in respect of any obligations arising under the other
provisions of this Section 15 (hereafter, the "Guarantied
Obligations"), a Guarantor that has paid an amount in excess of its
Pro Rata Share of the Guarantied Obligations; (ii) "Excess Payment"
shall mean, in respect of any Guarantied Obligations, the amount
paid by an Excess Funding Guarantor in excess of its Pro Rata Share
of such Guarantied Obligations; and (iii) "Pro Rata Share", for the
purposes of this Section 15.5, shall mean, for any Guarantor, the
ratio (expressed as a percentage) of (a) the amount by which the
aggregate present fair saleable value of all of its assets and
properties exceeds the amount of all debts and liabilities of such
Guarantor (including contingent, subordinated, unmatured, and
unliquidated liabilities, but excluding the obligations of such
Guarantor hereunder) to (b) the amount by which the aggregate
present fair saleable value of all assets and other properties of
the Borrower and all of the Guarantors exceeds the amount of all of
the debts and liabilities (including contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the
obligations of the Borrower and the Guarantors hereunder) of the
Borrower and all of the Guarantors, all as of the Closing Date (if
any Guarantor becomes a party hereto subsequent to the Closing
Date, then for the purposes of this Section 15.5 such subsequent
Guarantor shall be deemed to have been a Guarantor as of the
Closing Date and the information pertaining to, and only pertaining
to, such Guarantor as of the date such Guarantor became a Guarantor
shall be deemed true as of the Closing Date).
15.6. Continuing Guarantee.
The guarantee in this Section 15 is a continuing guarantee, and
shall apply to all Guaranteed Obligations whenever arising.
[Remainder Intentionally Left Blank]
<PAGE>
IN WITNESS WHEREOF, the Borrower, the Guarantors, the Lenders and
the Agent have executed this Agreement as of the date first above
written.
BORROWER: BROWN GROUP, INC.
By:_________________________
Harry E. Rich,
Executive Vice President and
Chief Financial Officer
8300 Maryland Avenue
P.O. Box 29
St. Louis, MO 63166
Telephone No.: (314) 854-4124
Telecopier No.: (314) 854-4098
GUARANTORS: BROWN GROUP INTERNATIONAL, INC.
BROWN GROUP RETAIL, INC.
PAGODA TRADING COMPANY, INC.
SIDNEY RICH ASSOCIATES, INC.
By:____________________________
Harry E. Rich,
Vice President for each of the
foregoing
8300 Maryland Avenue
P.O. Box 29
St. Louis, MO 63166
Telephone No.: (314) 854-4124
Telecopier No.: (314) 854-4098
<PAGE>
LENDERS: THE BOATMEN'S NATIONAL BANK OF ST. LOUIS,
individually and as Agent
By:
Title:
NationsBank, N.A.
901 Main Street
TX1-49-213-05
Dallas, TX 75283
Attn: Molly Oxford, Agency Services
Telephone No.: (214) 508-3255
Telecopier No.: (214) 508-2118
with a copy to:
One Boatmen's Plaza
800 Market Street, 12th Floor
St. Louis, MO 63166-0236
Attn: Jim Hardin
Telephone No.: (314) 466-7818
Telecopier No.: (314) 466-7783
FIRST CHICAGO CAPITAL MARKETS, INC.
By:
Title:
First Chicago Capital Markets, Inc.
One First National Plaza
National Corporate Banking, Suite 0324
Chicago, IL 60670
Attn: William J. Oleferchik
Telephone No.: (312) 732-2947
Telecopier No.: (312) 732-5296
THE FIRST NATIONAL BANK OF CHICAGO
By:
Title:
First Chicago Capital Markets, Inc.
One First National Plaza
National Corporate Banking, Suite 0324
Chicago, IL 60670
Attn: Ms. Lynn R. Dillon
Telephone No.: (312) 732-7703
Telecopier No.: (312) 732-5296
SUNTRUST BANK, ATLANTA,
By:
Title:
By:
Title:
25 Park Place, 26th Floor
Mail Code 118
Atlanta, GA 30303
Attn: Linda L. Dash
Telephone No.: (404) 658-4923
Telecopier No.: (404) 658-4905
MORGAN GUARANTY TRUST COMPANY
By:
Title:
60 Wall Street
New York, New York 10260-0060
Attn: Stephen J. Hannan
Telephone No.: (212) 642-7679
Telecopier No.: (212) 648-5005
<PAGE>
ROYAL BANK OF CANADA
By:
Title:
New York Branch
Financial Square, 23rd Floor
New York, New York 10005-3531
Attn: Manager, Credit Administration
Telephone No.: (212) 428-6311
Telecopier No.: (212) 428-2372
with a copy to:
1 North Franklin Street
Suite 700
Chicago, IL 60606
Attn: Karen T. Hull, Retail
Group Manager
Telephone No.: (312) 551-1617
Telecopier No.: (312) 551-0805
THE YASUDA TRUST & BANKING LTD.
By:____________________________________
Title:___________________________________
Chicago Branch
181 West Madison
Chicago, IL 60602
Attn: Joseph C. Meek
Telephone No.: (312) 683-3830
Telecopier No.: (312) 683-3899
<PAGE>
THE FIRST NATIONAL BANK OF BOSTON
By:
Title:
Large Corporations
100 Federal Street
Mail Stop 01-0-05
Boston, MA 02110-1802
Attn: Peter L. Griswold
Telephone No.: (617) 434-8312
Telecopier No.: (617) 434-0630
THE SAKURA BANK, LIMITED
By:
Title:
227 W. Monroe Street
Suite 4700
Chicago, IL 60606
Attn: Jim Kershner
Telephone No.: (312) 782-2144
Telecopier No.: (312) 332-5345
<PAGE>
NOTEHOLDERS:
The undersigned holders of the 7.36% Senior Notes of the Borrower
due October 15, 2003 are executing this Agreement for the sole
purpose of evidencing their Agreement set forth in the last
sentence of Section 10.12 regarding the Sharing Agreement.
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By:_________________________________
Vice President
Address:
c/o Prudential Capital Group
2200 Ross Avenue
Suite 4200E
Dallas, Texas 75201
Attn: _____________________
Telephone No.: (214) 720-6200
Telecopier No.: (214) 720-6299
PRUCO LIFE INSURANCE COMPANY
By:_________________________________
Vice President
Address:
c/o Prudential Capital Group
2200 Ross Avenue
Suite 4200E
Dallas, Texas 75201
Attn:__________________________
Telephone No.:
Telecopier No.:
<PAGE>
List of Schedules and Exhibits
Schedule 2.2.1 Schedule of Lenders and Commitments
Schedule 2.3.2-1 Existing Standby Letters of Credit
Schedule 2.3.2-2 Form of Notice of Request for Standby Letter of Credit
Schedule 5.8 Subsidiaries
Schedule 5.14 Ownership of Properties
Schedule 5.14 Intellectual Property
Schedule 6.11 Existing Funded Debt
Schedule 6.14 Investments
Exhibit A Revolving Note
Exhibit B Compliance Certificate
Exhibit C Assignment Agreement
Exhibit D Loan/Credit Related Money Transfer Instruction
Exhibit E Form of Legal Opinion of Counsel to Brown Group, Inc.
Exhibit F Form of Confidentiality Letter
Exhibit G Form of Joinder Agreement
<PAGE>
Schedule 2.2.1
Schedule of Lenders and Commitments
Revolving Revolving
Lender Committed Amount Commitment Percentage
------ ---------------- ---------------------
The Boatmen's National
Bank of St. Louis $41,250,000
The First National
Bank of Chicago $41,250,000
The First National
Bank of Boston $20,000,000
Royal Bank of Canada $15,000,000
Morgan Guaranty Trust
Company $10,000,000
The Sakura Bank, Ltd. $10,000,000
SunTrust Bank, Atlanta $10,000,000
The Yasuda Trust &
Banking Ltd. $7,500,000
-------------
TOTAL $155,0000,000
<PAGE>
Schedule 2.3.2-1
Existing Standby Letters of Credit
<PAGE>
Schedule 2.3.2-2
Form of Notice of Request for Standby Letter of Credit
[Date]
The Boatmen's National The Boatmen's National
of St. Louis of St. Louis
as Issuing Lender under as Agent under the
the Agreement Agreement referred to
referred to below below
901 Main Street 901 Main Street
TX1-49-213-05 TX1-49-213-05
Dallas, Texas 75283 Dallas, Texas 75283
Attention: Agency Services
RE: Credit Agreement dated as of January 9, 1997 (as
amended and modified, the "Agreement") among Brown Group,
Inc., the Guarantors and Lenders identified therein, The
Boatmen's National Bank of St. Louis, as Agent and First
Chicago Capital Markets, Inc., as Syndication Agent. Terms
used but not otherwise defined herein shall have the
meanings provided in the Agreement.
