Exhibit 4.1
$450,000,000
DEBTOR-IN-POSSESSION CREDIT AGREEMENT
Dated as of June 2, 2000
Among
SPECIALITY RETAILERS, INC.,
a Debtor and Debtor in Possession,
as Borrower,
STAGE STORES, INC.
as Parent Guarantor,
THE INITIAL LENDERS, INITIAL ISSUING BANK AND
SWING LINE BANK NAMED HEREIN
as Initial Lenders, Initial Issuing Bank and Swing Line Bank,
CITICORP USA, INC.
as Collateral Agent,
CITICORP USA, INC.
as Administrative Agent,
Table of Contents
Page
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Certain Defined Terms 2
SECTION 1.02Computation of Time Periods; Other Definitional Provisions 28
SECTION 1.03 Accounting Terms 28
SECTION 1.04 Currency Equivalents Generally 28
ARTICLE 2
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
SECTION 2.01 The Advances and the Letters of Credit 28
SECTION 2.02 Making the Advances 30
SECTION 2.03Issuance of and Drawings and Reimbursement Under Letters
of Credit 32
SECTION 2.04 Repayment of Advances 33
SECTION 2.05 Termination or Reduction of the Commitments 34
SECTION 2.06 Prepayments 35
SECTION 2.07 Interest 36
SECTION 2.08 Fees 37
SECTION 2.09 Conversion of Advances 38
SECTION 2.10 Increased Costs, Etc 38
SECTION 2.11 Payments and Computations 39
SECTION 2.12 Taxes 42
SECTION 2.13 Sharing of Payments, Etc 43
SECTION 2.14 Use of Proceeds 44
SECTION 2.15 Defaulting Lenders 44
SECTION 2.16 Evidence of Debt 46
ARTICLE 3
CONDITIONS OF LENDING
AND ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01 Conditions Precedent to Initial Extension of Credit 47
SECTION 3.02Conditions Precedent to Each Borrowing, Issuance and
Increase of Available Amount 52
SECTION 3.03Conditions Precedent to Each Working Capital Borrowing,
Issuance and Increase of Available Amount 53
SECTION 3.04 Determinations Under Section 3.01 53
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01Representations and Warranties of the Borrower and the
Parent Guarantor 53
ARTICLE 5
COVENANTS OF THE BORROWERS
AND THE PARENT GUARANTOR
SECTION 5.01 Affirmative Covenants 58
SECTION 5.02 Negative Covenants 63
SECTION 5.03 Reporting Requirements 69
SECTION 5.04 Financial Covenants 73
ARTICLE 6
EVENTS OF DEFAULT
SECTION 6.01 Events of Default 73
SECTION 6.02Actions in Respect of the Letters of Credit upon Default 77
ARTICLE 7
PARENT GUARANTY
SECTION 7.01 Guaranty 78
SECTION 7.02 Guaranty Absolute 78
SECTION 7.03 Waiver 79
SECTION 7.04 Payments Free and Clear of Taxes, Etc 80
SECTION 7.05 Continuing Guaranty; Assignments 81
SECTION 7.06 Subrogation 81
SECTION 7.07 Subordination 81
ARTICLE 8
THE AGENTS
SECTION 8.01 Authorization and Action 82
SECTION 8.02 Agents' Reliance, Etc 82
SECTION 8.03 Citibank and Affiliates 83
SECTION 8.04 Lender Party Credit Decision 83
SECTION 8.05 Indemnification 83
SECTION 8.06 Successor Agents 84
SECTION 8.07 Other Agents 85
ARTICLE 9
MISCELLANEOUS
SECTION 9.01 Amendments, Etc 85
SECTION 9.02 Notices, Etc 86
SECTION 9.03 No Waiver; Remedies 86
SECTION 9.04 Costs and Expenses 86
SECTION 9.05 Right of Set-off 88
SECTION 9.06 Binding Effect 88
SECTION 9.07 Assignments and Participations 88
SECTION 9.08 Execution in Counterparts 91
SECTION 9.09 No Liability of the Issuing Bank 92
SECTION 9.10 Release of Collateral 92
SECTION 9.11 Jurisdiction, Etc 92
SECTION 9.12 Governing Law 92
SECTION 9.13 Waiver of Jury Trial 93
SCHEDULES
Schedule I - Commitments and Applicable Lending
Offices
Schedule II - Borrower's Account
Schedule III Eligible Real Property
Schedule IV - GOB Stores
Schedule 3.01(a)(vii) - Jurisdiction of Activity as Foreign
Corporation
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations, Approvals, Actions,
Notices and Filings
Schedule 4.01(f) - Disclosed Litigation
Schedule 4.01(q) - Open Years
Schedule 4.01(s) - Existing Debt
Schedule 4.01(t) - Surviving Debt
Schedule 4.01(u) - Owned Real Property
Schedule 4.01(v) - Leased Real Property
Schedule 4.01(w) - Investments
Schedule 4.01(x) - Intellectual Property
Schedule 5.02(a) - Liens
EXHIBITS
Exhibit A-1 - Form of Working Capital Note
Exhibit A-2 - Form of Term Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Security Agreement
Exhibit E - Form of Subsidiary Guaranty
Exhibit F - Intentionally Omitted
Exhibit G-1 - Form of Interim Order
Exhibit G-2 - Form of Final Order
Exhibit H-1 - Form of Opinion of Counsel to the Loan
Parties
Exhibit H-2 - Form of Opinion of Local Counsels to the Loan
Parties
Exhibit H-3 - Form of Opinion of Special Bankruptcy Counsel
to the Loan Parties
Exhibit I - Form of Borrowing Base Certificate
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of June 2, 2000 among
SPECIALTY RETAILERS, INC., a Texas corporation (the "Borrower"),
STAGE STORES, INC., a Delaware corporation (the "Parent
Guarantor"), each a debtor and debtor-in-possession under Chapter
11 of the Bankruptcy Code (11 U.S.C. 101 et seq.; the
"Bankruptcy Code"), the banks, financial institutions and other
institutional lenders listed on the signature pages hereof as the
Initial Lenders (the "Initial Lenders"), the bank listed on the
signature pages hereof as the Initial Issuing Bank (the "Initial
Issuing Bank" and, together with the Initial Lenders, the
"Initial Lender Parties") and the Swing Line Bank (as hereinafter
defined), CITICORP USA, INC. ("Citicorp"), as Collateral Agent
(together with any successor Collateral Agent appointed pursuant
to Article VIII, the "Collateral Agent"), and CITICORP, as
administrative agent (together with any successor administrative
agent appointed pursuant to Article VIII, the "Administrative
Agent" and, together with the Collateral Agent, the "Agents") for
the Lender Parties (as hereinafter defined).
PRELIMINARY STATEMENTS:
(1) On June 1, 2000 (the "Filing Date"), the Borrower
and the Parent Guarantor filed petitions under Chapter 11 of the
Bankruptcy Code in the United States Bankruptcy Court for the
Southern District of Texas (the "Bankruptcy Court").
(2) The Borrower and the Parent Guarantor have
continued to operate their respective businesses pursuant to
Sections 1107 and 1108 of the Bankruptcy Code.
(3) The Borrower and the Parent Guarantor have an
immediate need for funds to continue to operate their businesses.
(4) The Borrower has requested that the Initial
Lenders lend to the Borrower up to $450,000,000 pursuant to
Sections 105(a), 362, 364(c)(1), (2), (3) and 364(d) of the
Bankruptcy Code in order to (i) refinance the Receivables
Purchase Program (as hereinafter defined) and the Pre-Petition
2000 Credit Agreement (as hereinafter defined), (ii) provide
working capital for the Borrower and (iii) for other general
corporate purposes.
(5) The Parent Guarantor and the Subsidiary Guarantors
(as hereinafter defined) have agreed to guarantee the due and
punctual payment and performance by the Borrower of the
Obligations (as hereinafter defined) to the Administrative Agent,
the Collateral Agent and the Lenders pursuant to the Subsidiary
Guaranty (as hereinafter defined).
(6) The Parent Guarantor, the Borrower and the
Subsidiary Guarantors have agreed to secure the Obligations with,
inter alia, first priority liens on and security interests in
(subject to Permitted Liens (as hereinafter defined)) all
property and interests, real and personal, tangible and
intangible, of the Parent Guarantor, the Borrower and the
Subsidiary Guarantors, whether now owned or hereinafter acquired,
all on the terms and conditions set forth in the Loan Documents
(as hereinafter defined), in accordance with Sections 105(a),
362, 364(c)(1), (2), (3) and 364(d) of the Bankruptcy Code.
(7) The Lenders have indicated their willingness to
lend such amounts pursuant to Sections 105(a), 362, 364(c)(1),
(2), (3) and 364(d) of the Bankruptcy Code on the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of
the mutual covenants and agreements contained herein, the parties
hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Certain Defined Terms
. As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms
defined):
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Administrative Agent's Account" means the account of
the Administrative Agent maintained by the Administrative
Agent with Citicorp Industrial Credit at its office at 399
Park Avenue, New York, New York 10043, Account No. 38858061,
ABA 021000089, Attention: Elizabeth Zecha, or such other
account as the Administrative Agent shall specify in writing
to the Lender Parties.
"Advance" means a Term Advance, a Working Capital
Advance, a Swing Line Advance or a Letter of Credit Advance.
"Affiliate" means, as to any Person, any other Person
that, directly or indirectly, controls, is controlled by or
is under common control with such Person or is a director or
officer of such Person. For purposes of this definition,
the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person
means the possession, direct or indirect, of the power to
vote 5 % or more of the Voting Interests of such Person or
to direct or cause the direction of the management and
policies of such Person, whether through the ownership of
Voting Interests, by contract or otherwise.
"Agents" has the meaning specified in the recital of
parties to this Agreement.
"Applicable Lending Office" means, with respect to each
Lender Party, such Lender Party's Domestic Lending Office in
the case of a Base Rate Advance and such Lender Party's
Eurodollar Lending Office in the case of a Eurodollar Rate
Advance.
"Applicable Letter of Credit Fee" means a percentage
per annum determined by reference to the Excess Availability
as set forth below:
Excess Applicable Letter of
Availability Credit Fee
Level I
Less than $50 3.25%
million
Level II
$50 million or
greater, but 3.00%
less than $85
million
Level III
$85 million or
greater, but 2.75%
less than $125
million
Level IV
$125 million or 2.50%
greater
The Applicable Letter of Credit Fee shall be determined by
reference to the Excess Availability in effect from time to
time; provided, however, that (A) no change in the
Applicable Letter of Credit Fee shall be effective until
three Business Days after the date on which the
Administrative Agent receives a Borrowing Base Certificate
required to be delivered pursuant to Section 5.03(p), and in
the case of an increase to a higher Level, a certificate of
the principal financial officer of the Parent Guarantor
stating that the Excess Availability has been maintained at
the same Level for each of the immediately preceding sixty
days, and (B) the Applicable Letter of Credit Fee shall be
at Level I for so long as the Parent Guarantor has not
delivered to the Administrative Agent (i) a Borrowing Base
Certificate as required under Section 5.03(p), and (ii) the
financial information required to be delivered pursuant to
Section 5.03(b) or (c) as required thereunder, as the case
may be, including such information for the Fiscal Year
ending January 31, 2000 and Fiscal Quarter ending April 30,
2000.
"Applicable Margin" means a percentage per annum
determined by reference to the Excess Availability as set
forth below:
Excess Base Rate Eurodollar Rate
Availability Advances Advances
Level I
Less than $50 2.00% 3.25%
million
Level II
$50 million or
greater, but 1.75% 3.00%
less than $85
million
Level III
$85 million or
greater, but 1.50% 2.75%
less than $125
million
Level IV
$125 million or 1.25% 2.50%
greater
The Applicable Margin for each Advance shall be determined
by reference to the Excess Availability in effect from time
to time; provided, however, that (A) no change in the
Applicable Margin shall be effective until three Business
Days after the date on which the Administrative Agent
receives a Borrowing Base Certificate required to be
delivered pursuant to Section 5.03(p), and in the case of an
increase to a higher level, a certificate of the principal
financial officer of the Parent Guarantor stating that the
Excess Availability has been maintained at same Level for
each of the immediately preceding sixty days, and (B) the
Applicable Margin shall be at Level I for so long as the
Parent Guarantor has not delivered to the Administrative
Agent (i) a Borrowing Base Certificate as required under
Section 5.03(p), and (ii) the financial information required
to be delivered pursuant to Section 5.03(b) or (c) as
required thereunder, as the case may be, including such
information for the Fiscal Year ending January 31, 2000 and
Fiscal Quarter ending April 30, 2000.
"Applicable Percentage" means a percentage per annum
determined by reference to the Excess Availability as set
forth below:
Excess Applicable Percentage
Availability
Level I
Less than $50 0.500%
million
Level II
$50 million or
greater, but 0.500%
less than $85
million
Level III
$85 million or
greater, but 0.375%
less than $125
million
Level IV
$125 million or 0.375%
greater
The Applicable Percentage shall be determined by reference
to the Excess Availability in effect from time to time;
provided, however, that (A) no change in the Applicable
Percentage shall be effective until three Business Days
after the date on which the Administrative Agent receives a
Borrowing Base Certificate required to be delivered pursuant
to Section 5.03(p), and in the case of an increase to a
higher level, a certificate of the principal financial
officer of the Parent Guarantor stating that the Excess
Availability has been maintained at same Level for each of
the immediately preceding sixty days, and (B) the Applicable
Percentage shall be at Level I for so long as the Parent
Guarantor has not delivered to the Administrative Agent (i)
a Borrowing Base Certificate as required under Section
5.03(p), and (ii) the financial information required to be
delivered pursuant to Section 5.03(b) or (c) as required
thereunder, as the case may be, including such information
for the Fiscal Year ending January 31, 2000 and Fiscal
Quarter ending April 30, 2000.
"Appropriate Lender" means, at any time, with respect
to (a) the Term or Working Capital Facilities, a Lender that
has a Commitment with respect to such Facility at such time,
(b) the Letter of Credit Facility, (i) the Issuing Bank and
(ii) if the other Working Capital Lenders have made Letter
of Credit Advances pursuant to Section 2.03(c) that are
outstanding at such time, each such other Working Capital
Lender and (c) the Swing Line Facility, (i) the Swing Line
Bank and (ii) if the other Working Capital Lenders have made
Swing Line Advances pursuant to Section 2.02(b) that are
outstanding at such time, each such other Working Capital
Lender.
"Approved Fund" means, with respect to any Lender that
is a fund that invests in bank loans, any other fund that
invests in bank loans and is advised or managed by the same
investment advisor as such Lender or by an Affiliate of such
investment advisor.
"Arranger and Book Manager" means Salomon Smith Barney
Inc.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender Party and an Eligible
Assignee, and accepted by the Administrative Agent, in
accordance with Section 9.07 and in substantially the form
of Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at
any time, the maximum amount available to be drawn under
such Letter of Credit at such time (assuming compliance at
such time with all conditions to drawing).
"Bankruptcy Code" has the meaning specified in the
Preliminary Statements.
"Bankruptcy Court" has the meaning specified in the
Preliminary Statements.
"Base Rate" means a fluctuating interest rate per annum
in effect from time to time, which rate per annum shall at
all times be equal to the higher of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/16 of 1%
or, if there is no nearest 1/16 of 1% to the next
higher 1/16 of 1%) of (i) one half of 1% per annum, plus (ii)
the rate obtained by dividing (A) the latest three-week
moving average of secondary market morning offering
rates in the United States for three-month certificates
of deposit of major United States money market banks,
such three-week moving average (adjusted to the basis
of a year of 360 days) being determined weekly on each
Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period
ending on the previous Friday by Citibank on the basis
of such rates reported by certificate of deposit
dealers to and published by the Federal Reserve Bank of
New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates
received by Citibank from three New York certificate of
deposit dealers of recognized standing selected by
Citibank, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such
three-week period by the Board of Governors of the
Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including,
but not limited to, any emergency, supplemental or
other marginal reserve requirement) for Citibank with
respect to liabilities consisting of or including
(among other liabilities) three-month U.S. dollar non-
personal time deposits in the United States, plus (iii)
the average during such three-week period of the annual
assessment payable by Citibank for determining the then
current annual assessment payable by Citibank to the
Federal Deposit Insurance Corporation (or any
successor) for insuring U.S. dollar deposits of
Citibank in the United States; and
(c) one half of 1% per annum above the Federal Funds
Rate.
"Base Rate Advance" means an Advance that bears
interest as provided in Section 2.07(a)(i).
"Borrower" has the meaning specified in the recital of
parties to this Agreement.
"Borrower's Account" means the account of the Borrower
maintained by the Borrower with Citibank at its office at
399 Park Avenue, New York, New York 10043, with the account
number so designated on Schedule II, or such other account
as the Borrower shall specify in writing to the
Administrative Agent.
"Borrower's Professionals" means all Persons retained
or engaged by any Loan Party as professional persons within
the meaning of Section 327 of the Bankruptcy Code.
"Borrowing" means a Term Borrowing, a Working Capital
Borrowing or a Swing Line Borrowing.
"Borrowing Base Certificate" means a certificate in
substantially the form of Exhibit I hereto, duly certified
by the principal financial officer of the Parent Guarantor.
"Business Day" means a day of the year on which banks
are not required or authorized by law to close in New York
City and, if the applicable Business Day relates to any
Eurodollar Rate Advances, on which dealings are carried on
in the London interbank market.