Ladies and Gentlemen:
Pursuant to subsection ______ of the Agreement dated as of
January 9, 1997 among Brown Group, Inc., a New York corporation,
the Guarantors identified therein, the Lenders and The Boatmen's
National Bank of St. Louis, as Agent, the Borrower hereby
requests that the following Letters of Credit be made on [date]
as follows (the "Proposed Extension"):
(1) Account Party:
(2) For use by:
(3) Beneficiary:
(4) Face Amount of Letter of Credit:
(5) Date of Issuance
Delivery of Letter of Credit should be made as follows:
In accordance with the requirements of Section 4.2 of
the Credit Agreement, the undersigned Borrower hereby
certifies that:
(a) The representations and warranties contained in
the Loan Agreement and the other Loan Documents are true and
correct in all material respects as of the date of this
request, and will be true and correct after giving effect to
the requested Extension of Credit (except for those which
expressly relate to an earlier date).
(b) No Default or Unmatured Default exists, or will
exist after giving effect to the requested Extension of
Credit.
(c) As to any Credit Party, no involuntary action has
been commenced under applicable bankruptcy, insolvency or
other similar law in effect, or any case, proceeding or
other action for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar
official) as to any Credit Party or as to any substantial
part of the property of any Credit Party or for the winding
up or liquidation of its affairs, and remains undismissed,
undischarged or unbonded.
(d) No circumstances, events or conditions have
occurred since the date of the audited financial statements
referenced in Section 6.1 of the Credit Agreement which
would have a Material Adverse Effect.
(e) All conditions set forth in Section 2.3.1 as to
the issuance of a Letter of Credit have been satisfied.
Very truly yours,
BROWN GROUP, INC.
By:_______________________________
Name:
Title:
<PAGE>
Schedule 5.8
Subsidiaries
<PAGE>
Schedule 5.09-1
Multiple Employer Plan Withdrawal Liabilties
<PAGE>
Schedule 5.14
Existing Liens on Properties
<PAGE>
Schedule 5.15
Intellectual Property
<PAGE>
Schedule 6.11
Existing Indebtedness
<PAGE>
Schedule 6.14
Investments
<PAGE>
Schedule 10.12
SHARING AGREEMENT
This SHARING AGREEMENT, dated as of January 9, 1997
(this "Agreement"), is entered into by and between THE BOATMEN'S
NATIONAL BANK OF ST. LOUIS ("Boatmen's"), as Agent (in such
capacity, the "Bank Agent") for the institutions under the Bank
Agreement referred to below and the other lenders that become
parties to the Bank Agreement (herein sometimes called the
"Banks"and individually a "Bank"), and THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, a New Jersey corporation ("Prudential"), and
PRUCO LIFE INSURANCE COMPANY, an Arizona corporation ("Pruco Life";
Pruco Life and Prudential being collectively referred to herein as
the "Noteholders"; the Banks, the Bank Agent and the Noteholders
being herein sometimes collectively called the "Lenders" and
individually called a "Lender").
W I T N E S S E T H:
WHEREAS, BROWN GROUP, INC., a New York corporation (the
"Company"), and the Banks and the Bank Agent are entering into a
Credit Agreement, to be dated as of January 9, 1997 (the Credit
Agreement, as amended from time to time, are referred to as the
"Bank Agreement"), pursuant to which, among other things, the Banks
have agreed to make certain loans to the Company;
WHEREAS, payment of certain obligations of the Company to
the Banks and the Bank Agent arising under or in connection with
the Bank Agreement from time to time may be guaranteed by one or
more Subsidiaries (as defined in the Note Agreement referred to
below) of the Company (herein sometimes collectively called the
"Guarantors" and individually called a "Guarantor") pursuant to one
or more guaranty agreements in favor of the Banks and the Bank
Agent (collectively the "Bank Guaranties");
WHEREAS, under applicable law and the terms of the Bank
Agreement, the Banks are entitled to set-off, appropriate and apply
any deposits (general or special (except trust and escrow
accounts), time or demand, including without limitation
indebtedness evidenced by certificates of deposit, in each case
whether matured or unmatured) and any other indebtedness at any
time held or owing by a Bank to or for the credit or account of the
Company, against and on account of liabilities of the Company
under the Bank Agreement, pursuant to law and the terms of the Bank
Agreement (collectively, the "Company Set-Off Rights");
WHEREAS, under applicable law and the terms of the Bank
Guaranties, the Banks may be entitled to set-off, appropriate and
apply any deposits (general or special (except trust and escrow
accounts), time or demand, including without limitation
indebtedness evidenced by certificates of deposit, in each case
whether matured or unmatured) and any other indebtedness at any
time held or owing by a Bank to or for the credit or account of the
Guarantors, against and on account of liabilities of the Guarantors
under the Bank Guaranties (collectively, the "Guarantor Set-Off
Rights"; the Company Set-Off Rights and the Guarantor Set-Off
Rights including any right to receive a lien on amounts previously
subject to the Company Set-Off Rights or the Guarantor Set-Off
Rights, and to recover such amounts, after the commencement of any
action under a Bankruptcy Law (as defined in the Note Agreement)
are collectively referred to herein as the "Set-Off Rights");
WHEREAS, the Company is entering into a Note Agreement
dated as of October 24, 1995 with Prudential and Pruco Life (the
"Note Agreement") for the issuance by the Company and the purchase
by Prudential and Pruco Life of the Company's 7.36% Senior Notes
due October 15, 2003 (the "Senior Notes"); the Bank Agreement, the
Note Agreement and the Senior Notes are collectively referred to
herein as the "Company Loan Documents");
WHEREAS, payment of the obligations of the Company to the
Noteholders arising under or in connection with the Note Agreement
and the Senior Notes from time to time may be guaranteed by the
Guarantors pursuant to one or more guaranty agreements (as amended
or modified and in effect from time to time, the "Noteholder
Guaranties"; the Bank Guaranties and the Noteholder Guaranties
being herein collectively called the "Subject Guaranties" and
individually called a "Subject Guaranty"); and
WHEREAS, the obligations of the Company under the Note
Agreement and the Senior Notes are intended to be pari passu with
obligations of the Company under the Bank Agreement;
WHEREAS, the Lenders have agreed, to enter into this
Agreement so as to evidence the agreement between the Lenders with
respect to certain payments that may be received by the Banks
pursuant to Set-Off Rights and by the Lenders under or in
connection with the Subject Guaranties;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the Lenders hereby agree as
follows:
1. If any Lender shall obtain any payment or other
recovery (whether voluntary, involuntary, by application of setoff
or otherwise) on account of its Subject Guaranty or Subject
Guaranties in excess of its Proportionate Share of payments then or
thereafter obtained by all Lenders with respect to the Subject
Guaranties, such Lender shall purchase from the other Lenders such
participation(s) in the indebtedness of the Company held by such
other Lenders pursuant to the Company Loan Documents as shall be
necessary to cause such purchasing Lender to share such payment or
other recovery ratably, based on Proportionate Shares, with such
selling Lenders; provided, however, that if all or any portion of
such payment or other recovery is thereafter recovered from such
purchasing Lender, the purchase shall be rescinded, and each
selling Lender shall repay to the purchasing Lender the purchase
price, to the ratable extent of such recovery in proportion to the
amount received by such selling Lender, together with an amount
equal to such selling Lender's ratable share (according to the
proportion of (x) the amount of such selling Lender's required
repayment to the purchasing Lender to (y) the total amount so
recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the
total amount so recovered
The term "Proportionate Share", as used herein, shall
mean at any time for each Lender a fraction (a) the numerator of
which is the aggregate amount of the payment obligations of the
Company owed to such Lender at such time pursuant to the Company
Loan Documents and (b) the denominator of which is the aggregate
amount of the payment obligations of the Company owed to all
Lenders at such time pursuant to the Company Loan Documents.
2. If any Lender shall obtain any payment or other
recovery pursuant to Set-Off Rights in excess of its Proportionate
Share (as defined below) of payments then or thereafter obtained by
all Lenders with respect to any Set-Off Rights, such Lender shall
purchase from the other Lenders such participation(s) in the
indebtedness of the Company held by such other Lenders pursuant to
the Company Loan Documents as shall be necessary to cause such
purchasing Lender to share such payment or other recovery ratably,
based on Proportionate Shares, with such selling Lenders;
provided, however, that if all or any portion of such payment or
other recovery is thereafter recovered from such purchasing Lender,
the purchase shall be rescinded, and each selling Lender shall
repay to the purchasing Lender the purchase price, to the ratable
extent of such recovery in proportion to the amount received by
such selling Lender, together with an amount equal to such selling
Lender's ratable share (according to the proportion of (x) the
amount of such selling Lender's required repayment to the
purchasing Lender to (y) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable
by the purchasing Lender in respect of the total amount so
recovered.
3. Each of the Company and each Guarantor, by signing a
copy of this Agreement, agrees that each Lender so purchasing a
participation from another Lender pursuant to Sections 1 or 2
hereof may, to the fullest extent permitted by law, exercise all
its rights of payment (including rights of setoff) with respect to
such participation as fully as if such Lender were the direct
creditor of the Company and such Guarantor in the amount of such
participation. The Company agrees to cause each Subsidiary that
issues a Subject Guaranty to execute a counterpart of the Consent
to this Agreement.
4. If under any applicable bankruptcy, insolvency or
other similar law, any Lender possesses a secured claim, or
receives a secured claim in lieu of a setoff to which Sections 1,
2 or 3 hereof applies, such Lender shall exercise its rights in
respect of such secured claim in a manner consistent with the
rights of the other Lenders in accordance with Sections 1 and 2
hereof.
5. This Agreement shall in all respects be a continuing,
absolute, unconditional and irrevocable agreement, and shall remain
in full force and effect until all obligations of the Company and
the Guarantors to the Lenders shall have been satisfied in full and
all obligations of all Lenders to the other Lenders hereunder shall
have been satisfied in full. Each Lender agrees that this
Agreement shall continue to be effective or be reinstated, as the
case may be, if at any time any payment (in whole or in part) of
any of the obligations of the Company or any of the Guarantors is
rescinded or must otherwise be restored by any Lender, upon the
insolvency, bankruptcy or reorganization of the Company or any of
the Company and the Guarantors or otherwise, as though such payment
had not been made.
6. This Agreement shall be binding upon, and inure to the
benefit of and be enforceable by, the Lenders, each of their
respective successors, transferees and assigns and each person or
entity that purchases a participation in the indebtedness of the
Company or any Guarantor held by a Lender. Without limiting the
generality of the foregoing sentence, any Lender may assign or
otherwise transfer (in whole or in part) to any other person or
entity the obligations of the Company or any of the Guarantors to
such Lender under any of the Company Loan Documents, and such other
person or entity shall thereupon become vested with all rights and
benefits, and become subject to all the obligations, in respect
thereof granted to or imposed upon such Lender under this
Agreement.
7. None of the provisions of this Agreement shall inure
to the benefit of the Company, any of the Guarantors or, except as
provided in Section 6 hereof, any other person other than the
Lenders; consequently, the Company, the Guarantors and any and all
other persons shall not be entitled to rely upon, or to raise as a
defense, in any manner whatsoever, the provisions of this Agreement
or the failure of any Lender to comply with such provisions.
8. No amendment to or waiver of any provision of this
Agreement, nor consent to any departure by any Lender herefrom,
shall in any event be effective unless the same shall be in writing
and signed by the Noteholders and the Bank Agent for and on behalf
of the Banks, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for
which given.
9. All notices and other communications provided to any
Lender under this Agreement shall be in writing or by facsimile and
addressed, delivered or transmitted to the Noteholders and to the
Bank Agent for the Banks at respective addresses or facsimile
numbers set forth below their signatures hereto or at such other
address or facsimile number as may be designated by such party in
a notice to the other parties hereto. Any notice, if mailed and
properly addressed with postage prepaid or if properly addressed
and sent by pre-paid courier service, shall be deemed given when
received; any notice, if transmitted by facsimile, shall be deemed
given when transmitted if actually received, and the burden of
proving receipt shall be on the transmitting Lender.
10. No failure or delay on the part of any Lender in
exercising any power or right under this Agreement shall operate as
a waiver thereof, nor shall any single or partial exercise of any such
power or right preclude any other or further exercise thereof or
the exercise of any other power or right. The remedies herein
provided are cumulative and not exclusive of any remedies provided
by law.
11. Whenever possible each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating
the remainder of such provision or the remaining provisions of this
Agreement.
12.THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK. THIS
AGREEMENT CONSTITUTES THE ENTIRE UNDERSTANDING BETWEEN THE PARTIES HERETO
WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ANY
PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
13.This Agreement may be separately executed in counterparts
and by the different parties hereto in separate counterparts, each of which
when so executed shall be deemed to constitute one and the same
Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed as of the date first above written by
their duly authorized officers.
THE BOATMEN'S NATIONAL BANK
OF ST. LOUIS, as Agent for the lenders
under the Bank Agreement
By:___________________________
Title:
Address:
901 Main Street
Mail Code TX1-49-213
Dallas, Texas 75283
office: (214) 508-3255
fax: (214) 508-2118
Attention: Molly Oxford
800 Market Street
14th Floor, LBP3701
St. Louis, MO 63101
Office: (314) 466-7818
fax: (314) 466-6340
Attention: James Hardin
<PAGE>
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By:___________________________
Vice President
Address:
c/o Prudential Capital Group
2200 Ross Avenue
Suite 4200E
Dallas, Texas 75201
office: (214) 720-6200
fax: (214) 720-6299
Attention: Managing Director
PRUCO LIFE INSURANCE COMPANY
By:
Vice President
Address:
c/o Prudential Capital Group
2200 Ross Avenue
Suite 4200E
Dallas, Texas 75201
Attention: Managing Director
<PAGE>
CONSENT AND AGREEMENT
Each of the undersigned hereby consents to the
provisions of the foregoing Agreement and the transactions
contemplated thereby and specifically agrees to the provisions of
Section 3 of the Agreement (including the provisions regarding
the right of setoff). Each of the undersigned agrees to notify
each Lender promptly of any payment to, or setoff or obtaining of
a secured claim by, the other Lenders contemplated by the
foregoing Agreement.
Dated: _______________, 1997.
BROWN GROUP, INC.
By:__________________________
Title:
GUARANTORS
BROWN GROUP INTERNATIONAL, INC.
BROWN GROUP RETAIL, INC.
PAGODA TRADING COMPANY, INC.
SIDNEY RICH ASSOCIATES, INC.
By: __________________________
Title:
<PAGE>
EXHIBIT A
REVOLVING NOTE
$______________________ January 9, 1997
Brown Group, Inc., a New York corporation (the "Borrower"),
promises to pay to the order of ___________ (the "Lender") the
lesser of the principal sum of Dollars or the
aggregate unpaid principal amount of all Revolving Loans made by
the Lender to the Borrower pursuant to Section 2.2 of the
Agreement (as hereinafter defined), in lawful money of the United
States in immediately available funds at the main office of The
Boatmen's National Bank of St. Louis, as Agent or as otherwise
directed by the Agent pursuant to the terms of the Agreement,
together with interest, in like money and funds, on the unpaid
principal amount hereof at the rates and on the dates set forth
in the Agreement. The Borrower shall pay all Revolving Loans in
full on the Termination Date applicable to such Lender.
The holder may endorse and attach a schedule to reflect
borrowings by this Note and all payments and prepayments thereon;
provided, however, that any failure to so record such information
shall not affect the Borrower's obligations under any Loan
Document.
This Revolving Note is one of the Notes issued pursuant to,
and is entitled to the benefits of, the Agreement dated as of
January 9, 1997 (as the same may be amended or modified and in
effect from time to time, the "Agreement") among the Borrower,
the guarantors named therein, the lenders named therein,
including the Lender and The Boatmen's National Bank of St.
Louis, as Agent, and First Chicago Capital Markets, Inc., as
Syndication Agent, to which Agreement reference is hereby made
for a statement of the terms and conditions under which this
Revolving Note may be prepaid or its maturity date accelerated.
Capitalized terms used herein and not otherwise defined herein
are used with the meanings attributed to them in the Agreement.
BROWN GROUP, INC.
By:
Title:
<PAGE>
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
REVOLVING NOTE OF BROWN GROUP, INC.
Dated as of January 9, 1997
Principal Maturity
Amount of Interest Principal Unpaid
Date of Loan Period Amount Paid Balance
- ---- --------- ----------- ----------- -------
<PAGE>
EXHIBIT B
COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Agreement Described Below
This Compliance Certificate is furnished pursuant to that
certain Agreement dated as of January 9, 1997 (as amended,
modified, renewed or extended and in effect from time to time,
the "Agreement") among Brown Group, Inc. (the "Borrower"), the
guarantors party thereto, the lenders party thereto, The
Boatmen's National Bank of St. Louis, as Agent and First Chicago
Capital Markets, Inc., as Syndication Agent. Unless otherwise
defined herein, capitalized terms used in this Compliance
Certificate have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected ____________________ of the
Borrower;
2. I have reviewed the terms of the Agreement and I have
made, or have caused to be made under my supervision, a detailed
review of the transactions and conditions of the Borrower and its
Subsidiaries during the accounting period covered by the attached
financial statements;
3. During the accounting period most recently ended the
Borrower and its Subsidiaries observed or performed in all
material respects the covenants and other agreements under the
Agreement and the other Loan Documents relating to them, and
satisfied in all material respects the conditions contained in
the Agreement to be observed, performed or satisfied by them;
4. The examinations described in paragraphs 2 did not
disclose, and I have no knowledge of, the existence of any
condition or event which constitutes a Default or Unmatured
Default during or at the end of the accounting period covered by
the attached financial statements or as of the date of this
Certificate, except as set forth below; and
5. Schedule I attached hereto sets forth financial data and
computations evidencing the Borrower's compliance with certain
covenants of the Agreement, all of which data and computations
are true, complete and correct.
Described below are the exceptions, if any, to paragraphs 3
and 4 by listing, in detail, the nature of the condition or
event, the period during which it has existed and the action
which the Borrower has taken, is taking, or proposes to take with
respect to each such condition or event:
The foregoing certifications, together with the computations
set forth in Schedule I hereto and the financial statements
delivered with this Certificate in support hereof, are made and
delivered this day of , 19 .