"Capital Expenditures" means, for any Person for any
period, the sum of, without duplication, (a) all
expenditures made, directly or indirectly, by such Person or
any of its Subsidiaries during such period for equipment,
fixed assets, real property or improvements, or for
replacements or substitutions therefor or additions thereto,
that have been or should be, in accordance with GAAP,
reflected as additions to property, plant or equipment on a
Consolidated balance sheet of such Person or have a useful
life of more than one year plus (b) the aggregate principal
amount of all Debt (including Obligations under Capitalized
Leases) assumed or incurred in connection with any such
expenditures. For purposes of this definition, the purchase
price of equipment that is purchased simultaneously with the
trade-in of existing equipment or with insurance proceeds
shall be included in Capital Expenditures only to the extent
of the gross amount of such purchase price less the credit
granted by the seller of such equipment for the equipment
being traded in at such time or the amount of such proceeds,
as the case may be.
"Capitalized Leases" means all leases that have been or
should be, in accordance with GAAP, recorded as capitalized
leases.
"Carryover Amount" has the meaning specified in Section
5.02(p).
"Carve-Out" means an amount not exceeding in the
aggregate $3,000,000 which amount may be used by the
Borrower after the occurrence and during the continuance of
a Default or an Event of Default, notwithstanding the
Collateral Agent's security interests for the benefit of the
Secured Parties in the Collateral and the Agents' rights
hereunder, to pay fees or expenses incurred by the Borrower
constituting (i) allowances of compensation for services
rendered or reimbursement or expenses awarded by the
Bankruptcy Court under Sections 330 and 331 of the
Bankruptcy Code or otherwise, to Borrower's Professionals,
(ii) allowances of compensation for services rendered or
reimbursement of expenses awarded by the Bankruptcy Court
under Section 105(a), 330 or 331 of the Bankruptcy Code, to
accountants, attorneys and other professionals retained in
the Cases by any unsecured creditors' committee appointed in
accordance with Section 1102 of the Bankruptcy Code or any
examiner appointed in accordance with Section 1104 of the
Bankruptcy Code other than an examiner of the type referred
to in Section 6.01(t) hereof, (iii) fees required to be paid
to the Office of the United States Trustee under Section
1930(a), Title 28, United States Code, and (iv) the actual,
necessary expenses, other than compensation, and
reimbursement pursuant to Section 503(b)(4) of the
Bankruptcy Code, incurred by a member of a committee
appointed under Section 1102 of the Bankruptcy Code, if such
expenses are incurred in the performance of the duties of
such committee and are allowed by the Bankruptcy Court;
provided, however, that such dollar limitation on fees and
disbursements shall not apply to any retainer fees paid to
the Borrower's Professionals prior to the Filing Date (the
"Retainers") and shall not be reduced by the amount of any
compensation and reimbursement of expenses allowed and paid
prior to the occurrence of the Default or Event of Default
in respect of which the Carve-Out is invoked or any fees,
expenses, indemnities or other amounts paid to the Agents,
the Lenders and their attorneys and agents under this
Agreement or otherwise.
"Cases" means the cases of the Parent Guarantor and the
Borrower pursuant to Chapter 11 of the Bankruptcy Code
pending in the Bankruptcy Court.
"Cash Concentration Account" has the meaning specified
in the Security Agreement.
"Cash Equivalents" means any of the following, to the
extent owned by the Parent Guarantor or any of its
Subsidiaries free and clear of all Liens other than Liens
created under the Collateral Documents and having a maturity
of not greater than 90 days from the date of acquisition
thereof: (a) readily marketable direct obligations of the
Government of the United States or any agency or
instrumentality thereof or obligations unconditionally
guaranteed by the full faith and credit of the Government of
the United States, (b) insured certificates of deposit of or
time deposits with any commercial bank that is a Lender
Party or a member of the Federal Reserve System that, issues
(or the parent of which issues) commercial paper rated as
described in clause (c) below, is organized under the laws
of the United States or any State thereof and has combined
capital and surplus of at least $1 billion, (c) commercial
paper in an aggregate amount of no more than $5,000,000 per
issuer outstanding at any time, issued by any corporation
organized under the laws of any State of the United States
and rated at least "Prime-1" (or the then equivalent grade)
by Moody's Investors Service, Inc. or "A-1" (or the then
equivalent grade) by Standard & Poor's, a division of The
McGraw-Hill Companies, Inc. or (d) Investments, classified
in accordance with GAAP as Current Assets of the Parent
Guarantor or any of its Subsidiaries, in money market
investment programs registered under the Investment Company
Act of 1940, as amended, which are administered by financial
institutions that have the highest rating obtainable from
either Moody's or S&P, and the portfolios of which are
limited solely to Investments of the character, quality and
maturity described in clauses (a), (b) and (c) of this
definition.
"CERCLA" means the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended
from time to time.
"CERCLIS" means the Comprehensive Environmental
Response, Compensation and Liability Information System
maintained by the U.S. Environmental Protection Agency.
"Certificate Purchase Agreements" means the (i) Class A-
1 Certificate Purchase Agreement dated as of November 9,
1999 among SRI Receivables Purchase Co., Inc., the Borrower,
Credit Suisse First Boston and the Class A-1 Purchasers
named therein, (ii) Class A-2 Certificate Purchase Agreement
dated as of November 9, 1999 among SRI Receivables Purchase
Co., Inc., the Borrower, Credit Suisse First Boston and the
Class A-2 Purchasers named therein, (iii) Class B
Certificate Purchase Agreement dated as of November 9, 1999
among SRI Receivables Purchase Co., Inc., the Borrower,
Credit Suisse First Boston and the Class B Purchasers named
therein, and (iv) Class C and Class D Certificate Purchase
Agreement dated as of November 9, 1999 among SRI Receivables
Purchase Co., Inc., the Borrower and Credit Suisse First
Boston.
"Change of Control" means the occurrence of any of the
following: (a) any Person or two or more Persons acting in
concert shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934),
directly or indirectly, of Voting Interests of the Parent
Guarantor (or other securities convertible into such Voting
Interests) representing 35% or more of the combined voting
power of all Voting Interests of the Parent Guarantor; or
(b) during any period of up to 24 consecutive months,
commencing after the date of this Agreement, Continuing
Directors shall cease to constitute a majority of the board
of directors of the Parent Guarantor or (c) any Person or
two or more Persons acting in concert other shall have
acquired by contract or otherwise, or shall have entered
into a contract or arrangement that, upon consummation, will
result in its or their acquisition of the power to exercise,
directly or indirectly, a controlling influence over the
management or policies of the Parent Guarantor; or (d) the
Parent shall cease to own 100% of the Equity Interests in
the Borrower.
"Citibank" means Citibank, N.A.
"Collateral" means all "Collateral" referred to in the
Collateral Documents and all other property that is or is
intended to be subject to any Lien in favor of the
Collateral Agent for the benefit of the Secured Parties.
"Collateral Account" has the meaning specified in the
Security Agreement.
"Collateral Agent" has the meaning specified in the
recital of parties to this Agreement.
"Collateral Documents" means the Security Agreement,
the Intellectual Property Security Agreement, the Mortgages,
each of the collateral documents, instruments, and
agreements delivered pursuant to Section 5.01(j), and each
other agreement that creates or purports to create a Lien in
favor of the Collateral Agent for the benefit of the Secured
Parties.
"Commitment" means a Term Commitment, a Working Capital
Commitment or a Letter of Credit Commitment.
"Consolidated" refers to the consolidation of accounts
in accordance with GAAP.
"Contingent Obligation" means, with respect to any
Person, any Obligation or arrangement of such Person to
guarantee or intended to guarantee any Debt, leases,
dividends or other payment Obligations ("primary
obligations") of any other Person (the "primary obligor") in
any manner, whether directly or indirectly, including,
without limitation, (a) the direct or indirect guarantee,
endorsement (other than for collection or deposit in the
ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of the
Obligation of a primary obligor, (b) the Obligation to make
take-or-pay or similar payments, if required, regardless of
nonperformance by any other party or parties to an agreement
or (c) any Obligation of such Person, whether or not
contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (A) for the
purchase or payment of any such primary obligation or (B) to
maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency
of the primary obligor, (iii) to purchase property, assets,
securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the
holder of such primary obligation against loss in respect
thereof. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such
Contingent Obligation is made (or, if less, the maximum
amount of such primary obligation for which such Person may
be liable pursuant to the terms of the instrument evidencing
such Contingent Obligation) or, if not stated or
determinable, the maximum reasonably anticipated liability
in respect thereof (assuming such Person is required to
perform thereunder), as determined by such Person in good
faith.
"Continuing Directors" means at any date a member of
the Parent Guarantor's board of directors who was either a
member of such board on the Effective Date or was nominated
to such board by at least two-thirds of the Continuing
Directors then in office.
"Conversion", "Convert" and "Converted" each refer to a
conversion of Advances of one Type into Advances of the
other Type pursuant to Section 2.09 or 2.10.
"Credit Card Issuer" means (i) Granite National Bank,
N.A. and (ii) any bank or other Person which issues credit
cards and extends credit to cardholders in connection with
the Credit Card Program.
"Credit Card Program" means a private credit card
program or other credit card program created and operated or
maintained by the Credit Card Subsidiaries pursuant to (a)
the Receivables Transfer Agreement, or (b) any other similar
agreement or arrangement with terms and conditions
reasonably satisfactory to the Administrative Agent.
"Credit Card Subsidiaries" means (a) Granite National
Bank, N.A. and (b) any direct or indirect Subsidiary of the
Parent Guarantor, and any wholly-owned Subsidiaries of such
Subsidiary, existing from time to time that are created in
connection with a Credit Card Program, as long as (i) such
Subsidiaries engage in no business or transactions other
than (x) the issuance (or providing for the issuance) of
credit cards, extension of credit to cardholders pursuant
thereto, and other transactions arising from or related
thereto (including the sale or transfer of Accounts or
credit card receivables pursuant to the Receivables Purchase
Program) and (y) the entering into and performance of
agreements with a Credit Card Issuer that facilitate the
Credit Card Issuer's doing business in connection with the
Credit Card Program and (ii) the liabilities of the Credit
Card Subsidiaries are without recourse to the Borrower
(other than Credit Card Subsidiaries); provided that the
Parent Guarantor may enter into customary commitment and
underwriting agreements on behalf of the Credit Card
Subsidiaries for the purpose of customary securities law or
regulatory indemnifications.
"Current Assets" of any Person means all assets of such
Person that would, in accordance with GAAP, be classified as
current assets of a company conducting a business the same
as or similar to that of such Person, after deducting
adequate reserves in each case in which a reserve is proper
in accordance with GAAP.
"Debt" of any Person means, without duplication for
purposes of calculating financial ratios, (a) all
indebtedness of such Person for borrowed money, (b) all
Obligations of such Person for the deferred purchase price
of property or services (other than trade payables on terms
of 90 days or less incurred in the ordinary course of such
Person's business), (c) all Obligations of such Person
evidenced by notes, bonds, debentures or other similar
instruments, (d) all Obligations of such Person created or
arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender
under such agreement in the event of default are limited to
repossession or sale of such property), (e) all Obligations
of such Person as lessee under Capitalized Leases, (f) all
Obligations of such Person under acceptance, letter of
credit or similar facilities, (g) all Obligations of such
Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any capital stock of or other
ownership or profit interest in such Person or any other
Person or purchase, redeem, retire, defease or otherwise
make any payment in respect any warrants, rights or options
to acquire such capital stock, valued, in the case of
Redeemable Preferred Stock, at the greater of its voluntary
or involuntary liquidation preference plus accrued and
unpaid dividends, (h) all Contingent Obligations and Off-
Balance Sheet Obligations of such Person and (j) all
indebtedness and other payment Obligations referred to in
clauses (a) through (h) above of another Person secured by
(or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on
property (including, without limitation, accounts and
contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of
such indebtedness or other payment Obligations.
"Default" means any Event of Default or any event that
would constitute an Event of Default but for the requirement
that notice be given or time elapse or both.
"Defaulted Advance" means, with respect to any Lender
Party at any time, the portion of any Advance required to be
made by such Lender Party to the Borrower pursuant to
Section 2.01 or 2.02 at or prior to such time that has not
been made by such Lender Party or by the Administrative
Agent for the account of such Lender Party pursuant to
Section 2.02(e) as of such time. In the event that a
portion of a Defaulted Advance shall be deemed made pursuant
to Section 2.15(a), the remaining portion of such Defaulted
Advance shall be considered a Defaulted Advance originally
required to be made pursuant to Section 2.01 on the same
date as the Defaulted Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Lender
Party at any time, any amount required to be paid by such
Lender Party to any Agent or any other Lender Party
hereunder or under any other Loan Document at or prior to
such time that has not been so paid as of such time,
including, without limitation, any amount required to be
paid by such Lender Party to (a) the Swing Line Bank
pursuant to Section 2.02(b) to purchase a portion of a Swing
Line Advance made by the Swing Line Bank, (b) the Issuing
Bank pursuant to Section 2.03(c) to purchase a portion of a
Letter of Credit Advance made by the Issuing Bank, (c) the
Administrative Agent pursuant to Section 2.02(e) to
reimburse the Administrative Agent for the amount of any
Advance made by the Administrative Agent for the account of
such Lender Party, (d) any other Lender Party pursuant to
Section 2.13 to purchase any participation in Advances owing
to such other Lender Party and (e) any Agent or the Issuing
Bank pursuant to Section 8.05 to reimburse such Agent or the
Issuing Bank for such Lender Party's ratable share of any
amount required to be paid by the Lender Parties to such
Agent or the Issuing Bank as provided therein. In the event
that a portion of a Defaulted Amount shall be deemed paid
pursuant to Section 2.15(b), the remaining portion of such
Defaulted Amount shall be considered a Defaulted Amount
originally required to be paid hereunder or under any other
Loan Document on the same date as the Defaulted Amount so
deemed paid in part.
"Defaulting Lender" means, at any time, any Lender
Party that, at such time, (a) owes a Defaulted Advance or a
Defaulted Amount or (b) shall take any action or be the
subject of any action or proceeding of a type described in
Section 6.01(i).
"Disclosed Litigation" has the meaning specified in
Section 3.01(g).
"Domestic Lending Office" means, with respect to any
Lender Party, the office of such Lender Party specified as
its "Domestic Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party, as the case may
be, or such other office of such Lender Party as such Lender
Party may from time to time specify to the Borrower and the
Administrative Agent.
"EBITDA" means, for any period, the sum, determined on
a Consolidated basis, of (a) net income (or net loss),
(b) interest expense, (c) income tax expense,
(d) depreciation expense, (e) amortization expense, (f)
non-recurring, transactional or unusual losses deducted in
calculating net income less non-recurring, transactional or
unusual gains added in calculating net income, (g) any
non-cash expenses, non-cash losses or other non-cash charges
resulting from the writedown in the valuation of any assets
in each case of the Parent Guarantor and its Subsidiaries,
determined in accordance with GAAP for such period, (h)
professional fees incurred in connection with the Cases.
"Effective Date" means the first date on which the
conditions set forth in Article III shall have been
satisfied.
"Eligible Assignee" means (a) with respect to any
Facility (other than the Letter of Credit Facility), (i) a
Lender; (ii) an Affiliate or an Approved Fund of a Lender;
(iii) a commercial bank organized under the laws of the
United States, or any State thereof, and having total assets
in excess of $2,000,000,000; (iv) a savings and loan
association or savings bank organized under the laws of the
United States, or any State thereof, and having total assets
in excess of $2,000,000,000; (v) a commercial bank organized
under the laws of any other country that is a member of the
OECD or has concluded special lending arrangements with the
International Monetary Fund associated with its General
Arrangements to Borrow or of the Cayman Islands, or a
political subdivision of any such country, and having total
assets in excess of $2,000,000,000, so long as such bank is
acting through a branch or agency located in the country in
which it is organized or another country that is described
in this clause (v); (vi) the central bank of any country
that is a member of the OECD; (vii) a finance company or
other financial institution or fund (whether a corporation,
partnership, trust or other entity) that is engaged in
making, purchasing or otherwise investing in commercial
loans in the ordinary course of business and having a
combined capital and surplus of at least $250,000,000 and
(viii) any other Person approved by the Administrative Agent
and, unless a Default has occurred and is continuing at the
time any assignment is effected pursuant to Section 9.07,
the Parent Guarantor, such approval not to be unreasonably
withheld or delayed, and (b) with respect to the Letter of
Credit Facility, a Person that is an Eligible Assignee under
subclause (iii) or (v) of clause (a) of this definition and
is approved by the Administrative Agent and, unless a
Default has occurred and is continuing at the time any
assignment is effected pursuant to Section 9.07, the Parent
Guarantor, such approval not to be unreasonably withheld or
delayed; provided, however, that neither any Loan Party nor
any Affiliate of a Loan Party shall qualify as an Eligible
Assignee under this definition.
"Eligible Cash" means only such cash or Cash
Equivalents of the Borrower as is on deposit in the Cash
Concentration Account
"Eligible Collateral" means, collectively, Eligible
Inventory, Eligible Receivables, Eligible Real Property and
Eligible Cash.
"Eligible Inventory" means only such Inventory of the
Loan Parties as the Administrative Agent, in its sole
discretion exercised in a commercially reasonable manner in
accordance with customary business practices, shall from
time to time elect to consider Eligible Inventory for
purposes of this Agreement. The value of such Inventory
shall be determined by the Administrative Agent in its sole
discretion exercised in a commercially reasonable manner in
accordance with customary business practices and taking into
consideration, among other factors, the lowest of its cost,
its book value determined in accordance with GAAP determined
using first-in first-out (FIFO method) and its liquidation
value. The following classes of Inventory shall not be
Eligible Inventory:
(a) Inventory that is obsolete, unusable or
otherwise unavailable for sale;
(b) Inventory with respect to which the
representations and warranties set forth in the
Collateral Documents applicable to Inventory are not
true and correct;
(c) Inventory consisting of promotional,
marketing, packaging or shipping materials and
supplies;
(d) Inventory that fails to meet all standards
imposed by any governmental agency, or department or
division thereof, having regulatory authority over such
Inventory or its use or sale;
(e) Inventory that is subject to any licensing,
patent, royalty, trademark, trade name or copyright
agreement with any third party from whom any Loan Party
has received notice of a dispute in respect of any such
agreement except to the extent such dispute is being
contested in good faith and by proper proceedings;
(f) Inventory located outside the United States
and Canada other than In Transit Inventory;
(g) Inventory that is not in the possession of or
under the sole control of the Loan Parties other than
In Transit Inventory; and
(h) Inventory in respect of which the Security
Agreement, after giving effect to the related filings
of financing statements that have then been made, if
any, does not or has ceased to create a valid and
perfected first priority lien or security interest in
favor of the Collateral Agent for the benefit of the
Secured Parties securing the Secured Obligations and as
to which no other Liens exist, other than Permitted
Liens.
"Eligible Real Property" means certain real property
identified on Schedule III hereto.
"Eligible Receivables" means only such Receivables of
the Loan Parties (other than the Non-Filing Subsidiaries) as
the Administrative Agent, in its sole discretion exercised
in a commercially reasonable manner in accordance with
customary business practices, shall from time to time elect
to consider Eligible Receivables for purposes of this
Agreement. The value of such Receivables shall be
determined by the Administrative Agent in its sole
discretion exercised in a commercially reasonable manner in
accordance with customary business practices and taking into
consideration, among other factors, their book value
determined in accordance with GAAP. Not withstanding the
foregoing, none of the following classes of Receivables
shall be Eligible Receivables:
(a) Receivables that do not arise out of sales of
goods or rendering of services in the ordinary course
of the business of the Loan Parties;
(b) Receivables on terms other than those normal
or customary in the business of the Loan Parties;
(c) Receivables owing from any Person that is an
Affiliate of any Loan Party or any of its Subsidiaries;
(d) Receivables for which a payment has not been
made for three consecutive 30-day billing cycles;
(e) Receivables owing from any Person that
(i) has disputed liability for such Receivable owing
from such Person or (ii) has otherwise asserted any
claim, demand or liability against any Loan Party or
any of its Subsidiaries, whether by action, suit,
counterclaim or otherwise;
(f) Receivables owing from any Person that shall
take or be the subject of any action or proceeding of a
type described in Section 6.01(i);
(g) Receivables (i) owing from any Person that is
also a supplier to or creditor of any Loan Party or
(ii) representing any manufacturer's or supplier's
credits, discounts, incentive plans or similar
arrangements entitling any Loan Party to discounts on
future purchase therefrom;
(h) Receivables arising out of sales to account
debtors outside the United States or Canada unless such
Receivables are fully backed by an irrevocable letter
of credit on terms, and issued by a financial
institution, acceptable to the Administrative Agent and
such irrevocable letter of credit is in the possession
of the Collateral Agent or the Administrative Agent;
(i) Receivables arising out of sales on a
bill-and-hold, guaranteed sale, sale-or-return, sale on
approval or consignment basis or, set-off or
charge-back;
(j) Receivables owing from an account debtor that
is an agency, department or instrumentality of the
United States or any State thereof unless the
applicable Loan Party shall have satisfied the
requirements of the Assignment of Claims Act of 1940,
as amended, and any similar State legislation and the
Administrative Agent is satisfied as to the absence of
set-offs, counterclaims and other defenses on the part
of such account debtor;
(k) Receivables the full and timely payment of
which the Administrative Agent in its sole discretion,
exercised in a commercially reasonable manner in
accordance with customary business practices, believes
to be doubtful; and
(l) Receivables in respect of which the Security
Agreement, after giving effect to the related filings
of financing statements that have then been made, if
any, does not or has ceased to create a valid and
perfected first priority lien or security interest in
favor of the Collateral Agent for the benefit of the
Secured Parties securing the Secured Obligations and as
to which no other Liens exists, other than Permitted
Liens.
"Environmental Action" means any action, suit, demand,
demand letter, claim, notice of non-compliance or violation,
notice of liability or potential liability, investigation,
proceeding, consent order or consent agreement relating in
any way to any Environmental Law, any Environmental Permit
or Hazardous Material or arising from alleged injury or
threat to health, safety or the environment, including,
without limitation, (a) by any governmental or regulatory
authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any
governmental or regulatory authority or third party for
damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any Federal, state, local or
foreign statute, law, ordinance, rule, regulation, code,
order, writ, judgment, injunction, decree or judicial or
agency interpretation, policy or guidance relating to
pollution or protection of the environment, health, safety
or natural resources, including, without limitation, those
relating to the use, handling, transportation, treatment,
storage, disposal, release or discharge of Hazardous
Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization
required under any Environmental Law.
"Equity Interests" means, with respect to any Person,
shares of capital stock of (or other ownership or profit
interests in) such Person, warrants, options or other rights
for the purchase or other acquisition from such Person of
shares of capital stock of (or other ownership or profit
interests in) such Person, securities convertible into or
exchangeable for shares of capital stock of (or other
ownership or profit interests in) such Person or warrants,
rights or options for the purchase or other acquisition from
such Person of such shares (or such other interests), and
other ownership or profit interests in such Person
(including, without limitation, partnership, member or trust
interests therein), whether voting or nonvoting, and whether
or not such shares, warrants, options, rights or other
interests are authorized or otherwise existing on any date
of determination.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of
Title IV of ERISA is a member of the controlled group of any
Loan Party, or under common control with any Loan Party,
within the meaning of Section 414 of the Internal Revenue
Code.
"ERISA Event" means (a)(i) the occurrence of a
reportable event, within the meaning of Section 4043 of
ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by
the PBGC or (ii) the requirements of Section 4043(b) of
ERISA apply with respect to a contributing sponsor, as
defined in Section 4001(a)(13) of ERISA, of a Plan, and an
event described in paragraph (9), (10), (11), (12) or (13)
of Section 4043(c) of ERISA is reasonably expected to occur
with respect to such Plan within the following 30 days; (b)
the application for a minimum funding waiver with respect to
a Plan; (c) the provision by the administrator of any Plan
of a notice of intent to terminate such Plan, pursuant to
Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e)
of ERISA); (d) the cessation of operations at a facility of
any Loan Party or any ERISA Affiliate in the circumstances
described in Section 4062(e) of ERISA; (e) the withdrawal by
any Loan Party or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of
ERISA; (f) the conditions for imposition of a lien under
Section 302(f) of ERISA shall have been met with respect to
any Plan; (g) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition described
in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to
administer, such Plan.
"Eurocurrency Liabilities" has the meaning specified in
Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any
Lender Party, the office of such Lender Party specified as
its "Eurodollar Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party (or, if no such
office is specified, its Domestic Lending Office), or such
other office of such Lender Party as such Lender Party may
from time to time specify to the Borrower and the
Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for
all Eurodollar Rate Advances comprising part of the same
Borrowing, an interest rate per annum equal to the rate per
annum obtained by dividing (a) the rate per annum at which
deposits in U.S. dollars are offered by the principal office
of Citibank in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period in an
amount substantially equal to Citibank's Eurodollar Rate
Advance comprising part of such Borrowing to be outstanding
during such Interest Period and for a period equal to such
Interest Period by (b) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears
interest as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest
Period for all Eurodollar Rate Advances comprising part of
the same Borrowing means the reserve percentage applicable
two Business Days before the first day of such Interest
Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for a member bank of
the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference
to which the interest rate on Eurodollar Rate Advances is
determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in
Section 6.01.
"Excess Availability" means the difference between (A)
the sum of the Loan Values of the Eligible Collateral minus
the Reserve Amount and (B) the aggregate principal amount of
the Term Advances plus the Working Capital Advances plus
Swing Line Advances plus Letter of Credit Advances
outstanding plus the aggregate Available Amount of all
Letters of Credit outstanding.
"Existing Debt" has the meaning specified in
Section 4.01(s) hereof.
"Extraordinary Receipt" means any cash received by or
paid to or for the account of any Person not in the ordinary
course of business, including, without limitation, tax
refunds, pension plan reversions, proceeds of insurance
(including, without limitation, any key man life insurance
but excluding proceeds of business interruption insurance to
the extent such proceeds constitute compensation for lost
earnings), condemnation awards (and payments in lieu
thereof), indemnity payments and any purchase price
adjustment received in connection with any purchase
agreement.
"Facility" means the Term Facility, a Working Capital
Facility, the Swing Line Facility or the Letter of Credit
Facility.
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of
the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers
of recognized standing selected by it.
"Fee Letter" means the fee letter dated as of June 2,
2000 between the Parent Guarantor and the Administrative
Agent, as amended.
"Fiscal Year" means a fiscal year of the Borrower and
its Consolidated Subsidiaries ending on January 31 in any
calendar year.
"Filing Date" has the meaning specified in the
Preliminary Statements.
"Final Order" has the meaning specified in Section
3.02(b).
"First Day Orders" means those orders presented to the
Bankruptcy Court in the Cases for consideration on the first
day of the Cases, regardless of whether such orders are
entered on the first day of the Cases or shortly thereafter.
"GAAP" has the meaning specified in Section 1.03.
"GOB Stores" means the Borrower's stores which are in
the process of being liquidated and closed and set forth on
Schedule IV.
"Governmental Authority" means any nation or
government, any state, province, city, municipal entity or
other political subdivision thereof, and any governmental,
executive, legislative, judicial, administrative or
regulatory agency, department, authority, instrumentality,
commission, board, bureau or similar body, whether federal,
state, provincial, territorial, local or foreign.
"Governmental Authorization" means any authorization,
approval, consent, franchise, license, covenant, order,
ruling, permit, certification, exemption, notice,
declaration or similar right, undertaking or other action
of, to or by, or any filing, qualification or registration
with, any Governmental Authority.
"Guaranties" means the Parent Guaranty and the
Subsidiary Guaranty.
"Guarantors" means the Parent Guarantor and the
Subsidiary Guarantors.
"Hazardous Materials" means (a) petroleum or petroleum
products, by-products or breakdown products, radioactive
materials, asbestos-containing materials, polychlorinated
biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated
as hazardous or toxic or as a pollutant or contaminant under
any Environmental Law.
"In Transit Inventory" means inventory that is (i)
fully paid and subject only to a Lien in favor of the
Collateral Agent (other than Permitted Liens), (ii) in
transit to properties owned or leased by the Borrower in the
United States, and (iii) the Collateral Agent or its agent
or bailee shall be named as consignee of the applicable bill
of lading or other document of title.
"Indemnified Party" has the meaning specified in
Section 9.04(b).
"Information Memorandum" means the information
memorandum used by the Arranger and Book Manager in
connection with the syndication of the Commitments.
"Initial Extension of Credit" means the earlier to
occur of the initial Borrowing and the initial issuance of a
Letter of Credit hereunder.
"Initial Issuing Bank", "Initial Lender Parties" and
"Initial Lenders" each has the meaning specified in the
recital of parties to this Agreement.
"Insufficiency" means, with respect to any Plan, the
amount, if any, of its unfunded benefit liabilities, as
defined in Section 4001(a)(18) of ERISA.
"Insurance and Indemnity Agreement" means the Insurance
and Indemnity Agreement dated as of December 9, 1999 among
SRI Receivables Purchase Co., Inc., the Borrower, Bankers
Trust (Delaware), as trustee, and R.V.I. Guaranty Co., Ltd.,
as insurer.
"Intellectual Property Security Agreement" has the
meaning specified in the Security Agreement.
"Interest Period" means, for each Eurodollar Rate
Advance comprising part of the same Borrowing, the period
commencing on the date of such Eurodollar Rate Advance or
the date of the Conversion of any Base Rate Advance into
such Eurodollar Rate Advance, and ending on the last day of
the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period
commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period
selected by the Borrower pursuant to the provisions below.
The duration of each such Interest Period shall be one or
two weeks (as permitted pursuant to the proviso in Section
2.02(c)), one, two, three or six months, as the Borrower
may, upon notice received by the Administrative Agent not
later than 11:00 A.M. (New York City time) on the third
Business Day prior to the first day of such Interest Period,
select; provided, however, that:
(a) the Borrower may not select any Interest
Period with respect to any Eurodollar Rate Advance
under a Facility that ends after any principal
repayment installment date for such Facility unless,
after giving effect to such selection, the aggregate
principal amount of Base Rate Advances and of
Eurodollar Rate Advances having Interest Periods that
end on or prior to such principal repayment installment
date for such Facility shall be at least equal to the
aggregate principal amount of Advances under such
Facility due and payable on or prior to such date;
(b) Interest Periods commencing on the same date
for Eurodollar Rate Advances comprising part of the
same Borrowing shall be of the same duration;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business
Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Business Day,
provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the
next following calendar month, the last day of such
Interest Period shall occur on the next preceding
Business Day; and
(d) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which
there is no numerically corresponding day in the
calendar month that succeeds such initial calendar
month by the number of months equal to the number of
months in such Interest Period, such Interest Period
shall end on the last Business Day of such succeeding
calendar month.
"Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"Interim Order" has the meaning specified in Section
3.01(a)(i).
"Inventory" means all Inventory referred to in
Section 1(b) of the Security Agreement.
"Investment" in any Person means any loan or advance to
such Person, any purchase or other acquisition of any Equity
Interests or Debt or the assets comprising a division or
business unit or a substantial part or all of the business
of such Person, any capital contribution to such Person or
any other direct or indirect investment in such Person,
including, without limitation, any acquisition by way of a
merger or consolidation (or similar transaction) and any
arrangement pursuant to which the investor incurs Debt of
the types referred to in clause (i) or (j) of the definition
of "Debt" in respect of such Person.
"Issuing Bank" means the Initial Issuing Bank and any
Eligible Assignee to which a Letter of Credit Commitment
hereunder has been assigned pursuant to Section 9.07 so long
as such Eligible Assignee expressly agrees to perform in
accordance with their terms all of the obligations that by
the terms of this Agreement are required to be performed by
it as an Issuing Bank and notifies the Administrative Agent
of its Applicable Lending Office and the amount of its
Letter of Credit Commitment (which information shall be
recorded by the Administrative Agent in the Register), for
so long as such Initial Issuing Bank or Eligible Assignee,
as the case may be, shall have a Letter of Credit
Commitment.
"L/C Collateral Account" has the meaning specified in
the Security Agreement.
"L/C Related Documents" has the meaning specified in
Section 2.04(e)(ii).
"Lender Party" means any Lender, the Issuing Bank or
the Swing Line Bank.
"Lenders" means the Initial Lenders and each Person
that shall become a Lender hereunder pursuant to
Section 9.07 for so long as such Initial Lender or Person,
as the case may be, shall be a party to this Agreement.
"Letter of Credit Advance" means an advance made by the
Issuing Bank or any Working Capital Lender pursuant to
Section 2.03(c).
"Letter of Credit Agreement" has the meaning specified
in Section 2.03(a).
"Letter of Credit Commitment" means, with respect to
the Issuing Bank at any time, the amount set forth opposite
the Issuing Bank's name on Schedule I hereto under the
caption "Letter of Credit Commitment" or, if the Issuing
Bank has entered into one or more Assignment and
Acceptances, set forth for the Issuing Bank in the Register
maintained by the Administrative Agent pursuant to
Section 9.07(d) as the Issuing Bank's "Letter of Credit
Commitment", as such amount may be reduced at or prior to
such time pursuant to Section 2.05.
"Letter of Credit Facility" means, at any time, an
amount equal to the amount of the Issuing Bank's Letter of
Credit Commitment at such time, as such amount may be
reduced at or prior to such time pursuant to Section 2.05.
"Letters of Credit" has the meaning specified in
Section 2.01(e).
"Lien" means any lien, security interest or other
charge or encumbrance of any kind, or any other type of
preferential arrangement, including, without limitation, the
lien or retained security title of a conditional vendor and
any easement, right of way or other encumbrance on title to
real property.
"Loan Documents" means (i) this Agreement, (ii) the
Notes, (iii) the Guaranties, (iv) the Collateral Documents,
(v) the Fee Letter, and (vi) each Letter of Credit
Agreement, in each case as amended.
"Loan Parties" means the Borrower and the Guarantors.
"Loan Value" means, with respect to any Eligible
Collateral, an amount equal to (a) with respect to Eligible
Receivables, up to 80% of the value of Eligible Receivables;
(b) with respect to Eligible Inventory, up to 70% of the
value of Eligible Inventory, (c) with respect to Eligible
Real Property, the lesser of up to 25% of the Orderly
Liquidation Value of Eligible Real Property and $45,000,000,
and (d) with respect to Eligible Cash, up to 97% of the
value of Eligible Cash, or, in each case, such lower
percentage of the value of any item of Eligible Collateral
determined by the Administrative Agent in its sole
discretion exercised in a commercially reasonable manner in
accordance with customary business practice.
"Margin Stock" has the meaning specified in
Regulation U.
"Material Adverse Change" means any material adverse
change in the business, condition (financial or otherwise),
operations, performance, properties or prospects of any Loan
Party or any of its Subsidiaries.
"Material Adverse Effect" means a material adverse
effect on (a) the business, condition (financial or
otherwise), operations, performance, properties or prospects
of any Loan Party or any of its Subsidiaries, (b) the rights
and remedies of any Agent or any Lender Party under any
Transaction Document or (c) the ability of any Loan Party to
perform its Obligations under any Transaction Document to
which it is or is to be a party.