<PAGE>
SCHEDULE I TO COMPLIANCE CERTIFICATE
Schedule of Compliance as of __________________, 19__ with
the provisions of Sections 6.17, 6.18, 6.19 and 6.20 of the
Agreement.
($000s) Quarter Ended
SECTION 6.17 - CONSOLIDATED LEVERAGE RATIO
CONSOLIDATED FUNDED DEBT
Consolidated Net Worth
Consolidated Funded Debt
CONSOLIDATED CAPITALIZATION
_________:________
SECTION 6.18 - CAPITAL EXPENDITURES
CAPITAL EXPENDITURES $___________
SECTION 6.19 - CONSOLIDATED TANGIBLE NET WORTH
CONSOLIDATED TANGIBLE NET WORTH $___________
SECTION 6.20 - CONSOLIDATED FIXED CHARGE COVERAGE RATIO
Consolidated EBITDA
Rent Expense
CONSOLIDATED ADJUSTED EBITDAR
Consolidated Interest Expense
Rent Expense
CONSOLIDATED FIXED CHARGES
CONSOLIDATED ADJUSTED EBITDAR TO CONSOLIDATED FIXED CHARGES
_________:________
<PAGE>
EXHIBIT C
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement")
between ____________________ (the "Assignor") and ________________
(the "Assignee") is dated as of _____________, 19__. The
parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a
Agreement, dated as of January 9, 1997 (which, as it may be
amended, modified, renewed or extended from time to time, is herein
called the "Agreement"), among Brown Group, Inc. (the "Borrower"),
the guarantors party thereto certain lenders party thereto, The
Boatmen's National Bank of St. Louis, as Agent and First Chicago
Capital Markets, Inc., as Syndication Agent for such lenders.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings attributed to them in the Agreement. The
Assignor desires to assign to the Assignee, and the Assignee
desires to assume from the Assignor, an undivided interest (the
"Purchased Percentage") in the Commitment of the Assignor such that
after giving effect to the assignment and assumption hereinafter
provided, the Commitment of the Assignee shall equal $_____________
and its percentage of the Aggregate Commitment shall equal __%.
2. ASSIGNMENT. For and in consideration of the assumption
of obligations by the Assignee set forth in Section 3 hereof and
the other consideration set forth herein, and effective as of the
Effective Date (as hereinafter defined), the Assignor does hereby
sell, assign, transfer and convey to the Assignee all of its right,
title and interest in and to the Purchased Percentage of (i) the
Commitment of the Assignor (as in effect on the Effective Date),
(ii) each Revolving Loan made by the Assignor outstanding on the
Effective Date and (iii) the Agreement and the other Loan
Documents. Pursuant to Section 12.3.2 of the Agreement, on and
after the Effective Date the Assignee shall have the same rights,
benefits and obligations as the Assignor had under the Loan
Documents with respect to the Purchased Percentage of the Loan
Documents, all determined as if the Assignee were a "Lender" under
the Agreement with % of the Aggregate Commitment. The Effective
Date shall be the later of ___________ or two Business Days (or
such shorter period agreed to by the Agent) after a Notice of
Assignment substantially in the form of Exhibit I attached hereto
and any consents substantially in the form of Exhibit II attached
hereto required to be delivered to the Agent by Section 12.3 of the
Agreement have been delivered to the Agent. In no event will the
Effective Date occur if the payments required to be made by the
Assignee to the Assignor on the Effective Date under Sections 4 and
5 hereof are not made on the proposed Effective Date. The Assignor
will notify the Assignee of the proposed Effective Date on the
Business Day prior to the proposed Effective Date.
3. ASSUMPTION. For and in consideration of the assignment
of rights by the Assignor set forth in Section 2 hereof and the
other consideration set forth herein, and effective as of the
Effective Date, the Assignee does hereby accept that assignment,
and assume and covenant and agree fully, completely and timely to
perform, comply with and discharge, each and all of the
obligations, duties and liabilities of the Assignor under the
Agreement which are assigned to the Assignee hereunder, which
assumption includes, without limitation, the obligation to fund the
unfunded portion of the Aggregate Commitment in accordance with the
provisions set forth in the Agreement as if the Assignee were a
"Lender" under the Agreement with % of the Aggregate
Commitment. The Assignee agrees to be bound by all provisions
relating to "Lenders" under and as defined in the Agreement,
including, without limitation, provisions relating to the
dissemination of information and the payment of indemnification.
4. PAYMENT OBLIGATIONS. On and after the Effective Date, the
Assignee shall be entitled to receive from the Agent all payments
of principal, interest and fees with respect to the Purchased
Percentage of the Assignor's Commitment and Loans. The Assignee
shall advance funds directly to the Agent with respect to each Loan
and reimbursement payments made on or after the Effective Date.
In consideration for the transfer of the assigned obligations
hereunder, with respect to each Loan made by the Assignor
outstanding on the Effective Date, the Assignee shall pay the
Assignor on the Effective Date (or, if Assignee so elects with
respect to each Loan bearing interest at a Fixed Rate, on the
Payment Date, as hereinafter defined) an amount equal to the
Purchased Percentage of any such Loan. If the Assignee elects to
make such payment on the Effective Date, with respect to any Loan
made by Assignor outstanding on the Effective Date which bears
interest at a fixed rate (each an "Outstanding Eurodollar Loan"),
Assignee shall be entitled to receive interest at a rate agreed
upon by the Assignee and the Assignor (the "Outstanding Eurodollar
Loan Interest Rate") for the remainder of the existing Interest
Period. When Assignee receives interest on the Purchased
Percentage of any Outstanding Eurodollar Loan, Assignee shall remit
to Assignor the excess of (a) the interest received by Assignee on
the Outstanding Eurodollar Loan over (b) the Outstanding Eurodollar
Loan Interest Rate. In the event Assignee elects not to pay the
Assignor the Purchased Percentage of any such Outstanding
Eurodollar Loan on the Effective Date, the Assignee shall pay the
Assignor an amount equal to the Purchased Percentage of such
Outstanding Eurodollar Loan (a) on the last day of the Interest
Period therefor or (b) on such earlier date agreed to by the
Assignor and the Assignee or (c) on the date on which any such
Outstanding Eurodollar Loan either becomes due (by acceleration or
otherwise) or is prepaid (the date as described in the foregoing
clauses (a), (b) or (c) being hereinafter referred to as the
"Payment Date"). In the event interest for the period from the
Effective Date to but not including the Payment Date is not paid
by the Borrower with respect to any Outstanding Eurodollar Loan
sold by the Assignor to the Assignee pursuant to the preceding
sentence, the Assignee shall pay to the Assignor interest for such
period on such Outstanding Eurodollar Loan at the applicable rate
provided by the Agreement. In the event of a prepayment of any
Outstanding Eurodollar Loan, Assignee shall remit to Assignor the
excess of (a) the amount received by the Assignee as breakage costs
over (b) the amount which would have been received by the Assignee
as a prepayment penalty if the amount of prepayment penalty was
based on Outstanding Eurodollar Loan Interest Rate. On and after
the Effective Date, the Assignee will also remit to the Assignor
any amounts of interest on Loans and fees received from the Agent
which relate to the Purchased Percentage of Loans made by the
Assignor accrued for periods prior to the Effective Date or the
Payment Date as applicable. In the event that either party hereto
receives any payment to which the other party hereto is entitled
under this Assignment Agreement, then the party receiving such
amount shall promptly remit it to the other party hereto. ***[This
Section subject to modification by the Assignor and the
Assignee]***
5. FEES PAYABLE BY ASSIGNEE. On each day on which the
Assignee receives a payment of interest or fees under the Agreement
(other than a payment of interest or fees which the Assignee is
obligated to deliver to the Assignor pursuant to Section 4 hereof,
which shall be excluded in determining fees payable to the Assignor
pursuant to this Section), the Assignee shall pay to the Assignor
a fee. The amount of such fee shall be the difference between (i)
the amount of such interest or fee, as applicable, received by the
Assignee and (ii) the amount of the interest or fee, as applicable,
which would have been received by the Assignee if each interest
rate was ___ of 1% less than the interest rate paid by the
Borrower or if the facility fee was ___ of 1% less than the
facility fee paid by the Borrower pursuant to Section 2.4.2, as
applicable. In addition, the Assignee agrees to pay ___% of the
fee required to be paid to the Agent pursuant to Section 12.3.2 of
the Agreement. ***[This Section subject to modification by the
Assignor and the Assignee]***
6. CREDIT DETERMINATION; LIMITATIONS ON ASSIGNOR'S LIABILITY.
The Assignee represents and warrants to the Assignor that it is
capable of making and has made and shall continue to make its own
credit determinations and analysis based upon such information as
the Assignee deemed sufficient to enter into the transaction
contemplated hereby and not based on any statements or
representations by the Assignor, the Agent or any Lender. It is
understood and agreed that the assignment and assumption hereunder
are made without recourse to the Assignor and that the Assignor
makes no representation or warranty of any kind to the Assignee and
shall not be responsible for (i) the due execution, legality,
validity, enforceability, genuineness, sufficiency or
collectability of the Agreement or any other Loan Document,
including without limitation, documents granting the Assignor and
the other Lenders a security interest in assets of the Borrower or
any guarantor, (ii) any representation, warranty or statement made
in or in connection with any of the Loan Documents, (iii) the
financial condition or creditworthiness of the Borrower or any
guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting
any of the property, books or records of the Borrower or (vi) the
validity, enforceability, perfection, priority, condition, value
or sufficiency of any collateral securing or purporting to secure
the Loans. Neither the Assignor nor any of its officers,
directors, employees, agents or attorneys shall be liable for any
mistake, error of judgment, or action taken or omitted to be taken
in connection with the Loans or the Loan Documents, except for its
or their own bad faith or willful misconduct.