"Mortgages" has the meaning specified in
Section 5.01(r).
"Multiemployer Plan" means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, to which any Loan
Party or any ERISA Affiliate is making or accruing an
obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to
make contributions.
"Multiple Employer Plan" means a single employer plan,
as defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of any Loan Party or any ERISA
Affiliate and at least one Person other than the Loan
Parties and the ERISA Affiliates or (b) was so maintained
and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4064 or 4069 of
ERISA in the event such plan has been or were to be
terminated.
"Net Cash Proceeds" means, with respect to any sale,
lease, transfer or other disposition of any asset or the
incurrence or issuance of any Debt or the sale or issuance
of any Equity Interests (including, without limitation, any
capital contribution) by any Person, or any Extraordinary
Receipt received by or paid to or for the account of any
Person, the aggregate amount of cash received from time to
time (whether as initial consideration or through payment or
disposition of deferred consideration) by or on behalf of
such Person in connection with such transaction after
deducting therefrom only (without duplication)
(a) reasonable and customary brokerage commissions,
underwriting fees and discounts, legal fees, finder's fees
and other similar fees and commissions, (b) the amount of
taxes payable in connection with or as a result of such
transaction and (c) the amount of any Debt secured by a Lien
on such asset that, by the terms of the agreement or
instrument governing such Debt, is required to be repaid
upon such disposition, in each case to the extent, but only
to the extent, that the amounts so deducted are, at the time
of receipt of such cash, actually paid to a Person that is
not an Affiliate of such Person or any Loan Party or any
Affiliate of any Loan Party and are properly attributable to
such transaction or to the asset that is the subject
thereof; provided, however, that in the case of taxes that
are deductible under clause (b) above but for the fact that,
at the time of receipt of such cash, such taxes have not
been actually paid or are not then payable, such Loan Party
or such Subsidiary may deduct an amount (the "Reserved
Amount") equal to the amount reserved in accordance with
GAAP for such Loan Party's or such Subsidiary's reasonable
estimate of such taxes, other than taxes for which such Loan
Party or such Subsidiary is indemnified, provided further,
however, that, at the time such taxes are paid, an amount
equal to the amount, if any, by which the Reserved Amount
for such taxes exceeds the amount of such taxes actually
paid shall constitute "Net Cash Proceeds" of the type for
which such taxes were reserved for all purposes hereunder.
"Non-Filing Subsidiaries" means Granite National Bank,
N.A., and SRI Receivables Purchase Co., Inc.
"Nonratable Assignment" means an assignment by a Lender
Party pursuant to Section 9.07(a) of a portion of its rights
and obligations under this Agreement, other than an
assignment of a uniform, and not varying, percentage of all
of the rights and obligations of such Lender Party under and
in respect of all of the Facilities (other than the Letter
of Credit Facility and the Swing Line Facility).
"Note" means a Term Note or a Working Capital Note.
"Notice of Borrowing" has the meaning specified in
Section 2.02(a).
"Notice of Issuance" has the meaning specified in
Section 2.03(a).
"Notice of Renewal" has the meaning specified in
Section 2.01(d).
"Notice of Swing Line Borrowing" has the meaning
specified in Section 2.02(b).
"Notice of Termination" has the meaning specified in
Section 2.01(d).
"NPL" means the National Priorities List under CERCLA.
"Obligation" means, with respect to any Person, any
payment, performance or other obligation of such Person of
any kind, including, without limitation, any liability of
such Person on any claim, whether or not the right of any
creditor to payment in respect of such claim is reduced to
judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or
unsecured, and whether or not such claim is discharged,
stayed or otherwise affected by any proceeding referred to
in Section 6.01(i). Without limiting the generality of the
foregoing, the Obligations of any Loan Party under the Loan
Documents include (a) the obligation to pay principal,
interest, Letter of Credit commissions, charges, expenses,
fees, attorneys' fees and disbursements, indemnities and
other amounts payable by such Loan Party under any Loan
Document and (b) the obligation of such Loan Party to
reimburse any amount in respect of any of the foregoing that
any Lender Party, in its sole discretion, may elect to pay
or advance on behalf of such Loan Party.
"OECD" means the Organization for Economic Cooperation
and Development.
"Off Balance Sheet Obligation" means with respect to
any Person, any obligation of such Person under a synthetic
lease, tax retention operating lease, off-balance sheet loan
or similar off balance sheet financing if the transaction
giving rise to such Obligation is considered indebtedness
for borrowed money for tax purposes but is classified as an
operating lease in accordance with GAAP.
"Open Year" has the meaning specified in
Section 4.01(q)(ii).
"Orderly Liquidation Value" means the orderly
liquidation value of specified real estate assets as set
forth in a recent appraisal report in form, scope and
substance satisfactory to the Administrative Agent.
"Other Taxes" has the meaning specified in
Section 2.12(b).
"Parent Guarantor" has the meaning specified in the
recital of parties to this Agreement.
"Parent Guaranty" means the guaranty of the Parent
Guarantor set forth in Article VII of this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation
(or any successor).
"Permitted Liens" means such of the following as to
which no enforcement, collection, execution, levy or
foreclosure proceeding shall have been commenced: (a) Liens
for taxes, assessments and governmental charges or levies to
the extent not required to be paid under Section 5.01(b);
(b) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's Liens and other similar
Liens arising in the ordinary course of business securing
obligations that (i) are not overdue for a period of more
than 30 days and (ii) individually or together with all
other Permitted Liens outstanding on any date of
determination do not materially adversely affect the use of
the property to which they relate; (c) pledges or deposits
to secure obligations under workers' compensation laws or
similar legislation or to secure public or statutory
obligations; and (d) easements, rights of way and other
encumbrances on title to real property that do not render
title to the property encumbered thereby unmarketable or
materially adversely affect the use of such property for its
present purposes.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company,
joint stock company, trust, unincorporated association,
joint venture or other entity, or a government or any
political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple
Employer Plan.
"Pledged Debt" has the meaning specified in the
Security Agreement.
"Preferred Interests" means, with respect to any
Person, Equity Interests issued by such Person that are
entitled to a preference or priority over any other Equity
Interests issued by such Person upon any distribution of
such Person's property and assets, whether by dividend or
upon liquidation.
"Pre-Petition Agent" means Credit Suisse First Boston
in it capacity as administrative agent and collateral agent
for the Pre-Petition Lenders under the Pre-Petition 1997
Credit Agreement.
"Pre-Petition Lenders" means the banks, financial
institutions and other institutional lenders under the Pre-
Petition 1997 Credit Agreement.
"Pre-Petition 1997 Credit Agreement" means the Amended
and Restated Credit Agreement dated as of June 17, 1997,
among the Borrower, the Parent Guarantor, the Pre-Petition
Lenders and Credit Suisse First Boston, as administrative
agent, collateral agent, swingline bank, and L/C bank, as
amended and restated by (i) the Amendment Agreement dated as
of June 26, 1997, by and among the parties thereto, (ii) the
Second Amendment Agreement dated as of October 1, 1997, by
and among the parties thereto, (iii) the Third Amendment
Agreement dated as of October 7, 1998, by and among the
parties thereto, (iv) the Fourth Amendment Agreement dated
as of January 27, 1999, by and among the parties thereto,(v)
the Fifth Amendment Agreement dated as of February 3, 2000,
by and among the parties thereto, and (vi) the Sixth
Amendment Agreement dated as of February 18, 2000, by and
among the parties thereto, as may from time to time be
amended, supplemented or otherwise modified as permitted in,
and in accordance with, the terms of this Agreement.
"Pre-Petition 2000 Credit Agreement" means the $35
Million Credit Agreement dated as of March 6, 2000 among the
Borrower, the Parent Guarantor, the banks named therein and
Credit Suisse First Boston, as administrative agent and
collateral agent, as the same has been amended, supplemented
or otherwise modified.
"Pro Rata Share" of any amount means, with respect to
any Working Capital Lender at any time, the product of such
amount times a fraction the numerator of which is the amount
of such Lender's Working Capital Commitment at such time
(or, if the Commitments shall have been terminated pursuant
to Section 2.05 or 6.01, such Lender's Working Capital
Commitment as in effect immediately prior to such
termination) and the denominator of which is the Working
Capital Facility at such time (or, if the Commitments shall
have been terminated pursuant to Section 2.05 or 6.01, the
Working Capital Facility as in effect immediately prior to
such termination).
"Receivables" means all Receivables referred to in
Section 1(c) of the Security Agreement.
"Receivables Program" means the receivables
securitization program conducted by the Borrower, the
Receivables Subsidiary and any other special purpose
receivables Subsidiary that may be formed or become a
Subsidiary in the future pursuant to the Receivables Program
Documents as in effect from time to time in accordance with
the terms hereof.
"Receivables Program Documents" means (i) the
Receivables Transfer Agreement, (ii) the Receivables
Purchase Agreement, (iii) the Receivables Pooling and
Servicing Agreement, (iv) the Supplements, (v) the Insurance
and Indemnity Agreement, (vi) the Certificate Purchase
Agreements, and (vii) all other documentation, agreements
and instruments entered into in connection therewith or
pursuant to any other receivables financing program created
in the future, as the same may hereafter be amended,
modified, supplemented or refinanced from time to time in
accordance with the provisions hereof and thereof.
"Receivables Pooling and Servicing Agreement" means the
Second Amended and Restated Pooling and Servicing Agreement
dated as of November 1, 1999 among SRI Receivables Purchase
Co., Inc., the Borrower, and Bankers Trust (Delaware), as
Trustee, as amended by the Amendment and Consent dated as of
December 9, 1999.
"Receivables Purchase Agreement" means the Receivables
Purchase Agreement dated as of May 30, 1996 between the
Borrower and SRI Receivables Purchase Co., Inc., as amended
by (i) the First Amendment dated as of August 1, 1998, among
the parties thereto, and (ii) the Second Amendment dated as
of November 9, 1999 among the parties thereto.
"Receivables Subsidiary" means the collective reference
to (i) SRI Receivables Purchase Company, Inc., a Delaware
corporation, (ii) any other Subsidiary established by the
Parent or the Borrower in connection with the Receivables
Program and whose sole business is to implement and carry
out such Receivables Program and (iii) any Credit Card
Subsidiary.
"Receivables Transfer Agreement" means the Receivables
Transfer Agreement dated as of August 1, 1998 between
Granite National Bank, N.A. and the Borrower, as amended by
the First Amendment dated as of November 9, 1999, among the
parties thereto.
"Redeemable" means, with respect to any Equity
Interest, any Debt or any other right or Obligation, any
such Equity Interest, Debt, right or Obligation that (a) the
issuer has undertaken to redeem at a fixed or determinable
date or dates, whether by operation of a sinking fund or
otherwise, or upon the occurrence of a condition not solely
within the control of the issuer or (b) is redeemable at the
option of the holder.
"Related Documents" means any intercompany notes issued
pursuant to Section 5.02(b)(ii), the Tax Agreement, and the
Pre-Petition 1997 Credit Agreement.
"Reorganization Plan" means a plan of reorganization in
any of the Cases.
"Required Lenders" means, at any time, Lenders owed or
holding at least a majority in interest of the sum of
(a) the aggregate principal amount of the Advances
outstanding at such time and (b) the aggregate Available
Amount of all Letters of Credit outstanding at such time,
(c) the aggregate unused Commitments under the Term Facility
at such time and (d) the aggregate Unused Working Capital
Commitments at such time; provided, however, that if any
Lender shall be a Defaulting Lender at such time, there
shall be excluded from the determination of Required Lenders
at such time (A) the aggregate principal amount of the
Advances owing to such Lender (in its capacity as a Lender)
and outstanding at such time, (B) such Lender's Pro Rata
Share of the aggregate Available Amount of all Letters of
Credit outstanding at such time, and (C) the Unused Working
Capital Commitment of such Lender at such time. For
purposes of this definition, the aggregate principal amount
of Swing Line Advances owing to the Swing Line Bank and of
Letter of Credit Advances owing to the Issuing Bank and the
Available Amount of each Letter of Credit shall be
considered to be owed to the Working Capital Lenders ratably
in accordance with their respective Working Capital
Commitments.
"Reserve Amount" means such aggregate reserve amounts
that the Administrative Agent determines in its sole
discretion exercised in a commercially reasonable manner in
accordance with customary business practices taking into
consideration the Eligible Collateral.
"Responsible Officer" means any officer of any Loan
Party or any of its Subsidiaries.
"Register" has the meaning specified in
Section 8.07(d).
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System, as in effect from
time to time.
"Secured Obligations" has the meaning specified in
Section 2 of the Security Agreement.
"Secured Parties" means the Agents and the Lender
Parties.
"Security Agreement" has the meaning specified in
Section 3.01(a)(ii).
"Senior Notes" shall mean the 8 and one half percent Notes due 2005
issued by the Borrower pursuant to the Senior Note Indenture.
"Senior Note Documents" shall mean the Senior Note
Indenture, the Senior Notes and the Purchase Agreement dated
June 11, 1997, among the Parent Guarantor, the Borrower,
Credit Suisse First Boston Corporation, Bear, Stearns & Co.
Inc., and Donaldson, Lufkin & Jenrette Securities
Corporation.
"Senior Note Indenture" shall mean the Indenture dated
as of June 17, 1997 between the Borrower and the Senior Note
Trustee pursuant to which the Borrower issued the Senior
Notes.
"Senior Note Trustee" shall mean State Street Bank and
Trust Company, in its capacity as trustee under the Senior
Note Indenture.
"Senior Subordinated Notes" shall mean the 9% Notes due
2007 issued by the Borrower pursuant to the Senior
Subordinated Note Indenture.
"Senior Subordinated Note Documents" shall mean the
Senior Subordinated Note Indenture, the Senior Subordinated
Notes and the Purchase Agreement, dated June 11, 1997, among
the Parent Guarantor, the Borrower, Credit Suisse First
Boston Corporation, Bear, Stearns & Co. Inc., and Donaldson,
Lufkin & Jenrette Securities Corporation.
"Senior Subordinated Note Indenture" shall mean the
Indenture dated as of June 17, 1997 between the Borrower and
the Senior Subordinated Note Trustee pursuant to which the
Borrower issued the Senior Subordinated Notes.
"Senior Subordinated Note Trustee" shall mean State
Street Bank and Trust Company in its capacity as trustee
under the Senior Subordinated Note Indenture.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of any Loan Party or any ERISA
Affiliate and no Person other than the Loan Parties and the
ERISA Affiliates or (b) was so maintained and in respect of
which any Loan Party or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan
has been or were to be terminated.
"Standby Letter of Credit" means any Letter of Credit
issued under the Letter of Credit Facility, other than a
Trade Letter of Credit.
"Subordinated Debt" means any Debt of any Loan Party
that is subordinated to the Obligations of such Loan Party
under the Loan Documents on, and that otherwise contains,
terms and conditions satisfactory to the Required Lenders.
"Subsidiary" of any Person means any corporation,
partnership, joint venture, limited liability company, trust
or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital
stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of
such partnership, joint venture or limited liability company
or (c) the beneficial interest in such trust or estate is at
the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Subsidiary Guarantors" means all Subsidiaries of the
Parent Guarantor (other than the Non-Filing Subsidiaries)
and each other Subsidiary of any of them that shall be
required to execute and deliver a guaranty pursuant to
Section 5.01(j) or Section 5.01(k).
"Subsidiary Guaranty" means a guaranty in substantially
the form of Exhibit E, together with each other guaranty
delivered pursuant to Section 5.01(j), in each case as
amended, amended and restated, supplemented or otherwise
modified from time to time in accordance with its terms.
"Super-Priority Claim" means a claim against the
Borrower or any other Loan Party in any of the Cases which
is an administrative expense claim having priority over any
or all administrative expenses of the kind specified in
Section 503(b) or 507(b) of the Bankruptcy Code.
"Supplements" means the (i) Series 1999-1 Supplement
dated as of November 9, 1999 among SRI Receivables Purchase
Co., Inc., the Borrower and Bankers Trust (Delaware, as
trustee, as amended by the Amendment dated as of December 9,
1999, and (ii) Issuance Supplement I dated as of November 9,
1999 among the SRI Receivables Purchase Co., Inc., the
Borrower, Bankers Trust (Delaware), as trustee.
"Surviving Debt" has the meaning specified in
Section 3.01(e).
"Swing Line Advance" means an advance made by (a) the
Swing Line Bank pursuant to Section 2.01(c) or (b) any
Working Capital Lender pursuant to Section 2.02(b).
"Swing Line Bank" means Citibank.
"Swing Line Borrowing" means a borrowing consisting of
a Swing Line Advance made by the Swing Line Bank pursuant
to Section 2.01(b) or the Working Capital Lenders pursuant
to Section 2.02(b).
"Swing Line Facility" has the meaning specified in
Section 2.01(b).
"Tax Agreement" means a tax sharing agreement among the
Parent Guarantor, the Borrower and it Subsidiaries, in form
and substance satisfactory to the Administrative Agent.
"Tax Certificate" has the meaning specified in
Section 5.03(k)
"Taxes" has the meaning specified in Section 2.12(a).
"Term Advance" has the meaning specified in
Section 2.01(a).
"Term Borrowing" means a borrowing consisting of
simultaneous Term Advances of the same Type made by the Term
Lenders.
"Term Commitment" means, with respect to any Term
Lender at any time, the amount set forth opposite such
Lender's name on Schedule I hereto under the caption "Term
Commitment" or, if such Lender has entered into one or more
Assignment and Acceptances, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to
Section 9.07(d) as such Lender's "Term Commitment", as such
amount may be reduced at or prior to such time pursuant to
Section 2.05.