7. INDEMNITY. The Assignee agrees to indemnify and hold the
Assignor harmless against any and all losses, costs and expenses
(including, without limitation, reasonable attorneys' fees, which
attorney's may be employees of the Assignee) and liabilities
incurred by the Assignor in connection with or arising in any
manner from the Assignee's performance or non-performance of
obligations assumed under this Assignment Agreement.
8. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the
Assignee shall have the right pursuant to Section 12.3 of the
Agreement to assign the rights which are assigned to the Assignee
hereunder to any entity or person, provided that (i) any such
subsequent assignment does not violate any of the terms and
conditions of the Loan Documents or any law, rule, regulation,
order, writ, judgment, injunction or decree and that any consent
required under the terms of the Loan Documents has been obtained,
(ii) the assignee under such assignment from the Assignee shall
agree to assume all of the Assignee's obligations hereunder in a
manner satisfactory to the Assignor and (iii) the Assignee is not
thereby released from any of its obligations to the Assignor
hereunder.
9. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in
the Aggregate Commitment occurs between the date of this Assignment
Agreement and the Effective Date, the percentage of the Aggregate
Commitment assigned to the Assignee shall remain the percentage
specified in Section 1 hereof and the dollar amount of the
Commitment of the Assignee shall be recalculated based on the
reduced Aggregate Commitment.
10. ENTIRE AGREEMENT. This Assignment Agreement ****[and the
attached consent]**** embody the entire agreement and understanding
between the parties hereto and supersede all prior agreements and
understandings between the parties hereto relating to the subject
matter hereof.
11. GOVERNING LAW. This Assignment Agreement shall be
governed by the internal law, and not the law of conflicts, of the
State of Missouri.
12. NOTICES. Notices shall be given under this Assignment
Agreement in the manner set forth in the Agreement. For the
purpose hereof, the addresses of the parties hereto (until notice
of a change is delivered) shall be the address set forth under each
party's name on the signature pages hereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment Agreement by their duly Responsible Officers as of the
date first above written.
[NAME OF ASSIGNOR]
By:
Title:
[NAME OF ASSIGNEE]
By:
Title:
<PAGE>
EXHIBIT I to EXHIBIT C
NOTICE OF ASSIGNMENT
To: Brown Group, Inc.*
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS, as Agent
From: [NAME OF ASSIGNOR]
[NAME OF ASSIGNEE]
__________, 19__
1. We refer to that Agreement dated as of January 9,
1997 (which, as it may be amended, modified, renewed or extended
and in effect from time to time, is herein called the "Agreement")
among Brown Group, Inc. (the "Borrower"), the guarantors party
thereto (the "Guarantors") certain lenders party thereto (each a
"Lender"), including ___________________________ (the "Assignor"),
The Boatmen's National Bank of St. Louis, as agent for the Lenders
(as such, the "Agent") and First Chicago Capital Markets, Inc., as
Syndication Agent. Capitalized terms used herein and in any
consent delivered in connection herewith and not otherwise defined
herein or in such consent shall have the meanings attributed to
them in the Agreement.
2. This Notice of Assignment (this "Notice") is given
and delivered to ****[the Borrower and]**** the Agent pursuant to
Section 12.3.2 of the Agreement.
3. The Assignor and ___________________ (the
"Assignee") have entered into an Assignment Agreement, dated as of
______________, 19__, pursuant to which, among other things, the
Assignor has sold, assigned, delegated and transferred to the
Assignee, and the Assignee has purchased, accepted and assumed from
the Assignor, an undivided interest in and to all of the Assignor's
rights and obligations under the Agreement such that Assignee's
percentage of the Aggregate Commitment shall equal _____%,
effective as of the "Effective Date" (as hereinafter defined). The
"Effective Date" shall be the later of ________ or two Business
*To be included only if consent must be obtained from the Borrower
pursuant to Section 12.3.1 of the Agreement.
Days (or such shorter period as agreed to by the Agent) after this
Notice of Assignment and any consents and fees required by Sections
12.3.1 and 12.3.2 of the Agreement have been delivered to the
Agent, provided that the Effective Date shall not occur if any
condition precedent agreed to by the Assignor and the Assignee has
not been satisfied.
4. As of this date, the percentage of the Assignor in
the Aggregate Commitment and Revolving Loans is ____%. As of the
Effective Date, the percentage of the Assignor in the Aggregate
Commitment and Revolving Loans will be % (as such percentage
may be reduced or increased by assignments which become effective
prior to the assignment to the Assignee becoming effective) and the
percentage of the Assignee in the Aggregate Commitment and
Revolving Loans will be ____%.
5. The Assignor and the Assignee hereby give to the
****[Borrower and the]**** Agent notice of the assignment and
delegation referred to herein. The Assignor will confer with the
Agent before _______, 19__ to determine if the assignment to the
Assignee will become effective on such date pursuant to Section 3
hereof, and will confer with the Agent to determine the Effective
Date pursuant to Section 3 hereof if it occurs thereafter. The
Assignor shall notify the Agent if the assignment to the Assignee
does not become effective on any proposed Effective Date as a
result of the failure to satisfy the conditions precedent agreed
to by the Assignor and the Assignee. At the request of the Agent,
the Assignor will give the Agent written confirmation of the
occurrence of the Effective Date.
6. The Assignee hereby accepts and assumes the
assignment and delegation referred to herein and agrees as of the
Effective Date (i) to perform fully all of the obligations under
the Agreement which it has hereby assumed and (ii) to be bound by
the terms and conditions of the Agreement as if it were a "Lender".
7. The Assignor and the Assignee request and agree that
any payments to be made by the Agent to the Assignor on and after
the Effective Date shall, to the extent of the assignment referred
to herein, be made entirely to the Assignee, it being understood
that the Assignor and the Assignee shall make between themselves
any desired allocations.
8. The Assignor or the Assignee shall pay to the Agent
on or before the Effective Date the processing fee of $2,500
required by Section 12.3.2 of the Agreement.
9. The Assignor and the Assignee request and direct
that the Agent prepare and cause the Borrower to execute and
deliver [new Notes or, as appropriate,] replacement Notes, to the
Assignor and the Assignee in accordance with Section 12.3.2 of the
Agreement. The Assignor [and the Assignee] agree[s] to deliver to
the Agent the original Notes received from it by the Borrower upon
its receipt of new Notes in the amounts set forth above.
10. The Assignee advises the Agent that the address
listed below is its address for notices under the Agreement:
___________________
___________________
___________________
<PAGE>
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
Title: Title:
<PAGE>
EXHIBIT II to EXHIBIT C
CONSENT AND RELEASE
TO: [NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
________________, 19__
1. We acknowledge receipt from ____________________ (the
"Assignor") and _______________________ (the "Assignee") of the
Notice of Assignment, dated as of ______________, 19__ (the
"Notice"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Notice.
****[2. In consideration of the assumption by the Assignee
of the obligations of the Assignor as referred to in the Notice,
the Borrower hereby (i) irrevocably consents, as required by
Section 12.3.1 of the Agreement, to the assignment and delegation
referred to in the Notice and (ii) as of the Effective Date,
irrevocably reduces the percentage of the Assignor in the Aggregate
Commitment by the percentage of the Aggregate Commitment assigned
to the Assignee and releases the Assignor from all of its
obligations to the Borrower under the Loan Documents to the extent
that such obligations have been assumed by the Assignee.]****
3. The Agent is hereby requested to prepare for issuance
by the Borrower new Notes as requested by the Assignor and the
Assignee in the Notice.
****[4. In consideration of the assumption by the Assignee
of the obligations of the Assignor as referred to in the Notice,
the Agent hereby (i) irrevocably consents, as required by Section
12.3.1 of the Agreement, to the assignment and delegation referred
to in the Notice, (ii) as of the Effective Date, irrevocably
releases the Assignor from its obligations to the Agent under the
Loan Documents to the extent that such obligations have been
assumed by the Assignee, and (iii) agrees that, as of the Effective
Date, the Agent shall consider the Assignee as a "Lender" for all
purposes under the Loan Documents to the extent of the assignment
and delegation referred to in the Notice.]****
THE BROWN GROUP, INC. THE BOATMEN'S NATIONAL BANK OF ST. LOUIS,
as Agent
By: By:
Title: Title:
****Paragraphs 2 and 4 are to be included only if the consent of
the Borrower and/or the Agent is required pursuant to Section
12.3.1 of the Agreement.