"Term Facility" means, at any time, the aggregate
amount of the Term Lenders' Term Commitments at such time
and such other term facilities as may be permitted from time
to time in accordance with the terms of this Agreement.
"Term Lender" means any Lender that has a Term
Commitment.
"Term Note" means a promissory note of the Borrower
payable to the order of any Term Lender, in substantially
the form of Exhibit A-2 hereto, evidencing the indebtedness
of the Borrower to such Lender resulting from the Term
Advance made by such Lender, as amended.
"Termination Date" means (a) for purposes of the
Working Capital Facility, the Swing Line Facility and the
Letter of Credit Facility, the earlier of (i) June 2, 2003,
(ii) the date of termination in whole of the Working Capital
Commitments and the Letter of Credit Commitment pursuant to
Section 2.05 or 6.01, and (iii) the effective date of
confirmation of a plan of reorganization of the Cases and
(b) for purposes of the Term Facility, the earlier of (i)
June 2, 2003, (ii) the date of termination in whole of the
Term Commitments pursuant to Section 2.05 or 6.01, and (iii)
the effective date of confirmation of a plan of
reorganization of the Cases.
"Trade Letter of Credit" means any Letter of Credit
that is issued under the Letter of Credit Facility for the
benefit of a supplier of Inventory to the Borrower or any of
its respective Subsidiaries to effect payment for such
Inventory, the conditions to drawing under which include the
presentation to the Issuing Bank of negotiable bills of
lading, invoices and related documents sufficient, in the
judgment of the Issuing Bank, to create a valid and
perfected lien on or security interest in such Inventory,
bills of lading, invoices and related documents in favor of
the Issuing Bank.
"Transaction Documents" means, collectively, the Loan
Documents and the Related Documents.
"Type" refers to the distinction between Advances
bearing interest at the Base Rate and Advances bearing
interest at the Eurodollar Rate.
"Unused Working Capital Commitment" means, with respect
to any Working Capital Lender at any time, (a) such Lender's
Working Capital Commitment at such time minus (b) the sum of
(i) the aggregate principal amount of all Working Capital
Advances, Swing Line Advances and Letter of Credit Advances
made by such Lender (in its capacity as a Lender) and
outstanding at such time plus (ii) such Lender's Pro Rata
Share of (A) the aggregate Available Amount of all Letters
of Credit outstanding at such time, (B) the aggregate
principal amount of all Letter of Credit Advances made by
the Issuing Bank pursuant to Section 2.03(c) and outstanding
at such time other than any such Letter of Credit Advance
which, at or prior to such time, has been assigned in part
to such Lender pursuant to Section 2.03(c) and (C) the
aggregate principal amount of all Swing Line Advances made
by the Swing Line Bank pursuant to Section 2.01(b) and
outstanding at such time other than any such Swing Line
Advance which, at or prior to such time, has been assigned
in part to such Lender pursuant to Section 2.02(b).
"Voting Interests" means shares of capital stock issued
by a corporation, or equivalent Equity Interests in any
other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election
of directors (or persons performing similar functions) of
such Person, even if the right so to vote has been suspended
by the happening of such a contingency.
"Welfare Plan" means a welfare plan, as defined in
Section 3(1) of ERISA, that is maintained for employees of
any Loan Party or in respect of which any Loan Party could
have liability.
"Withdrawal Liability" has the meaning specified in
Part I of Subtitle E of Title IV of ERISA.
"Working Capital Advance" has the meaning specified in
Section 2.01(b).
"Working Capital Borrowing" means a borrowing
consisting of simultaneous Working Capital Advances of the
same Type made by the Working Capital Lenders.
"Working Capital Commitment" means, with respect to any
Working Capital Lender at any time, (a) the amount set forth
opposite such Lender's name on Schedule I hereto under the
caption "Working Capital Commitment", (b) if such Lender has
entered into one or more Assignment and Acceptances, the
amount set forth for such Lender in the Register maintained
by the Administrative Agent pursuant to Section 9.07(d) as
such Lender's "Working Capital Commitment", as such amount
may be reduced at or prior to such time pursuant to
Section 2.05.
"Working Capital Facility" means, at any time, the
aggregate amount of the Working Capital Lenders' Working
Capital Commitments at such time.
"Working Capital Lender" means any Lender that has a
Working Capital Commitment.
"Working Capital Note" means a promissory note of the
Borrower payable to the order of any Working Capital Lender,
in substantially the form of Exhibit A-1 hereto, evidencing
the aggregate indebtedness to such Lender resulting from the
Working Capital Advances, Letter of Credit Advances and
Swing Line Advances made by such Lender, as amended.
SECTION 1.02 Computation of Time Periods; Other Definitional
Provisions
. In this Agreement and the other Loan Documents in
the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including"
and the words "to" and "until" each mean "to but excluding".
References in the Loan Documents to any agreement or contract "as
amended" shall mean and be a reference to such agreement or
contract as amended, amended and restated, supplemented or
otherwise modified from time to time in accordance with its
terms.
SECTION 1.03 Accounting Terms
. All accounting terms not specifically defined herein
shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the
preparation of the financial statements referred to in
Section 4.01(g) ("GAAP").
SECTION 1.04 Currency Equivalents Generally
. Any amount specified in this Agreement (other than
in Articles II, VIII and IX) or any of the other Loan Documents
to be in U.S. dollars shall also include the equivalent of such
amount in any currency other than U.S. dollars, such equivalent
amount to be determined at the rate of exchange quoted by
Citibank in New York, New York at the close of business on the
Business Day immediately preceding any date of determination
thereof, to prime banks in New York, New York for the spot
purchase in the New York foreign exchange market of such amount
in U.S. dollars with such other currency.
ARTICLE 2
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
SECTION 2.01 The Advances and the Letters of Credit
. (a) The Term Advances. Each Term Lender severally
agrees, on the terms and conditions hereinafter set forth, to
make a single advance (a "Term Advance") to the Borrower on the
Effective Date in an amount not to exceed such Lender's Term
Commitment at such time; provided, however, if the Term Facility
is reduced as provided in Section 2.05(b)(v) and later increased
as provided therein, another advance in the amount of such
increased amount shall be made after the entry of the Final
Order. The Term Borrowing shall consist of Term Advances made
simultaneously by the Term Lenders ratably according to their
Term Commitments. Amounts borrowed under this Section 2.01(a)
and repaid or prepaid may not be reborrowed.
(b) The Working Capital Advances. Each Working
Capital Lender severally agrees, on the terms and conditions
hereinafter set forth, to make advances (each a "Working Capital
Advance") to the Borrower from time to time on any Business Day
during the period from the Effective Date until the Termination
Date in an amount for each such Advance not to exceed such
Lender's Unused Working Capital Commitment at such time. Each
Working Capital Borrowing shall be in an aggregate amount of
$5,000,000 or an integral multiple of $1,000,000 in excess
thereof and shall consist of Working Capital Advances made
simultaneously by the Working Capital Lenders ratably according
to their Working Capital Commitments. Within the limits of each
Working Capital Lender's Unused Working Capital Commitment in
effect from time to time, the Borrower may borrow under this
Section 2.01(b), prepay pursuant to Section 2.06(a) and reborrow
under this Section 2.01(b).
(c) The Swing Line Advances. The Borrower may request
the Swing Line Bank to make, and the Swing Line Bank may, if in
its sole discretion it elects to do so, make, on the terms and
conditions hereinafter set forth, Swing Line Advances to the
Borrower from time to time on any Business Day during the period
from the date of entry of the Interim Order until the Termination
Date (i) in an aggregate amount not to exceed at any time
outstanding $15,000,000 (the "Swing Line Facility") and (ii) in
an amount for each such Swing Line Borrowing not to exceed the
aggregate of the Unused Working Capital Commitments of the
Working Capital Lenders at such time. No Swing Line Advance
shall be used for the purpose of funding the payment of principal
of any other Swing Line Advance. Each Swing Line Borrowing shall
be in an amount of $500,000 or an integral multiple of $250,000
in excess thereof and shall be made as a Base Rate Advance.
Within the limits of the Swing Line Facility and within the
limits referred to in clause (ii) above, so long as the Swing
Line Bank, in its sole discretion, elects to make Swing Line
Advances, the Borrower may borrow under this Section 2.01(c),
repay pursuant to Section 2.04(c) or prepay pursuant to
Section 2.06(a) and reborrow under this Section 2.01(c).
(d) Letters of Credit. The Issuing Bank, on the terms
and conditions hereinafter set forth, agrees to issue (or cause
its Affiliate that is a commercial bank to issue on its behalf),
letters of credit (the "Letters of Credit") in U.S. Dollars for
the account of the Borrower from time to time on any Business Day
during the period from the Effective Date until 60 days before
the Termination Date in an aggregate Available Amount (i) for all
Letters of Credit at any time not to exceed at any time the
lesser of (x) the Letter of Credit Facility at such time and
(y) the Issuing Bank's Letter of Credit Commitment at such time
and (ii) for each such Letter of Credit not to exceed the Unused
Working Capital Commitments of the Working Capital Lenders at
such time. No Letter of Credit shall have an expiration date
(including all rights of the Borrower or the beneficiary to
require renewal) later than the earlier of 60 days before the
Termination Date and (A) in the case of a Standby Letter of
Credit, one year after the date of issuance thereof, but may by
its terms be renewable upon notice (a "Notice of Renewal") given
to the Issuing Bank and the Administrative Agent on or prior to
any date for notice of renewal set forth in such Letter of Credit
but in any event at least three Business Days prior to the date
of the proposed renewal of such Standby Letter of Credit and upon
fulfillment of the applicable conditions set forth in Article III
unless the Issuing Bank has notified the Borrower (with a copy to
the Administrative Agent) on or prior to the date for notice of
termination set forth in such Letter of Credit but in any event
at least 30 Business Days prior to the date of automatic renewal
of its election not to renew such Standby Letter of Credit (a
"Notice of Termination") and (B) in the case of a Trade Letter of
Credit, 90 days after the date of issuance thereof; provided that
the terms of each Standby Letter of Credit that is automatically
renewable annually shall (x) require the Issuing Bank that issued
such Standby Letter of Credit to give the beneficiary named in
such Standby Letter of Credit notice of any Notice of
Termination, (y) permit such beneficiary, upon receipt of such
notice, to draw under such Standby Letter of Credit prior to the
date such Standby Letter of Credit otherwise would have been
automatically renewed and (z) not permit the expiration date
(after giving effect to any renewal) of such Standby Letter of
Credit in any event to be extended to a date later than 60 days
before the Termination Date. If either a Notice of Renewal is
not given by the Borrower or a Notice of Termination is given by
the Issuing Bank pursuant to the immediately preceding sentence,
such Standby Letter of Credit shall expire on the date on which
it otherwise would have been automatically renewed; provided,
however, that even in the absence of receipt of a Notice of
Renewal the Issuing Bank may in its discretion, unless instructed
to the contrary by the Administrative Agent or the Borrower, deem
that a Notice of Renewal had been timely delivered and in such
case, a Notice of Renewal shall be deemed to have been so
delivered for all purposes under this Agreement. Within the
limits of the Letter of Credit Facility, and subject to the
limits referred to above, the Borrower may request the issuance
of Letters of Credit under this Section 2.01(d), repay any Letter
of Credit Advances resulting from drawings thereunder pursuant to
Section 2.03(c) and request the issuance of additional Letters of
Credit under this Section 2.01(d).
SECTION 2.02 Making the Advances
. (a) Except as otherwise provided in Section 2.02(b)
or 2.03, each Borrowing shall be made on notice, given not later
than 1:00 P.M. (New York City time) on the third Business Day
prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurodollar Rate Advances, or the first
Business Day prior to the date of the proposed Borrowing in the
case of a Borrowing consisting of Base Rate Advances, by the
Borrower to the Administrative Agent, which shall give to each
Appropriate Lender prompt notice thereof by telex or telecopier.
Each such notice of a Borrowing (a "Notice of Borrowing") shall
be by telephone, confirmed immediately in writing, or telex or
telecopier, in substantially the form of Exhibit B hereto,
specifying therein the requested (i) date of such Borrowing,
(ii) Facility under which such Borrowing is to be made,
(iii) Type of Advances comprising such Borrowing, (iv) aggregate
amount of such Borrowing and (v) in the case of a Borrowing
consisting of Eurodollar Rate Advances, initial Interest Period
for each such Advance. Each Lender shall, before 2:00 P.M.
(New York City time) on the date of such Borrowing, make
available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Account, in
same day funds, such Lender's ratable portion of such Borrowing
in accordance with the respective Commitments under the
applicable Facility of such Lender and the other Appropriate
Lenders. After the Administrative Agent's receipt of such funds
and upon fulfillment of the applicable conditions set forth in
Article III, the Administrative Agent will make such funds
available to the Borrower by crediting the Borrower's Account;
provided, however, that, in the case of any Working Capital
Borrowing, the Administrative Agent shall first make a portion of
such funds equal to the aggregate principal amount of any Swing
Line Advances and Letter of Credit Advances made by the Swing
Line Bank or the Issuing Bank, as the case may be, and by any
other Working Capital Lender and outstanding on the date of such
Working Capital Borrowing, plus interest accrued and unpaid
thereon to and as of such date, available to the Swing Line Bank
or the Issuing Bank, as the case may be, and such other Working
Capital Lenders for repayment of such Swing Line Advances and
Letter of Credit Advances.
(b) Each Swing Line Borrowing shall be made on notice,
given not later than 1:00 P.M. (New York City time) on the date
of the proposed Swing Line Borrowing, by the Borrower to the
Swing Line Bank and the Administrative Agent. Each such notice
of a Swing Line Borrowing (a "Notice of Swing Line Borrowing")
shall be by telephone, confirmed immediately in writing, or telex
or telecopier, specifying therein the requested (i) date of such
Borrowing, (ii) amount of such Borrowing and (iii) maturity of
such Borrowing (which maturity shall be no later than the seventh
day after the requested date of such Borrowing). If, in its sole
discretion, it elects to make the requested Swing Line Advance,
the Swing Line Bank will make the amount thereof available to the
Administrative Agent at the Administrative Agent's Account, in
same day funds. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth
in Article III, the Administrative Agent will make such funds
available to the Borrower by crediting the Borrower's Account.
Upon written demand by the Swing Line Bank, with a copy of such
demand to the Administrative Agent, each other Working Capital
Lender shall purchase from the Swing Line Bank, and the Swing
Line Bank shall sell and assign to each such other Working
Capital Lender, such other Lender's Pro Rata Share of such
outstanding Swing Line Advance as of the date of such demand, by
making available for the account of its Applicable Lending Office
to the Administrative Agent for the account of the Swing Line
Bank, by deposit to the Administrative Agent's Account, in same
day funds, an amount equal to the portion of the outstanding
principal amount of such Swing Line Advance to be purchased by
such Lender. The Borrower hereby agrees to each such sale and
assignment. Each Working Capital Lender agrees to purchase its
Pro Rata Share of an outstanding Swing Line Advance on (i) the
Business Day on which demand therefor is made by the Swing Line
Bank, provided that notice of such demand is given not later than
1:00 P.M. (New York City time) on such Business Day or (ii) the
first Business Day next succeeding such demand if notice of such
demand is given after such time. Upon any such assignment by the
Swing Line Bank to any other Working Capital Lender of a portion
of a Swing Line Advance, the Swing Line Bank represents and
warrants to such other Working Capital Lender that the Swing Line
Bank is the legal and beneficial owner of such interest being
assigned by it, but makes no other representation or warranty and
assumes no responsibility with respect to such Swing Line
Advance, the Loan Documents or any Loan Party. If and to the
extent that any Working Capital Lender shall not have so made the
amount of such Swing Line Advance available to the Administrative
Agent, such Working Capital Lender agrees to pay to the
Administrative Agent forthwith on demand such amount together
with interest thereon, for each day from the date of demand by
the Swing Line Bank until the date such amount is paid to the
Administrative Agent, at the Federal Funds Rate. If such Lender
shall pay to the Administrative Agent such amount for the account
of the Swing Line Bank on any Business Day, such amount so paid
in respect of principal shall constitute a Swing Line Advance
made by such Lender on such Business Day for purposes of this
Agreement, and the outstanding principal amount of the Swing Line
Advance made by the Swing Line Bank shall be reduced by such
amount on such Business Day.
(c) Anything in subsection (a) above to the contrary
notwithstanding, the Borrower may not select Eurodollar Rate
Advances for the initial Borrowing hereunder and for the period
from the date hereof to the date of entry of the Final Order (or
such earlier date as shall be specified in its sole discretion by
the Administrative Agent in a written notice to the Borrower and
the Lenders) or for any Borrowing if the aggregate amount of such
Borrowing is less than $10,000,000 or if the obligation of the
Appropriate Lenders to make Eurodollar Rate Advances shall then
be suspended pursuant to Section 2.09 or 2.10 and (ii) Eurodollar
Rate Advances may not be outstanding as part of more than ten
separate Borrowings; provided, however, the Borrower may elect
Eurodollar Rate Advances for the period from the Initial
Extension of Credit through the date of the entry of the Final
Order if the duration of the Interest Period for such Eurodollar
Rate Advance is one or two weeks provided that the last day of
any Interest Period shall not be on any date subsequent to the
date of the entry of the Final Order.
(d) Each Notice of Borrowing and Notice of Swing Line
Borrowing shall be irrevocable and binding on the Borrower. In
the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the
Borrower shall indemnify each Appropriate Lender against any
loss, cost or expense incurred by such Lender as a result of any
failure to fulfill on or before the date specified in such Notice
of Borrowing for such Borrowing the applicable conditions set
forth in Article III, including, without limitation, any loss,
cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender
to fund the Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not
made on such date.
(e) Unless the Administrative Agent shall have
received notice from an Appropriate Lender prior to the date of
any Borrowing under a Facility under which such Lender has a
Commitment that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender
has made such portion available to the Administrative Agent on
the date of such Borrowing in accordance with subsection (a) of
this Section 2.02 and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date
a corresponding amount. If and to the extent that such Lender
shall not have so made such ratable portion available to the
Administrative Agent, such Lender and the Borrower agree to repay
or pay to the Administrative Agent forthwith on demand such
corresponding amount and to pay interest thereon, for each day
from the date such amount is made available to the Borrower until
the date such amount is repaid or paid to the Administrative
Agent, at (i) in the case of the Borrower, the interest rate
applicable at such time under Section 2.07 to Advances comprising
such Borrowing and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall pay to the Administrative Agent
such corresponding amount, such amount so paid shall constitute
such Lender's Advance as part of such Borrowing for all purposes.
(f) The failure of any Lender to make the Advance to
be made by it as part of any Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its
Advance on the date of such Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the
Advance to be made by such other Lender on the date of any
Borrowing.
SECTION 2.03 Issuance of and Drawings and Reimbursement Under
Letters of Credit
. (a) Request for Issuance. Each Letter of Credit
shall be issued upon notice, given not later than 1:00 P.M.
(New York City time) on the third Business Day prior to the date
of the proposed issuance of such Letter of Credit, by the
Borrower to the Issuing Bank, which shall give to the
Administrative Agent and each Working Capital Lender prompt
notice thereof by telex or telecopier. Each such notice of
issuance of a Letter of Credit (a "Notice of Issuance") shall be
by telephone, confirmed immediately in writing, or telex or
telecopier, specifying therein the requested (A) date of such
issuance (which shall be a Business Day), (B) Available Amount of
such Letter of Credit, (C) expiration date of such Letter of
Credit, (D) name and address of the beneficiary of such Letter of
Credit and (E) form of such Letter of Credit, and shall be
accompanied by such application and agreement for letter of
credit as the Issuing Bank may specify to the Borrower for use in
connection with such requested Letter of Credit (a "Letter of
Credit Agreement"). If the requested form of such Letter of
Credit is acceptable to the Issuing Bank in its sole discretion,
the Issuing Bank will, upon fulfillment of the applicable
conditions set forth in Article III, make such Letter of Credit
available to the Borrower at its office referred to in
Section 9.02 or as otherwise agreed with the Borrower in
connection with such issuance. In the event and to the extent
that the provisions of any Letter of Credit Agreement shall
conflict with this Agreement, the provisions of this Agreement
shall govern.
(b) Letter of Credit Reports. The Issuing Bank shall
furnish (A) to the Administrative Agent on the first Business Day
of each month a written report summarizing issuance and
expiration dates of Letters of Credit issued during the previous
month, drawings during such month under all Letters of Credit and
the aggregate Available Amount of all Letters of Credit
outstanding during such month, and (B) to the Administrative
Agent and each Working Capital Lender on the first Business Day
of each calendar quarter a written report setting forth the
average daily aggregate Available Amount during the preceding
calendar quarter of all Letters of Credit.
(c) Drawing and Reimbursement. The payment by the
Issuing Bank of a draft drawn under any Letter of Credit shall
constitute for all purposes of this Agreement the making by the
Issuing Bank of a Letter of Credit Advance, which shall be a Base
Rate Advance, in the amount of such draft. Upon written demand
by the Issuing Bank, with a copy of such demand to the
Administrative Agent, each Working Capital Lender shall purchase
from the Issuing Bank, and the Issuing Bank shall sell and assign
to each such Working Capital Lender, such Working Capital
Lender's Pro Rata Share of such outstanding Letter of Credit
Advance as of the date of such purchase, by making available for
the account of its Applicable Lending Office to the
Administrative Agent for the account of the Issuing Bank, by
deposit to the Administrative Agent's Account, in same day funds,
an amount equal to the portion of the outstanding principal
amount of such Letter of Credit Advance to be purchased by such
Lender. Promptly after receipt thereof, the Administrative Agent
shall transfer such funds to the Issuing Bank. The Borrower
hereby agrees to each such sale and assignment. Each Working
Capital Lender agrees to purchase its Pro Rata Share of an
outstanding Letter of Credit Advance on (i) the Business Day on
which demand therefor is made by the Issuing Bank, provided that
notice of such demand is given not later than 12:30 P.M.
(New York City time) on such Business Day, or (ii) the first
Business Day next succeeding such demand if notice of such demand
is given after such time. Upon any such assignment by the
Issuing Bank to any other Working Capital Lender of a portion of
a Letter of Credit Advance, the Issuing Bank represents and
warrants to such other Lender that the Issuing Bank is the legal
and beneficial owner of such interest being assigned by it, free
and clear of any liens, but makes no other representation or
warranty and assumes no responsibility with respect to such
Letter of Credit Advance, the Loan Documents or any Loan Party.
If and to the extent that any Working Capital Lender shall not
have so made the amount of such Letter of Credit Advance
available to the Administrative Agent, such Working Capital
Lender agrees to pay to the Administrative Agent forthwith on
demand such amount together with interest thereon, for each day
from the date of demand by the Issuing Bank until the date such
amount is paid to the Administrative Agent, at the Federal Funds
Rate for its account or the account of the Issuing Bank, as
applicable. If such Lender shall pay to the Administrative Agent
such amount for the account of the Issuing Bank on any Business
Day, such amount so paid in respect of principal shall constitute
a Letter of Credit Advance made by such Lender on such Business
Day for purposes of this Agreement, and the outstanding principal
amount of the Letter of Credit Advance made by the Issuing Bank
shall be reduced by such amount on such Business Day.
(d) Failure to Make Letter of Credit Advances. The
failure of any Lender to make the Letter of Credit Advance to be
made by it on the date specified in Section 2.03(c) shall not
relieve any other Lender of its obligation hereunder to make its
Letter of Credit Advance on such date, but no Lender shall be
responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such
date.
SECTION 2.04 Repayment of Advances
. (a) Term Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Term Lenders
the aggregate outstanding principal amount of the Term Advances
(which amounts shall be reduced as a result of the application of
prepayments in accordance with the order of priority set forth in
Section 2.06) on the Termination Date and in any event shall be
in an amount equal to the aggregate principal amount of the Term
Advances outstanding on such date.
(b) Working Capital Advances. The Borrower shall
repay to the Administrative Agent for the ratable account of the
Working Capital Lenders on the Termination Date the aggregate
principal amount of the Working Capital Advances then
outstanding.
(c) Swing Line Advances. The Borrower shall repay to
the Administrative Agent for the account of the Swing Line Bank
and each other Working Capital Lender that has made a Swing Line
Advance the outstanding principal amount of each Swing Line
Advance by each of them on the earlier of the maturity date
specified in the applicable Notice of Swing Line Borrowing (which
maturity shall be no later than the seventh day after the
requested date of such Borrowing) and the Termination Date.
(d) Letter of Credit Advances. (i) The Borrower
shall repay to the Administrative Agent for the account of the
Issuing Bank and each other Working Capital Lender that has made
a Letter of Credit Advance on the earlier of demand and the
Termination Date the outstanding principal amount of each Letter
of Credit Advance made by each of them.
(ii) The Obligations of the Borrower under this
Agreement, any Letter of Credit Agreement and any other
agreement or instrument relating to any Letter of Credit
shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement,
such Letter of Credit Agreement and such other agreement or
instrument under all circumstances, including, without
limitation, the following circumstances (it being understood
that any such payment by the Borrower is without prejudice
to, and does not constitute a waiver of, any rights the
Borrower might have or might acquire against the Issuing
Bank, the beneficiaries of such Letter of Credit or any
other Person as a result of the payment by the Issuing Bank
of any draft or the reimbursement by the Borrower thereof):
(A) any lack of validity or enforceability
of any Loan Document, any Letter of Credit Agreement,
any Letter of Credit, the Interim Order or the Final
Order or any other agreement or instrument relating
thereto (all of the foregoing being, collectively, the
"L/C Related Documents");
(B) any change in the time, manner or place
of payment of, or in any other term of, all or any of
the Obligations of the Borrower in respect of any L/C
Related Document or any other amendment or waiver of or
any consent to departure from all or any of the L/C
Related Documents;
(C) the existence of any claim, set-off,
defense or other right that the Borrower may have at
any time against any beneficiary or any transferee of a
Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the
Issuing Bank or any other Person, whether in connection
with the transactions contemplated by the L/C Related
Documents or any unrelated transaction;
(D) any statement or any other document
presented under a Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or
inaccurate in any respect;
(E) payment by the Issuing Bank under a
Letter of Credit against presentation of a draft,
certificate or other document that does not strictly
comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection
of any Collateral or other collateral, or any release
or amendment or waiver of or consent to departure from
the Guaranties or any other guarantee, for all or any
of the Obligations of the Borrower in respect of the
L/C Related Documents; or
(G) any other circumstance or happening
whatsoever, whether or not similar to any of the
foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower, any
Guarantor or any other guarantor.
SECTION 2.05 Termination or Reduction of the Commitments
. (a) Optional. The Borrower may, upon at least five
Business Days' notice to the Administrative Agent, terminate in
whole or reduce in part the Letter of Credit Facility and the
Unused Working Capital Commitments; provided, however, each
partial reduction of a Facility (i) shall be in an aggregate
amount of $5,000,000 or an integral multiple of $1,000,000 in
excess thereof and (ii) shall be made ratably among the
Appropriate Lenders in accordance with their Commitments with
respect to such Facility. The Borrower may not cancel or reduce
the Term Commitments at any time except for any cancellation or
reduction made solely by virtue of application of Net Cash
Proceeds pursuant to Section 2.06(b)(i).
(b) Mandatory. (i) On the date of the Term
Borrowing, after giving effect to such Term Borrowing, and from
time to time thereafter upon each repayment or prepayment of the
Term Advances, the aggregate Term Commitments of the Term Lenders
shall be automatically and permanently reduced, on a pro rata
basis, by an amount equal to the amount by which the aggregate
Term Commitments immediately prior to such reduction exceed the
aggregate unpaid principal amount of the Term Advances then
outstanding.
(ii) The Letter of Credit Facility shall be
permanently reduced from time to time on the date of each
reduction in the Working Capital Facility by the amount, if any,
by which the amount of the Letter of Credit Facility exceeds the
Working Capital Facility after giving effect to such reduction of
the Working Capital Facility.
(iii) The Swing Line Facility shall be
permanently reduced from time to time on the date of each
reduction in the Working Capital Facility by the amount, if any,
by which the amount of the Swing Line Facility exceeds the
Working Capital Facility after giving effect to such reduction of
the Working Capital Facility.
(iv) The Working Capital Facility shall be
automatically and permanently reduced on each date on which
prepayment thereof is required to be made pursuant to 2.06(b)(i)
(other than in the case of a mandatory prepayment of Net Cash
Proceeds in connection with a GOB Store or Extraordinary Receipts
arising from insurance proceeds) in an amount equal to such
prepayment of the Working Capital Advances, provided that each
such reduction of the Working Capital Facility shall be made
ratably among the Working Capital Lenders in accordance with
their Working Capital Commitments.
(v) After giving effect to the maximum amount of
the Term Facility, the Working Capital Facility shall be reduced
to an amount equal to the lesser of (i) $235,000,000 and (ii)
after giving effect to the maximum amount of the Term Facility,
the maximum amount permitted to be made available to the Borrower
under the Interim Order until entry of the Final Order whereupon
the Working Capital Facility shall be increased to the full
amount thereof approved therein (such reduction and increase to
be made ratably among the Appropriate Lenders in accordance with
their Commitments with respect to the Working Capital Facility);
provided however if the maximum amount permitted to made
available to the Borrower under the Interim Order until entry of
the Final Order is equal to or less than $150,000,000 then the
Term Facility shall be reduced to such maximum permitted amount
until entry of the Final Order whereupon the Term Facility shall
be increased to the full amount thereof approved therein (such
reduction and increase to be made ratably among the Appropriate
Lenders in accordance with their Commitments with respect to the
Term Facility)
SECTION 2.06 Prepayments
. (a) Optional. Notwithstanding the automatic
prepayment of the outstanding Advances on a daily basis from
amounts on deposit in the Cash Concentration Account, the
Borrower may, upon at least one Business Day's notice in the case
of Base Rate Advances and three Business Days' notice in the case
of Eurodollar Rate Advances, in each case to the Administrative
Agent stating the proposed date and aggregate principal amount of
the prepayment, and if such notice is given the Borrower shall,
prepay the outstanding aggregate principal amount of the Advances
comprising part of the same Borrowing in whole or ratably in
part, together with accrued interest to the date of such
prepayment on the aggregate principal amount prepaid; provided
that (x) each partial prepayment shall be in an aggregate
principal amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and (y) if any prepayment of a
Eurodollar Rate Advance is made on a date other than the last day
of an Interest Period for such Advance, the Borrower shall also
pay any amounts owing pursuant to Section 9.04(c). Each such
prepayment shall be applied ratably first to the Working Capital
Facility as set forth in clause (iv) below and second to the Term
Facility.
(b) Mandatory. (i) The Borrower shall, on the date
of receipt of the Net Cash Proceeds by any Loan Party or any of
its Subsidiaries from (A) the sale, lease, transfer or other
disposition of any assets of any Loan Party or any of its
Subsidiaries (other than any sale, lease, transfer or other
disposition of assets permitted under clause (i) of Section
5.02(e)), (B) the incurrence or issuance by any Loan Party or any
of its Subsidiaries of any Debt (other than Debt permitted to be
incurred or issued pursuant to Section 5.02(b)) and (C) the sale
or issuance by any Loan Party or any of its Subsidiaries of any
capital stock or other ownership or profit interest (including,
without limitation, any capital contribution), any securities
convertible into or exchangeable for capital stock or other
ownership or profit interest or any warrants, rights or options
to acquire capital stock or other ownership or profit interest,
prepay an aggregate principal amount of the Advances comprising
part of the same Borrowings equal to the amount of such Net Cash
Proceeds. Each such prepayment shall be applied ratably first to
the Working Capital Facility as set forth in clause (iv) below
and second to the Term Facility.
(ii) The Borrower shall, on each Business Day,
prepay an aggregate principal amount of the Term Advances
comprising part of the same Borrowings, and Working Capital
Advances comprising part of the same Borrowings, the Letter of
Credit Advances and the Swing Line Advances and deposit an amount
in the L/C Collateral Account equal to the amount by which
(A) the sum of the aggregate principal amount of (w) the Term
Advances, (x) the Working Capital Advances, (y) the Letter of
Credit Advances and (z) the Swing Line Advances then outstanding
plus the aggregate Available Amount of all Letters of Credit then
outstanding exceeds (B) the lesser of (w) the Term Facility, (x)
the Working Capital Facility and (y) the Loan Value of Eligible
Collateral on such Business Day minus the Reserve Amount. Each
such prepayment shall be applied ratably first to the Working
Capital Facility as set forth in clause (iv) below and second to
the Term Facility.
(iii) The Borrower shall, on each Business
Day, pay to the Administrative Agent for deposit in the L/C
Collateral Account an amount sufficient to cause the aggregate
amount on deposit in the L/C Collateral Account to equal to 105%
of the amount by which the aggregate Available Amount of all
Letters of Credit then outstanding exceeds the Letter of Credit
Facility on such Business Day.
(iv) Prepayments of the Working Capital Facility
made pursuant to clause (i) and (ii) above shall be first applied
to prepay Letter of Credit Advances then outstanding until such
Advances are paid in full, second applied to prepay Swing Line
Advances then outstanding until such Advances are paid in full
and third applied to prepay Working Capital Advances then
outstanding comprising part of the same Borrowings until such
Advances are paid in full.
(v) All prepayments under this subsection (b)
shall be made together with accrued interest to the date of such
prepayment on the principal amount prepaid, together with any
amounts owing pursuant to Section 9.04(c). If any payment of
Eurodollar Rate Advances otherwise required to be made under this
Section 2.06(b) would be made on a day other than the last day of
the applicable Interest Period therefor, the Borrower may direct
the Administrative Agent to (and if so directed, the
Administrative Agent shall) deposit such payment in the
Collateral Account until the last day of the applicable Interest
Period at which time the Administrative Agent shall apply the
amount of such payment to the prepayment of such Advances;
provided, however, that such Advances shall continue to bear
interest as set forth in Section 2.07 until the last day of the
applicable Interest Period therefor.
SECTION 2.07 Interest
. (a) Scheduled Interest. The Borrower shall pay
interest on the unpaid principal amount of each Advance owing to
each Lender from the date of such Advance until such principal
amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as
such Advance is a Base Rate Advance, a rate per annum
equal at all times to the sum of (A) the Base Rate in
effect from time to time plus (B) the Applicable
Margin, as is in effect from time to time, payable in
arrears monthly on the first day of each month
commencing July 1, 2000 and on the date such Base Rate
Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such
periods as such Advance is a Eurodollar Rate Advance, a
rate per annum equal at all times during each Interest
Period for such Advance to the sum of (A) the
Eurodollar Rate for such Interest Period for such
Advance plus (B) the Applicable Margin, as is in effect
from time to time, payable in arrears on the last day
of such Interest Period and, if such Interest Period
has a duration of more than three months, on each day
that occurs during such Interest Period every three
months from the first day of such Interest Period and
on the date such Eurodollar Rate Advance shall be
Converted or paid in full.