<PAGE>
EXHIBIT D
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To: The Boatmen's National Bank of St. Louis,
as Agent (the "Agent") under the Agreement
Described Below.
Re: Agreement dated as of January 9, 1997 (as the same may be
amended or modified and in effect, the "Agreement") among Brown
Group, Inc. (the "Borrower"), the Guarantors named therein, the
Lenders named therein and the Agent.
Terms used herein and not otherwise defined shall have the
meanings assigned thereto in the Agreement.
The Agent is specifically authorized and directed to act upon
the following standing money transfer instructions with respect to
the proceeds of Loans or other extensions of credit from time to
time until receipt by the Agent of a specific written revocation of
such instructions by the Borrower, provided, however, that the
Agent may otherwise transfer funds as hereafter directed in writing
by the Borrower in accordance with Section 13.1 of the Agreement or
based on any telephonic notice made in accordance with Section
2.5.8 of the Agreement.
Facility Identification Number(s)
Customer/Account Name Brown Group, Inc.
Transfer Funds To The Boatmen's National Bank of St. Louis
[Routing No. 0810-0003-2]
For Account No. 100101058829
Reference/Attention To Treasurer
Responsible Officer (Customer Representative) Date
_________________________ ________________________
(Please Print) Signature
Bank Officer Name Date
_________________________ ________________________
(Please Print) Signature
(Deliver Completed Form to Credit Support Staff For Immediate
Processing)
<PAGE>
EXHIBIT E
[Form of Legal Opinion of Counsel to Brown Group, Inc.
January 9, 1997
TO THE AGENT AND THE LENDERS
PARTY TO THE CREDIT AGREEMENT
RE: $155,000,000 Credit Agreement dated as of the date
hereof (the "Credit Agreement") among Brown
Group, Inc., a New York corporation, the Guarantors
and Lenders identified therein, The Boatmen's National
Bank of St. Louis, as Agent and First Chicago Capital
Markets, Inc., as Syndication Agent. Terms used but not
otherwise defined shall have the meanings provided in
the Credit Agreement.
Ladies and Gentlemen:
I have acted as general counsel to Brown Group, Inc., a New York
corporation (the "Borrower"), and those subsidiaries and affiliates
of the Borrower which are Guarantors under the Credit Agreement
identified on Schedule A attached hereto (collectively with the
Borrower, the "Credit Parties"), in connection with the execution
and delivery by them of the Credit Agreement.
This opinion is given in accordance with the requirements of
Section 4.1(v) of the Credit Agreement.
I have participated in the preparation of the Credit Agreement
and the other Loan Documents, and have examined copies of the
foregoing documents executed by the Credit Parties. I have also
examined such certificates, documents and records, and have made
such examination of law, as we have deemed necessary to enable us
to render the opinions expressed below. In addition, I have
examined and relied as to matters of fact upon representations and
warranties contained in the Loan Documents and in certificates,
copies of which have been furnished to you, in connection with the
Loan Documents.
For purposes of paragraph 4 below, I have assumed that the Loan
Documents are the legal, valid and binding obligations of the
parties hereto other than the Credit Parties, enforceable against
them in accordance with their respective terms.
The opinions expressed below are limited to matters governed
by the internal laws of the State of Missouri, the corporate laws
of the respective states of incorporation of each Credit Party, and
the federal laws of the United States of America.
Whenever the phrase "to the best of my knowledge" is used
herein, it refers to the actual knowledge of the attorneys of
this organization involved in the representation of the Credit
Parties.
Based on the foregoing, and subject to the qualifications
stated herein, I am of the opinion that:
1. Each of the Credit Parties is a corporation duly
organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, as identified on
Schedule A attached hereto, and qualified to carry on their
business in the manner as contemplated under the Loan Documents
and as now conducted.
2. Each of the Credit Parties has all requisite corporate
power and authority, and the legal right, to make, execute,
deliver and perform the Credit Agreement and the other Loan
Documents to which it is a party and to borrow and accept
extensions of credit or give a guaranty in respect thereof, as
appropriate, and has taken all necessary corporate action to
authorize the execution, delivery and performance of the Credit
Agreement and the other Loan Documents to which it is a party.
3. Except as disclosed to the Lenders in writing, no
consent or authorization of, filing with, notice to or other
similar act by or in respect of, any federal court or
Governmental Authority or any other Person is required to be
obtained or made by or on behalf of any Credit Party on or prior
to the date hereof in connection with the execution, delivery or
performance of the Loan Documents, except for such consents,
approvals, authorizations or other actions as have been obtained
or made.
4. The Credit Agreement, and each of the other Loan
Documents to which it is a party, have been duly executed and
delivered by each Credit Party and constitute the legal, valid
and binding obligations of each Credit Party, enforceable in
accordance with their respective terms except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
enforceability of creditors' rights generally and by general
equitable principles (whether enforcement is sought by
proceedings in equity or at law).
5. The execution, delivery and performance by each Credit
Party of the Credit Agreement and the other Loan Documents to
which it is a party, the borrowings and guaranties thereunder and
the use of the proceeds thereof will not violate or otherwise
contravene the articles of incorporation or bylaws of any of the
Credit Parties or any Requirement of Law, or to the best of our
knowledge, any Contractual Obligation of any of the Credit
Parties.
6. To the best of our knowledge, no litigation,
investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or threatened by or against any
Credit Party or against any of its properties or revenues (i)
with respect to the Loan Documents or any Extension of Credit or
any of the transactions contemplated hereby, and (ii) which, if
adversely determined, would reasonably be expected to have a
Material Adverse Effect.
The opinions expressed herein do not purport to cover, and
we express no opinion with respect to, the applicability of
Section 548 of the federal Bankruptcy Code or any comparable
provision of state law, including the provisions relating to
fraudulent conveyances. I call your attention to the fact that
certain cases have held that an obligation of a corporation
incurred to purchase such corporation's stock is subordinate to
the claims of general creditors upon the bankruptcy or insolvency
of the corporation. In addition, I express no opinion as to
whether a subsidiary may guarantee, become a joint and several
obligor or otherwise become liable for, or pledge its assets to
secure, indebtedness incurred by its parent or another subsidiary
of its parent except to the extent such subsidiary may be
determined to have benefitted from the incurrence of such
indebtedness by its parent or such other subsidiary, or as to
whether such benefit may be measured other than by the extent to
which the proceeds of the indebtedness incurred by its parent or
such other subsidiary are directly or indirectly made available
to such subsidiary for its corporate purposes.
This opinion is rendered solely for your benefit, and the
benefit of your successors and assigns, in connection with the
transactions described above. This opinion may not be used or
relied upon by any other person without our prior written
consent.
Very truly yours,
<PAGE>
Schedule A
to Legal Opinion
Credit Party Jurisdiction of Incorporation
------------ -----------------------------
Borrower
- --------
Brown Group, Inc. New York
Guarantors
- ----------
EXHIBIT F
[FORM OF CONFIDENTIALITY LETTER]
______________, 19___
Re: Brown Group, Inc. (the "Borrower")
Dear :
You have asked to receive from us certain information with
respect to the Borrower which is non-public, confidential or
proprietary in nature (collectively, the "Information") in order to
evaluate your possible participation in certain credit facilities
extended or to be extended to the Borrower ("the Credit
Facilities"). In consideration of our disclosure to you of the
Information, as you agree as follows:
1. Non-Disclosure. You will keep the information confidential
and, without our prior written consent, you will not disclose any
of the Information except:
(a) to your directors, employees, auditors or counsel
(collectively "representatives") to whom it is necessary to show
the Information, each of which shall be informed by your of the
confidential nature of the Information;
(b) in any statement or testimony pursuant to a subpoena or
order by any court, governmental body or other agency asserting
jurisdiction over you, or as may otherwise be required by law
(provided that you shall give us prior notice of the disclosure
permitted by this clause (b) unless such notice is prohibited by
the subpoena, order or law); and
(c) upon the request or demand of any regulatory agency or
authority having jurisdiction over you.
2. Use of Information. You will use the Information only for
the purposes of evaluating the proposed Credit Facilities and
making any necessary credit judgments with respect thereto. You
will not use the Information in a manner prohibited by any law,
including without limitation, the securities laws of the United
States.
3. Return of Documents. You will, upon demand, return to us
all documents or other written material received from us and all
copies thereof made by you which contain the Information which have
not been properly disposed of by you.
4. Public Information. The restrictions contained herein shall
not apply to Information which (a) is or becomes generally
available to the public other than as a result of a disclosure by
you or your representatives; (b) becomes available to you on a non-
confidential basis form a source other than us or one of our agents
or (c) was known to you on a non-confidential basis prior to its
disclosure to you by us or one of our agents.