(b) Default Interest. Upon the occurrence and during
the continuance of an Event of Default, the Borrower shall pay
interest on (i) the unpaid principal amount of each Advance owing
to each Lender, payable in arrears on the dates referred to in
clause (a)(i) or (a)(ii) above and on demand, at a rate per annum
equal at all times to 2% per annum above the rate per annum
required to be paid on such Advance pursuant to clause (a)(i) or
(a)(ii) above and (ii) to the fullest extent permitted by law,
the amount of any interest, fee or other amount payable under the
Loan Documents that is not paid when due, from the date such
amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full
and on demand, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid, in the case
of interest, on the Type of Advance on which such interest has
accrued pursuant to clause (a)(i) or (a)(ii) above and, in all
other cases, on Base Rate Advances pursuant to clause (a)(i)
above.
(c) Notice of Interest Rate. Promptly after receipt
of a Notice of Borrowing pursuant to Section 2.02(a), a notice
of Conversion pursuant to Section 2.09 or a notice of selection
of an Interest Period pursuant to the terms of the definition of
"Interest Period", the Administrative Agent shall give notice to
the Borrower and each Appropriate Lender of the applicable
Interest Period and the applicable interest rate determined by
the Administrative Agent for purposes of clause (a)(i) or (a)(ii)
above.
SECTION 2.08 Fees
. (a) Commitment Fee. The Borrower agrees to pay to
the Administrative Agent for the account of the Working Capital
Lenders a commitment fee, from the date hereof in the case of
each Initial Working Capital Lender and from the effective date
specified in the Assignment and Acceptance pursuant to which it
became a Working Capital Lender in the case of each other Working
Capital Lender until the Termination Date, payable in arrears on
the date of the initial Extension of Credit and, thereafter
monthly on the first day of each month, commencing July 1, 2000,
and on the Termination Date, at the rate equal to the Applicable
Percentage from time to time on the daily Unused Working Capital
Commitment of such Lender plus its Pro Rata Share of the daily
outstanding Swing Line Advances during such quarter other than
any such Swing Line Advances which have been assigned in part to
such Lender pursuant to Section 2.03(c); provided, however, that
no commitment fee shall accrue on any of the Commitments of a
Defaulting Lender so long as such Lender shall be a Defaulting
Lender.
(b) Letter of Credit Fees, Etc. (i) The Borrower
agrees to pay to the Administrative Agent for the account of each
Working Capital Lender a commission, payable in arrears monthly
on the first day of each month, commencing July 1, 2000, and on
the Termination Date, on such Lender's Pro Rata Share of the
average daily aggregate Available Amount during such quarter of
Letters of Credit outstanding from time to time at the rate equal
to the Applicable Letter of Credit Fee from time to time;
provided, however, upon the occurrence and during the continuance
of any Default under Section 6.01(a) or an Event of Default, the
Administrative Agent may, and upon the request of the Required
Lenders shall, require that such commission shall increase by a
rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on such commission pursuant to this
clause (i), payable on demand.
(ii) The Borrower shall pay to the Issuing Bank,
for its own account a fronting fee, payable in arrears monthly on
the first day of each month, commencing July 1, 2000, and on the
Termination Date, on the average daily aggregate Available Amount
during such quarter of Letters of Credit outstanding from time to
time at the rate of 0.375% per annum.
(c) Agents' Fees. The Borrower agrees to pay to each
Agent for its own account such fees as may from time to time be
agreed in writing between the Parent Guarantor and such Agent.
SECTION 2.09 Conversion of Advances
. (a) Optional. The Borrower may on any Business
Day, upon notice given to the Administrative Agent not later than
1:00 P.M. (New York City time) on the third Business Day prior to
the date of the proposed Conversion and subject to the provisions
of Sections 2.07 and 2.10, Convert all or any portion of the
Advances of one Type comprising the same Borrowing into Advances
of the other Type; provided, however, that any Conversion of
Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar
Rate Advances, any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the
minimum amount specified in Section 2.02(c), no Conversion of any
Advances shall result in more separate Borrowings than permitted
under Section 2.02(c) and each Conversion of Advances comprising
part of the same Borrowing under any Facility shall be made
ratably among the Appropriate Lenders in accordance with their
Commitments under such Facility. Each such notice of Conversion
shall, within the restrictions specified above, specify (i) the
date of such Conversion, (ii) the Advances to be Converted and
(iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for such Advances. Each
notice of Conversion shall be irrevocable and binding on the
Borrower.
(b) Mandatory. (i) On the date on which the
aggregate unpaid principal amount of Eurodollar Rate Advances
comprising any Borrowing shall be reduced, by payment or
prepayment or otherwise, to less than $5,000,000, such Advances
shall automatically Convert into Base Rate Advances.
(ii) If the Borrower shall fail to select the
duration of any Interest Period for any Eurodollar Rate Advances
in accordance with the provisions contained in the definition of
"Interest Period" in Section 1.01, the Administrative Agent will
forthwith so notify the Borrower and the Lenders, whereupon each
such Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a
Base Rate Advance.
(iii) Prior to the entry of the Final Order or
upon the occurrence and during the continuance of any Event of
Default, (x) each Eurodollar Rate Advance will automatically, on
the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (y) the obligation of the
Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended.
SECTION 2.10 Increased Costs, Etc
. (a) If, due to either (i) the introduction of or
any change in or in the interpretation of any law or regulation
or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not
having the force of law), there shall be any increase in the cost
to any Lender Party of agreeing to make or of making, funding or
maintaining Eurodollar Rate Advances or of agreeing to issue or
of issuing or maintaining or participating in Letters of Credit
or of agreeing to make or of making or maintaining Letter of
Credit Advances (excluding, for purposes of this Section 2.10,
any such increased costs resulting from (x) Taxes or Other Taxes
(as to which Section 2.12 shall govern) and (y) changes in the
basis of taxation of overall net income or overall gross income
by the United States or by the foreign jurisdiction or state
under the laws of which such Lender Party is organized or has its
Applicable Lending Office or any political subdivision thereof),
then the Borrower agrees from time to time, upon demand by such
Lender Party (with a copy of such demand to the Administrative
Agent), to pay to the Administrative Agent for the account of
such Lender Party additional amounts sufficient to compensate
such Lender Party for such increased cost. A certificate as to
the amount of such increased cost, submitted to the Borrower by
such Lender Party, shall be conclusive and binding for all
purposes, absent manifest error.
(b) If, due to either (i) the introduction of or any
change in or in the interpretation of any law or regulation or
(ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not
having the force of law), there shall be any increase in the
amount of capital required or expected to be maintained by any
Lender Party or any corporation controlling such Lender Party as
a result of or based upon the existence of such Lender Party's
commitment to lend or to issue or participate in Letters of
Credit hereunder and other commitments of such type or the
issuance or maintenance of or participation in the Letters of
Credit (or similar contingent obligations), then, upon demand by
such Lender Party (with a copy of such demand to the
Administrative Agent), the Borrower agrees to pay to the
Administrative Agent for the account of such Lender Party, from
time to time as specified by such Lender Party, additional
amounts sufficient to compensate such Lender Party in the light
of such circumstances, to the extent that such Lender Party
reasonably determines such increase in capital to be allocable to
the existence of such Lender Party's commitment to lend or to
issue or participate in Letters of Credit hereunder or to the
issuance or maintenance of or participation in any Letters of
Credit. A certificate as to such amounts submitted to the
Borrower by such Lender Party shall be conclusive and binding for
all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances
under any Facility, Lenders owed a majority of the then aggregate
unpaid principal amount thereof notify the Administrative Agent
that the Eurodollar Rate for any Interest Period for such
Advances will not adequately reflect the cost to such Lenders of
making, funding or maintaining their Eurodollar Rate Advances for
such Interest Period, the Administrative Agent shall forthwith so
notify the Borrower and the Appropriate Lenders, whereupon
(i) each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert
into a Base Rate Advance and (ii) the obligation of the
Appropriate Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower that such Lenders
have determined that the circumstances causing such suspension no
longer exist.
(d) Notwithstanding any other provision of this
Agreement, if the introduction of or any change in or in the
interpretation of any law or regulation shall make it unlawful,
or any central bank or other governmental authority shall assert
that it is unlawful, for any Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar
Rate Advances or to continue to fund or maintain Eurodollar Rate
Advances hereunder, then, on notice thereof and demand therefor
by such Lender to the Borrower through the Administrative Agent,
(i) each Eurodollar Rate Advance under each Facility which such
Lender has a Commitment will automatically, on the last day of
the then existing Interest Period therefor or, if required by
applicable law, immediately, Convert into a Base Rate Advance and
(ii) the obligation of the Appropriate Lenders to make, or to
Convert Advances into, Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the
Borrower that such Lender has determined that the circumstances
causing such suspension no longer exist.
SECTION 2.11 Payments and Computations
. (a) The Borrower shall make each payment hereunder
and under the Notes, irrespective of any right of counterclaim or
set-off (except as otherwise provided in Section 2.15), not later
than 1:00 P.M. (New York City time) on the day when due in U.S.
dollars to the Administrative Agent at the Administrative Agent's
Account in same day funds, with payments being received by the
Administrative Agent after such time being deemed to have been
received on the next succeeding Business Day. The Administrative
Agent will promptly thereafter cause like funds to be distributed
(i) if such payment by the Borrower is in respect of principal,
interest, commitment fees or any other Obligation then payable
hereunder and under the Notes to more than one Lender Party, to
such Lender Parties for the account of their respective
Applicable Lending Offices ratably in accordance with the amounts
of such respective Obligations then payable to such Lender
Parties and (ii) if such payment by the Borrower is in respect of
any Obligation then payable hereunder to one Lender Party, to
such Lender Party for the account of its Applicable Lending
Office, in each case to be applied in accordance with the terms
of this Agreement. Upon its acceptance of an Assignment and
Acceptance and recording of the information contained therein in
the Register pursuant to Section 9.07(d), from and after the
effective date of such Assignment and Acceptance, the
Administrative Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the
Lender Party assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments
in such payments for periods prior to such effective date
directly between themselves.
(b) The Borrower hereby authorizes each Lender Party
and each of its Affiliates, if and to the extent payment owed to
such Lender Party is not made when due hereunder or, in the case
of a Lender, under the Note held by such Lender, to charge from
time to time, to the fullest extent permitted by law, against any
and all of the Borrower's accounts with such Lender Party or such
Affiliate any amount so due.
(c) All computations of interest, fees and Letter of
Credit commissions shall be made by the Administrative Agent on
the basis of a year of 360 days, in each case for the actual
number of days (including the first day but excluding the last
day) occurring in the period for which such interest, fees or
commissions are payable. Each determination by the
Administrative Agent of an interest rate, fee or commission
hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(d) Whenever any payment hereunder or under the Notes
shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the
computation of payment of interest or commitment or letter of
credit fee or commission, as the case may be; provided, however,
that, if such extension would cause payment of interest on or
principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next
preceding Business Day.
(e) Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which any
payment is due to any Lender Party hereunder that the Borrower
will not make such payment in full, the Administrative Agent may
assume that the Borrower have made such payment in full to the
Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to
each such Lender Party on such due date an amount equal to the
amount then due such Lender Party. If and to the extent the
Borrower shall not have so made such payment in full to the
Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed
to such Lender Party together with interest thereon, for each day
from the date such amount is distributed to such Lender Party
until the date such Lender Party repays such amount to the
Administrative Agent, at the Federal Funds Rate.
(f) Whenever any payment received by the
Administrative Agent under this Agreement or any of the other
Loan Documents is insufficient to pay in full all amounts due and
payable to the Agents and the Lender Parties under or in respect
of this Agreement and the other Loan Documents on any date, such
payment shall be distributed by the Administrative Agent and
applied by the Agents and the Lender Parties in the following
order of priority:
(i) first, to the payment of all of the fees,
indemnification payments, costs and expenses that are
due and payable to the Agents (solely in their
respective capacities as Agents) under or in respect of
this Agreement and the other Loan Documents on such
date, ratably based upon the respective aggregate
amounts of all such fees, indemnification payments,
costs and expenses owing to the Agents on such date;
(ii) second, to the payment of all of the fees,
indemnification payments, costs and expenses that are
due and payable to the Issuing Bank and the Swing Line
Bank (solely in their respective capacities as such)
under or in respect of this Agreement and the other
Loan Documents on such date, ratably based upon the
respective aggregate amounts of all such fees,
indemnification payments, costs and expenses owing to
the Issuing Bank and the Swing Line Bank on such date;
(iii) third, to the payment of all of the
indemnification payments, costs and expenses that are
due and payable to the Lenders under Section 8.04
hereof, Section 12of the Subsidiary Guaranty, Section
24 of the Security Agreement and any similar section of
any of the other Loan Documents on such date, ratably
based upon the respective aggregate amounts of all such
indemnification payments, costs and expenses owing to
the Lenders on such date;
(iv) fourth, to the payment of all of the amounts
that are due and payable to the Administrative Agent
and the Lender Parties under Sections 2.10 and 2.12
hereof and Section 5 of the Subsidiary Guaranty on such
date, ratably based upon the respective aggregate
amounts thereof owing to the Administrative Agent and
the Lender Parties on such date;
(v) fifth, to the payment of all of the fees that
are due and payable to the Lenders under Section
2.08(a) on such date, ratably based upon the respective
aggregate Commitments of the Lenders under the
Facilities on such date;
(vi) sixth, to the payment of all of the accrued
and unpaid interest on the Obligations of the Borrower
under or in respect of the Loan Documents that is due
and payable to the Administrative Agent and the Lender
Parties under Section 2.07(b) on such date, ratably
based upon the respective aggregate amounts of all such
interest owing to the Administrative Agent and the
Lender Parties on such date;
(vii) seventh, to the payment of all of the
accrued and unpaid interest on the Advances that is due
and payable to the Administrative Agent and the Lender
Parties under Section 2.07(a) on such date, ratably
based upon the respective aggregate amounts of all such
interest owing to the Administrative Agent and the
Lender Parties on such date;
(viii) eighth, to the payment of the principal
amount of all of the outstanding Advances that is due
and payable to the Administrative Agent and the Lender
Parties on such date, ratably based upon the respective
aggregate amounts of all such principal owing to the
Administrative Agent and the Lender Parties on such
date; and
(ix) ninth, to the payment of all other
Obligations of the Loan Parties owing under or in
respect of the Loan Documents that are due and payable
to the Administrative Agent and the other Secured
Parties on such date, ratably based upon the respective
aggregate amounts of all such Obligations owing to the
Administrative Agent and the other Secured Parties on
such date.
If the Administrative Agent receives funds for application to the
Obligations of the Loan Parties under or in respect of the Loan
Documents under circumstances for which the Loan Documents do not
specify the Advances or the Facility to which, or the manner in
which, such funds are to be applied, the Administrative Agent
may, but shall not be obligated to, elect to distribute such
funds to each of the Lender Parties in accordance with such
Lender Party's Pro Rata Share of the sum of (a) the aggregate
principal amount of all Advances outstanding at such time and (b)
the aggregate Available Amount of all Letters of Credit
outstanding at such time, in repayment or prepayment of such of
the outstanding Advances or other Obligations then owing to such
Lender Party, and, in the case of the Term Facility, for
application to such principal repayment installments thereof, as
the Administrative Agent shall direct.
SECTION 2.12 Taxes
. (a) Any and all payments by the Borrower hereunder
or under the Notes shall be made, in accordance with
Section 2.11, free and clear of and without deduction for any and
all present or future taxes, levies, imposts, deductions, charges
or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender Party and each Agent, taxes
that are imposed on its overall net income by the United States
and taxes that are imposed on its overall net income (and
franchise taxes imposed in lieu thereof) by the state or foreign
jurisdiction under the laws of which such Lender Party or such
Agent, as the case may be, is organized or any political
subdivision thereof and, in the case of each Lender Party, taxes
that are imposed on its overall net income (and franchise taxes
imposed in lieu thereof) by the state or foreign jurisdiction of
such Lender Party's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities in
respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under any Note to any Lender Party or any
Agent, (i) the sum payable by the Borrower shall be increased as
may be necessary so that after the Borrower and the
Administrative Agent have made all required deductions (including
deductions applicable to additional sums payable under this
Section 2.12) such Lender Party or such Agent, as the case may
be, receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make
all such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or
future stamp, documentary, excise, property or similar taxes,
charges or levies that arise from any payment made by the
Borrower hereunder or under the Notes or from the execution,
delivery or registration of, performance under, or otherwise with
respect to, this Agreement, the Notes or the other Loan Documents
(hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender Party
and each Agent for and hold them harmless against the full amount
of Taxes and Other Taxes, and for the full amount of taxes of any
kind imposed by any jurisdiction on amounts payable under this
Section 2.12, imposed on or paid by such Lender Party or such
Agent (as the case may be) and any liability (including
penalties, additions to tax, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be
made within 30 days from the date such Lender Party or such Agent
(as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of
Taxes, the Borrower shall furnish to the Administrative Agent, at
its address referred to in Section 9.02, the original or a
certified copy of a receipt evidencing such payment. In the case
of any payment hereunder or under the Notes by or on behalf of
the Borrower through an account or branch outside the United
States or by or on behalf of the Borrower by a payor that is not
a United States person, if the Borrower determine that no Taxes
are payable in respect thereof, the Borrower shall furnish, or
shall cause such payor to furnish, to the Administrative Agent,
at such address, an opinion of counsel acceptable to the
Administrative Agent stating that such payment is exempt from
Taxes. For purposes of subsections (d) and (e) of this
Section 2.12, the terms "United States" and "United States
person" shall have the meanings specified in Section 7701 of the
Internal Revenue Code.