5. Disclaimer. It is understood and agreed that we are under
no obligation to verify the accuracy of any of the Information and
make no representation or warranty of any kind, and shall have no
liability with respect to, the accuracy, completeness or
sufficiency of the Information.
6. General Provision. This agreement constitutes the entire
agreement of the parties hereto and supersedes all prior agreements
of all the parties relating to the subject matter hereof. Upon
your execution of definitive loan documents, some or all of your
confidentiality obligations with respect to the information may be
superseded by the confidentiality provisions of the loan documents.
This agreement shall be governed by, and construed in accordance
with, the laws of the State of Missouri.
If you are in agreement with the foregoing, please acknowledge
your acceptance of the terms and conditions contained herein by
executing and returning a copy of this agreement as provided below
to the attention of the undersigned by FAX (___) _____-_____ with
the original to follow by mail.
Very truly yours,
__________________________
[Name of Prospective Seller
or Assignor]
By:___________________________
Its:__________________________
Accepted and agreed to:
[Name of Prospective
Participant or Assignee]
By: ______________________
Its: ______________________
Date: ____________________
<PAGE>
EXHIBIT G
Form of Joinder Agreement
THIS JOINDER AGREEMENT (the "Joinder Agreement"), dated as of
_____________, 19__, is by and between _______________________,
a____________________ (the "Applicant Guarantor"), and THE
BOATMEN'S NATIONAL BANK OF ST. LOUIS, in its capacity as Agent
under that certain Credit Agreement dated as of January 9, 1997
(as amended and modified, the "Agreement") by and among BROWN
GROUP, INC., the Guarantors and Lenders identified therein, The
Boatmen's National Bank of St. Louis, as Agent and First Chicago
Capital Markets, Inc., as Syndication Agent. All of the defined
terms in the Credit Agreement are incorporated herein by
reference.
The Applicant Guarantor has indicated its desire to become a
Guarantor or is required by the terms of Section 6.23 of the
Agreement to become a Guarantor under the Agreement.
Accordingly, the Applicant Guarantor hereby agrees as follows
with the Agent, for the benefit of the Lenders:
1. The Applicant Guarantor hereby acknowledges, agrees and
confirms that, by its execution of this Joinder Agreement, the
Applicant Guarantor will be deemed to be a party to the Agreement
and a "Guarantor" for all purposes of the Agreement and the other
Loan Documents, and shall have all of the obligations of a
Guarantor thereunder as if it had executed the Agreement and the
other Loan Documents. The Applicant Guarantor agrees to be bound
by, all of the terms, provisions and conditions contained in the
Loan Documents, including without limitation (i) all of the
affirmative and negative covenants set forth in Section 6 of the
Agreement and (ii) all of the undertakings and waivers set forth
in Section 15 of the Agreement. Without limiting the generality
of the foregoing terms of this paragraph 1, the Applicant
Guarantor hereby (A) jointly and severally together with the other
Guarantors, guarantees to each Lender, the Agent and the Issuing
Lender as provided in Section 15 of the Agreement, the prompt
payment and performance of the Guaranteed Obligations in full when
due (whether at stated maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise)
strictly in accordance with the terms thereof. and (B) agrees that
if any of the Guaranteed Obligations are not paid or performed in
full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization
or otherwise), the Applicant Guarantor will, jointly and severally
together with the other Guarantors, promptly pay and perform the
same, without any demand or notice whatsoever, and that in the case
of any extension of time of payment or renewal of any of the
Guaranteed Obligations, the same will be promptly paid in full when
due (whether at extended maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise)
in accordance with the terms of such extension or renewal.
2. The Applicant Guarantor acknowledges and confirms that it
has received a copy of the Agreement and the Schedules and Exhibits
thereto. The information on the Schedules to the Agreement are
amended to provide the information shown on the attached Schedule
A.
3. The Applicant Guarantor hereby waives acceptance by the
Agent and the Lenders of the guaranty by the Applicant Guarantor
under Section 15 of the Agreement upon the execution of this
Joinder Agreement by the Applicant Guarantor.
4. This Joinder Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of
which when taken together shall constitute one contract.
5. This Joinder Agreement shall be governed by and construed
and interpreted in accordance with the laws of the State of
Missouri.
IN WITNESS WHEREOF, the Applicant Guarantor has caused this
Joinder Agreement to be duly executed by its Responsible Officers,
and the Agent, for the benefit of the Lenders, has caused the same
to be accepted by its Responsible Officer, as of the day and year
first above written.
APPLICANT GUARANTOR
By:
Name:
Title:
Address for Notices:
Attn: _______________________
Telephone:
Telecopy:
Acknowledged and accepted:
THE BOATMEN'S NATIONAL BANK OF
ST. LOUIS, as Agent
By:
Name:
Title:
<PAGE>
Schedule A
to
Joinder Agreement
Schedule A to Security Agreement
- --------------------------------
Address for Chief Executive Locations of Record
Applicant Guarantor Notices Office Collateral Owner
- ------------------- ----------- --------------- ------------ ------
<PAGE>
EXHIBIT 4(b)
This FIRST SUPPLEMENTAL INDENTURE, dated as of January 9,
1997, between BROWN GROUP, INC., a corporation incorporated under
the laws of the State of New York, (the "Company"), BROWN GROUP
INTERNATIONAL, INC. a Delaware corporation, BROWN GROUP RETAIL,
INC. a Pennsylvania corporation, PAGODA TRADING COMPANY, INC. a
Missouri corporation and SIDNEY RICH ASSOCIATES, INC. a Missouri
corporation, (each a "Guarantor" and collectively, the
"Guarantors") and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts Trust Company, as trustee.
WHEREAS, the Company has heretofore executed and
delivered to the Trustee an Indenture dated as of October 1, 1996
(as amended, modified or supplemented from time to time, the
"Indenture"); and
WHEREAS, pursuant to Section 4.17 of the Indenture, the
Company covenanted to not permit any Subsidiary, directly or
indirectly to assume, guarantee or in any other manner become
liable with respect to any other Indebtedness of the Company unless
such Subsidiary simultaneously executes and delivers a supplemental
indenture to the Trustee providing for the guarantee of payment of
the Securities by such Subsidiary on the same terms as such
Subsidiary's assumption or guarantee of such other Indebtedness;
and
WHEREAS, the Company is entering into that certain Credit
Agreement dated of even date herewith (the "Credit Agreement")
among the Company, as borrower, the lenders listed on the signature
pages thereof, and certain of the Company's Subsidiaries, as
guarantors of the Company's indebtedness under the Credit
Agreement;
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Company, the Guarantors and the Trustee hereby agree as follows:
Section 1. Definitions. Except as otherwise
expressly provided herein, all capitalized words and terms used
herein shall have the meanings ascribed thereto in the Indenture.
Section 2. Guaranty.
Section 2.1. Guaranty of Guaranteed Obligations. Each
of the Guarantors hereby jointly and severally guarantees to the
Trustee the prompt payment of the principal of and interest on the
Securities (the "Guaranteed Obligations"), in full when due
(whether at stated maturity, by acceleration or otherwise) strictly
in accordance with the terms thereof. The Guarantors hereby
further agree that if any of the Guaranteed Obligations are not
paid in full when due (whether at stated maturity, by acceleration
or otherwise), the Guarantors will, jointly and severally, promptly
pay the same without any demand or notice whatsoever, and that in
the case of any extension of time of payment or renewal of any of
the Guaranteed Obligations, the same will be promptly paid in full
when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or
renewal.
Notwithstanding any provision to the contrary contained
herein or in the Securities or the Indenture, to the extent the
obligations of a Guarantor shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation,
because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of each
Guarantor hereunder shall be limited to the maximum amount that is
permissible under applicable law (whether federal or state and
including, without limitation, the Bankruptcy Code).
Section 2.2. Obligations Unconditional. The
obligations of the Guarantors under Section 2.1 hereof are joint
and several, absolute and unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of the
Indenture or the Securities or any other agreement or instrument
referred to therein, or any substitution, release or exchange of
any other guarantee of or security for any of the Guaranteed
Obligations, and, to the fullest extent permitted by applicable
law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of
a surety or guarantor, it being the intent of this Section 2.2 that
the obligations of the Guarantors hereunder shall be absolute and
unconditional under any and all circumstances. Each Guarantor
agrees that such Guarantor shall have no right of subrogation,
indemnity, reimbursement or contribution against the Company or any
other Guarantor of the Guaranteed Obligations for amounts paid
under this Guaranty until such time as the Holders have been paid
in full and no person or governmental authority shall have any
right to request any return or reimbursement of funds from the
Holders in connection with monies received under the Securities or
the Indenture. Without limiting the generality of the foregoing, it
is agreed that, to the fullest extent permitted by law, the
occurrence of any one or more of the following shall not alter or
impair the liability of any Guarantor hereunder which shall remain
absolute and unconditional as described above:
(i) at any time or from time to time, without notice to
any Guarantor, the time for any performance of or compliance with
any of the Guaranteed Obligations shall be extended, or such
performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions
of the Indenture or the Securities shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations
shall be accelerated or any of the Guaranteed Obligations shall be
modified, supplemented or amended in any respect, or any right
under the Indenture or the Securities shall be waived or any other
guarantee of any of the Guaranteed Obligations or any security
therefor shall be released or exchanged in whole or in part or
otherwise dealt with;
(iv) any lien granted to, or in favor of, the Trustee as
security for any of the Guaranteed Obligations shall fail to attach
or be perfected; or
(v) any of the Guaranteed Obligations shall be
determined to be void or voidable (including, without limitation,
for the benefit of any creditor of any Guarantor) or shall be
subordinated to the claims of any person (including, without
limitation. any creditor of any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby
expressly waives diligence, presentment, demand of payment, protest
and all notices whatsoever, and any requirement that the Trustee
exhaust any right, power or remedy or proceed against the Company
or against any other person under any other guarantee of, or
security for, any of the Guaranteed Obligations.
Section 2.3. Reinstatement. The obligations of the
Guarantors under this Section 2 shall be automatically reinstated
if and to the extent that for any reason any payment by or on
behalf of any person in respect of the Guaranteed Obligations is
rescinded or must be otherwise restored by any holder of any of the
Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and each Guarantor
agrees that it will indemnify the Trustee and the Holders on demand
for all reasonable costs and expenses (including, without
limitation, fees and expenses of counsel) incurred by the Trustee
or the Holders in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
Section 2.4. Remedies. The Guarantors agree that, to
the fullest extent permitted by law, as between the Guarantors, on
the one hand, and the Trustee and the Holders on the other hand,
the Guaranteed Obligations may be declared to be forthwith due and
payable as provided in Section 6.02 of the Indenture (and shall be
deemed to have become automatically due and payable in the
circumstances provided in said Section 6.02) for purposes of
Section 2.1 hereof notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the
Guaranteed Obligations from becoming automatically due and payable)
as against any other person and that, in the event of such
declaration (or the Guaranteed Obligations being deemed to have
become automatically due and payable), the Guaranteed Obligations
(whether or not due and payable by any other person) shall
forthwith become due and payable by the Guarantors for purposes of
said Section 2.1.
Section 2.5. Rights of Contribution. The Guarantors
hereby agree, as among themselves, that if any Guarantor shall
become an Excess Funding Guarantor (as defined below), each other
Guarantor shall, on demand of such Excess Funding Guarantor (but
subject to the succeeding provisions of this Section 2.5), pay to
such Excess Funding Guarantor an amount equal to such Guarantor's
Pro Rata Share (as defined below and determined, for this purpose,
without reference to the properties, assets, liabilities and debts
of such Excess Funding Guarantor) of such Excess Payment (as
defined below). The payment obligation of any Guarantor to any
Excess Funding Guarantor under this Section 2.5 shall be
subordinate and subject in right of payment to the prior payment in
full of the obligations of such Guarantor under the other
provisions of this Section 2, and such Excess Funding Guarantor
shall not exercise any right or remedy with respect to such excess
until payment and satisfaction in full of all of such obligations.
For purposes hereof, (i) "Excess Funding Guarantor" shall mean, in
respect of any obligations arising under the other provisions of
this Section 2 (hereafter, the Guarantied Obligations"), a
Guarantor that has paid an amount in excess of its Pro Rata Share
of the Guarantied Obligations; (ii) "Excess Payment" shall mean, in
respect of any Guarantied Obligations, the amount paid by an Excess
Funding Guarantor in excess of its Pro Rata Share of such
Guarantied Obligations; and (iii) "Pro Rata Share", for the
purposes of this Section 2.5, shall mean, for any Guarantor, the
ratio (expressed as a percentage) of (a) the amount by which the
aggregate present fair saleable value of all of its assets and
properties exceeds the amount of all debts and liabilities of such
Guarantor (including contingent, subordinated, unmatured, and
unliquidated liabilities, but excluding the obligations of such
Guarantor hereunder) to (b) the amount by which the aggregate
present fair saleable value of all assets and other properties of
the Company and all of the Guarantors exceeds the amount of all of
the debts and liabilities (including contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the
obligations of the Company and the Guarantors hereunder) of the
Company and all of the Guarantors, all as of the date of this First
Supplemental Indenture (the "Closing Date") (if any person becomes
a Guarantor hereunder subsequent to the Closing Date, then for the
purposes of this Section 2.5 such subsequent Guarantor shall be
deemed to have been a Guarantor as of the Closing Date and the
information pertaining to, and only pertaining to, such Guarantor
as of the date such Guarantor became a Guarantor shall be deemed
true as of the Closing Date).
Section 2.6. Continuing Guarantee. The guarantee in
this Section 2 is a continuing guarantee, and shall apply to all
Guaranteed Obligations whenever arising.
Section 3. Construction with Indenture. All of the
covenants, agreements and provisions of this First Supplemental
Indenture shall be deemed to be and construed as part of the
Indenture to the same extent as if fully set forth therein and
shall be fully enforceable in the manner provided in the Indenture.
Except as provided in this First Supplemental Indenture, the
Indenture shall remain in full force and effect and the terms and
conditions thereof are hereby confirmed.
Section 4. Conflict with Trust Indenture Act. If any
provision of this First Supplemental Indenture modifies or excludes
any provision of the Trust Indenture Act that is required under
such Act to be part of and govern the Indenture or this First
Supplemental Indenture, the latter provision shall control. If any
provision hereof modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this First Supplemental
Indenture as so modified or excluded, as the case may be.
Section 5. Notices. Any notice or communication
shall be sufficiently given if given in accordance with the terms
of the Indenture and:
If to Brown Group International, Inc. to:
8300 Maryland Avenue
St. Louis, Missouri 63105
Attention: Secretary
If to Brown Group Retail, Inc. to:
8300 Maryland Avenue
St. Louis, Missouri 63105
Attention: Secretary
If to Pagoda Trading Company, Inc. to:
8300 Maryland Avenue
St. Louis, Missouri 63105
Attention: Secretary
If to Sidney Rich Associates, Inc. to:
8300 Maryland Avenue
St. Louis, Missouri 63105
Attention: Secretary
In each case, with a copy to:
Bryan Cave llp
One Metropolitan Square, Suite 3600
St. Louis, Missouri 63102
Attention: James L. Nouss, Jr., Esq.
Section 6. Separability. In case any provision in
this First Supplemental Indenture, shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby, it being intended that all of the provisions hereof shall
be enforceable to the full extent permitted by law.
Section 7. Counterparts. This First Supplemental
Indenture may be executed in multiple counterparts and on separate
counterparts, and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
Section 8. Governing Law. The laws of the State of
New York shall govern this First Supplemental Indenture without
regard to principles of conflicts of law.
[Next Page is Signature Page]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and attested, all
as of the day and year first above written.
BROWN GROUP, INC.
By:
Harry E. Rich
Executive Vice President and
Chief Financial Officer
BROWN GROUP INTERNATIONAL, INC.
By:
Harry E. Rich
Vice President
BROWN GROUP RETAIL, INC.
By:
Harry E. Rich
Vice President
PAGODA TRADING ASSOCIATES, INC.
By:
Harry E. Rich
Vice President
<PAGE>
SIDNEY RICH ASSOCIATES, INC.
By:
Harry E. Rich
Vice President
STATE STREET BANK AND TRUST COMPANY
By:
Name: Susan James
Title:
<PAGE>
Exhibit 99.1
FOR IMMEDIATE RELEASE
PROVIDES COMMITTED FINANCING
ST. LOUIS, MISSOURI, January 13, 1997 . . . Brown Group, Inc. (NYSE:
BG) today announced the completion of a strategic repositioning of its
debt structure that provides committed financing for long-term growth
and investment in operations. This announcement was made by Harry E.
Rich, Executive Vice President and Chief Financial Officer.
The repositioning included the October 1996 sale of $100 million in 9
1/2% senior notes and the signing on January 9, 1997 of a new $155
million revolving credit bank facility that replaces the company's
previous revolving credit agreement. The senior notes are due
October 15, 2006. The sale of the senior notes was underwritten by
Smith Barney, Inc., First Chicago Capital Markets, Inc. and Dillon,
Read & Co. Inc. The revolving credit bank facility is provided by a
syndicate of eight banks including NationsBanc Capital Markets, Inc.
and First Chicago Capital Markets, Inc. as Co-Agents. The facility
includes a LIBOR-based borrowing option and committed letter-of-credit
backing and expires in three years.
In making this announcement, Mr. Rich said:
"We are pleased to announce this completion of the
repositioning of Brown Group's short and long-term debt
structure. The new arrangements provide more balanced
exposure to interest rates, enhanced financial flexibility,
and committed intermediate-term capital to support
investment in our operations for long-term growth."
Brown Group, Inc. is a $1.5 billion footwear company with worldwide
operations. The company operates the Famous Footwear, Naturalizer and
F. X. LaSalle chains of footwear retail stores and markets leading
brands including Naturalizer, Life Stride, NaturalSport, the Larry
Stuart Collection, le coq sportif athletic footwear, Buster Brown,
and licensed brands including Dr. Scholl's and Disney character
footwear.