(e) Each Lender Party organized under the laws of a
jurisdiction outside the United States shall, on or prior to the
date of its execution and delivery of this Agreement in the case
of each Initial Lender or Initial Issuing Bank, as the case may
be, and on the date of the Assignment and Acceptance pursuant to
which it becomes a Lender Party in the case of each other Lender
Party, and from time to time thereafter as requested in writing
by the Borrower (but only so long thereafter as such Lender Party
remains lawfully able to do so), provide each of the
Administrative Agent and the Borrower with two original Internal
Revenue Service forms 1001 or 4224, as appropriate, or any
successor or other form prescribed by the Internal Revenue
Service, certifying that such Lender Party is exempt from or
entitled to a reduced rate of United States withholding tax on
payments pursuant to this Agreement or the Notes. If the forms
provided by a Lender Party at the time such Lender Party first
becomes a party to this Agreement indicate a United States
interest withholding tax rate in excess of zero, withholding tax
at such rate shall be considered excluded from Taxes unless and
until such Lender Party provides the appropriate forms certifying
that a lesser rate applies, whereupon withholding tax at such
lesser rate only shall be considered excluded from Taxes for
periods governed by such forms; provided, however, that if, at
the effective date of the Assignment and Acceptance pursuant to
which a Lender Party becomes a party to this Agreement, the
Lender Party assignor was entitled to payments under
subsection (a) of this Section 2.12 in respect of United States
withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender Party assignee
on such date. If any form or document referred to in this
subsection (e) requires the disclosure of information, other than
information necessary to compute the tax payable and information
required on the date hereof by Internal Revenue Service form 1001
or 4224, that the Lender Party reasonably considers to be
confidential, the Lender Party shall give notice thereof to the
Borrower and shall not be obligated to include in such form or
document such confidential information.
(f) For any period with respect to which a Lender
Party has failed to provide the Borrower with the appropriate
form described in subsection (e) above (other than if such
failure is due to a change in law occurring after the date on
which a form originally was required to be provided or if such
form otherwise is not required under subsection (e) above), such
Lender Party shall not be entitled to indemnification under
subsection (a) or (c) of this Section 2.12 with respect to Taxes
imposed by the United States by reason of such failure; provided,
however, that should a Lender Party become subject to Taxes
because of its failure to deliver a form required hereunder, the
Borrower shall take such steps as such Lender Party shall
reasonably request to assist such Lender Party to recover such
Taxes.
SECTION 2.13 Sharing of Payments, Etc
. If any Lender Party shall obtain at any time any
payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise, other than as a result of an
assignment pursuant to Section 9.07) (a) on account of
Obligations due and payable to such Lender Party hereunder and
under the Notes at such time in excess of its ratable share
(according to the proportion of (i) the amount of such
Obligations due and payable to such Lender Party at such time to
(ii) the aggregate amount of the Obligations due and payable to
all Lender Parties hereunder and under the Notes at such time) of
payments on account of the Obligations due and payable to all
Lender Parties hereunder and under the Notes at such time
obtained by all the Lender Parties at such time or (b) on account
of Obligations owing (but not due and payable) to such Lender
Party hereunder and under the Notes at such time in excess of its
ratable share (according to the proportion of (i) the amount of
such Obligations owing to such Lender Party at such time to
(ii) the aggregate amount of the Obligations owing (but not due
and payable) to all Lender Parties hereunder and under the Notes
at such time) of payments on account of the Obligations owing
(but not due and payable) to all Lender Parties hereunder and
under the Notes at such time obtained by all of the Lender
Parties at such time, such Lender Party shall forthwith purchase
from the other Lender Parties such interests or participating
interests in the Obligations due and payable or owing to them, as
the case may be, as shall be necessary to cause such purchasing
Lender Party to share the excess payment ratably with each of
them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing
Lender Party, such purchase from each other Lender Party shall be
rescinded and such other Lender Party shall repay to the
purchasing Lender Party the purchase price to the extent of such
Lender Party's ratable share (according to the proportion of
(i) the purchase price paid to such Lender Party to (ii) the
aggregate purchase price paid to all Lender Parties) of such
recovery together with an amount equal to such Lender Party's
ratable share (according to the proportion of (i) the amount of
such other Lender Party's required repayment to (ii) the total
amount so recovered from the purchasing Lender Party) of any
interest or other amount paid or payable by the purchasing Lender
Party in respect of the total amount so recovered. The Borrower
agrees that any Lender Party so purchasing a participation from
another Lender Party pursuant to this Section 2.13 may, to the
fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such
participation as fully as if such Lender Party were the direct
creditor of the Borrower in the amount of such participation.
SECTION 2.14 Use of Proceeds
. The proceeds of the Advances and issuances of
Letters of Credit shall be available (and the Borrower agrees
that it shall use such proceeds and Letters of Credit) solely to
(i) repay the Receivables Program and the Pre-Petition 2000
Credit Agreement, (ii) provide working capital for the Borrower
and its Subsidiaries, (iii) to make the payment permitted by the
proviso in Section 5.02(j), and (iv) to make other expenditures
as may be authorized and approved by an order to the Bankruptcy
Court as reasonable, necessary costs and expenses of preserving
or disposing of the properties and interests in property of the
Borrower and its Subsidiaries (other than Non-Filing
Subsidiaries) including, without limitation, the fees and
expenses of Borrower's Professionals but not in excess of the
Carve-Out; provided further that no amounts shall be paid
pursuant to this Section 2.14(iii) for fees and disbursements
incurred by the Borrower in connection with any proceeding (other
than an investigation) commenced, including, without limitation,
any motion or other pleading filed to contest (a) the validity,
binding effect or enforceability of the Loan Documents, (b) any
other rights or interest of the Agent or the Lender Parties under
the Loan Documents, or (c) any payment of fees and disbursements
incurred by professionals retained or engaged by the Pre-Petition
Agent or any Pre-Petition Lenders in excess of $1,000,000 in the
aggregate.
SECTION 2.15 Defaulting Lenders
. (a) In the event that, at any one time, (i) any
Lender Party shall be a Defaulting Lender, (ii) such Defaulting
Lender shall owe a Defaulted Advance to the Borrower and
(iii) the Borrower shall be required to make any payment
hereunder or under any other Loan Document to or for the account
of such Defaulting Lender, then the Borrower may, so long as no
Default shall occur or be continuing at such time and to the
fullest extent permitted by applicable law, set off and otherwise
apply the Obligation of the Borrower to make such payment to or
for the account of such Defaulting Lender against the obligation
of such Defaulting Lender to make such Defaulted Advance. In the
event that, on any date, the Borrower shall so set off and
otherwise apply its obligation to make any such payment against
the obligation of such Defaulting Lender to make any such
Defaulted Advance on or prior to such date, the amount so set off
and otherwise applied by the Borrower shall constitute for all
purposes of this Agreement and the other Loan Documents an
Advance by such Defaulting Lender made on the date of such setoff
under the Facility pursuant to which such Defaulted Advance was
originally required to have been made pursuant to Section 2.01.
Such Advance shall be considered, for all purposes of this
Agreement, to comprise part of the Borrowing in connection with
which such Defaulted Advance was originally required to have been
made pursuant to Section 2.01, even if the other Advances
comprising such Borrowing shall be Eurodollar Rate Advances on
the date such Advance is deemed to be made pursuant to this
subsection (a). The Borrower shall notify the Administrative
Agent at any time the Borrower exercises its right of set-off
pursuant to this subsection (a) and shall set forth in such
notice (A) the name of the Defaulting Lender and the Defaulted
Advance required to be made by such Defaulting Lender and (B) the
amount set off and otherwise applied in respect of such Defaulted
Advance pursuant to this subsection (a). Any portion of such
payment otherwise required to be made by the Borrower to or for
the account of such Defaulting Lender which is paid by the
Borrower, after giving effect to the amount set off and otherwise
applied by the Borrower pursuant to this subsection (a), shall be
applied by the Administrative Agent as specified in
subsection (b) or (c) of this Section 2.15.
(b) In the event that, at any one time, (i) any Lender
Party shall be a Defaulting Lender, (ii) such Defaulting Lender
shall owe a Defaulted Amount to any Agent or any of the other
Lender Parties and (iii) the Borrower shall make any payment
hereunder or under any other Loan Document to the Administrative
Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such
other Agents or such other Lender Parties and to the fullest
extent permitted by applicable law, apply at such time the amount
so paid by the Borrower to or for the account of such Defaulting
Lender to the payment of each such Defaulted Amount to the extent
required to pay such Defaulted Amount. In the event that the
Administrative Agent shall so apply any such amount to the
payment of any such Defaulted Amount on any date, the amount so
applied by the Administrative Agent shall constitute for all
purposes of this Agreement and the other Loan Documents payment,
to such extent, of such Defaulted Amount on such date. Any such
amount so applied by the Administrative Agent shall be retained
by the Administrative Agent or distributed by the Administrative
Agent to such other Agents or such other Lender Parties, ratably
in accordance with the respective portions of such Defaulted
Amounts payable at such time to the Administrative Agent, such
other Agents and such other Lender Parties and, if the amount of
such payment made by the Borrower shall at such time be
insufficient to pay all Defaulted Amounts owing at such time to
the Administrative Agent, such other Agents and such other Lender
Parties, in the following order of priority:
(i) first, to the Agents for any Defaulted
Amounts then owing to them, in their capacities as
such, ratably in accordance with such respective
Defaulted Amounts then owing to the Agents;
(ii) second, to the Issuing Bank and the Swing
Line Bank for any Defaulted Amounts then owing to them,
in their capacities as such, ratably in accordance with
such respective Defaulted Amounts then owing to the
Issuing Bank and the Swing Line Bank; and
(iii) third, to any other Lender Parties for
any Defaulted Amounts then owing to such other Lender
Parties, ratably in accordance with such respective
Defaulted Amounts then owing to such other Lender
Parties.
Any portion of such amount paid by the Borrower for the account
of such Defaulting Lender remaining, after giving effect to the
amount applied by the Administrative Agent pursuant to this
subsection (b), shall be applied by the Administrative Agent as
specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender
Party shall be a Defaulting Lender, (ii) such Defaulting Lender
shall not owe a Defaulted Advance or a Defaulted Amount and
(iii) the Borrower, any Agent or any other Lender Party shall be
required to pay or distribute any amount hereunder or under any
other Loan Document to or for the account of such Defaulting
Lender, then the Borrower or such Agent or such other Lender
Party shall pay such amount to the Administrative Agent to be
held by the Administrative Agent, to the fullest extent permitted
by applicable law, in escrow or the Administrative Agent shall,
to the fullest extent permitted by applicable law, hold in escrow
such amount otherwise held by it. Any funds held by the
Administrative Agent in escrow under this subsection (c) shall be
deposited by the Administrative Agent in an account with a bank
(the "Escrow Bank") selected by the Administrative Agent, in the
name and under the control of the Administrative Agent, but
subject to the provisions of this subsection (c). The terms
applicable to such account, including the rate of interest
payable with respect to the credit balance of such account from
time to time, shall be the Escrow Bank's standard terms
applicable to escrow accounts maintained with it. Any interest
credited to such account from time to time shall be held by the
Administrative Agent in escrow under, and applied by the
Administrative Agent from time to time in accordance with the
provisions of, this subsection (c). The Administrative Agent
shall, to the fullest extent permitted by applicable law, apply
all funds so held in escrow from time to time to the extent
necessary to make any Advances required to be made by such
Defaulting Lender and to pay any amount payable by such
Defaulting Lender hereunder and under the other Loan Documents to
the Administrative Agent or any other Lender Party, as and when
such Advances or amounts are required to be made or paid and, if
the amount so held in escrow shall at any time be insufficient to
make and pay all such Advances and amounts required to be made or
paid at such time, in the following order of priority:
(i) first, to the Agents for any amounts then due
and payable by such Defaulting Lender to them
hereunder, in their capacities as such, ratably in
accordance with such amounts then due and payable to
the Agents;
(ii) second, to the Issuing Bank and the Swing
Line Bank for any amounts then due and payable to them
hereunder, in their capacities as such, by such
Defaulting Lender, ratably in accordance with such
amounts then due and payable to the Issuing Bank and
the Swing Line Bank;
(iii) third, to any other Lender Parties for
any amount then due and payable by such Defaulting
Lender to such other Lender Parties hereunder, ratably
in accordance with such respective amounts then due and
payable to such other Lender Parties; and
(iv) fourth, to the Borrower for any Advance then
required to be made by such Defaulting Lender to the
Borrower pursuant to a Commitment of such Defaulting
Lender.
In the event that any Lender Party that is a Defaulting
Lender shall, at any time, cease to be a Defaulting Lender, any
funds held by the Administrative Agent in escrow at such time
with respect to such Lender Party shall be distributed by the
Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at
such time under this Agreement and the other Loan Documents
ratably in accordance with the respective amounts of such
Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting
Lender under this Section 2.15 are in addition to other rights
and remedies that the Borrower may have against such Defaulting
Lender with respect to any Defaulted Advance and that any Agent
or any Lender Party may have against such Defaulting Lender with
respect to any Defaulted Amount.
SECTION 2.16 Evidence of Debt
. (a) Each Lender Party shall maintain in accordance
with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender Party resulting from
each Advance owing to such Lender Party from time to time,
including the amounts of principal and interest payable and paid
to such Lender Party from time to time hereunder. The Borrower
agrees that upon notice by any Lender Party to the Borrower (with
a copy of such notice to the Administrative Agent) to the effect
that a promissory note or other evidence of indebtedness is
required or appropriate in order for such Lender Party to
evidence (whether for purposes of pledge, enforcement or
otherwise) the Advances owing to, or to be made by, such Lender
Party, the Borrower shall promptly execute and deliver to such
Lender Party, with a copy to the Administrative Agent, a Note in
substantially the form of Exhibit A hereto, payable to the order
of such Lender Party in a principal amount equal to the Working
Capital Commitment of such Lender Party. All references to Notes
in the Loan Documents shall mean Notes, if any, to the extent
issued hereunder.
(b) The Register maintained by the Administrative
Agent pursuant to Section 9.07(d) shall include a control
account, and a subsidiary account for each Lender Party, in which
accounts (taken together) shall be recorded (i) the date and
amount of each Borrowing made hereunder, the Type of Advances
comprising such Borrowing and, if appropriate, the Interest
Period applicable thereto, (ii) the terms of each Assignment and
Acceptance delivered to and accepted by it, (iii) the amount of
any principal or interest due and payable or to become due and
payable from the Borrower to each Lender Party hereunder, and
(iv) the amount of any sum received by the Administrative Agent
from the Borrower hereunder and each Lender Party's share
thereof.
(c) Entries made in good faith by the Administrative
Agent in the Register pursuant to subsection (b) above, and by
each Lender Party in its account or accounts pursuant to
subsection (a) above, shall be prima facie evidence of the amount
of principal and interest due and payable or to become due and
payable from the Borrower to, in the case of the Register, each
Lender Party and, in the case of such account or accounts, such
Lender Party, under this Agreement, absent manifest error;
provided, however, that the failure of the Administrative Agent
or such Lender Party to make an entry, or any finding that an
entry is incorrect, in the Register or such account or accounts
shall not limit or otherwise affect the obligations of the
Borrower under this Agreement.
ARTICLE 3
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01 Conditions Precedent to Initial Extension of
Credit
. The obligation of each Lender to make an Advance or
of the Issuing Bank to issue a Letter of Credit on the occasion
of the Initial Extension of Credit hereunder is subject to the
satisfaction of the following conditions precedent before or
concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or
before the day of the Initial Extension of Credit the following,
each dated such day (unless otherwise specified), in form and
substance satisfactory to the Administrative Agent (unless
otherwise specified) and (except for the Notes) in sufficient
copies for each Lender Party:
(i) A certified copy of an order of the
Bankruptcy Court in substantially the form of Exhibit G
(including the Intercreditor Arrangement annexed as an
exhibit thereto) (the "Interim Order") and the Interim
Order shall be in full force and effect and shall not
have been vacated, reversed, modified or amended and
there shall be no stay of the performance of any
obligation of the Borrower or any of the Loan Parties.
The parties hereto acknowledge that the foregoing shall
not preclude the entry of any order of the Bankruptcy
Court approving or authorizing an amendment or
modification of this Agreement or any other Loan
Document or the Interim Order permitted by Section 9.01
which amendment of modification shall be acceptable to
the Lenders whose consent is required to approve such
amendment or modification under Section 9.01.
(ii) The Notes payable to the order of the Lenders
to the extent requested in accordance with Section
2.16.
(iii) A security agreement in substantially
the form of Exhibit D hereto (together with each other
security agreement and security agreement supplement
delivered pursuant to Section 5.01(j), in each case as
amended, the "Security Agreement"), duly executed by
each Loan Party, together with:
(A) certificates representing the Pledged
Shares referred to therein accompanied by undated
stock powers executed in blank and instruments
evidencing the Pledged Debt indorsed in blank,
(B) acknowledgment copies of proper
financing statements, duly filed on or before the
day of the Initial Extension of Credit under the
Uniform Commercial Code of all jurisdictions that
the Administrative Agent may deem necessary or
desirable in order to perfect and protect the
first priority liens and security interests
created under the Security Agreement, covering the
Collateral described in the Security Agreement,
(C) completed requests for information,
dated on or before the date of the Initial
Extension of Credit, listing the financing
statements referred to in clause (B) above and all
other effective financing statements filed in the
jurisdictions referred to in clause (B) above that
name any Loan Party as debtor, together with
copies of such other financing statements,
(D) the Intellectual Property Security
Agreement duly executed by each Loan Party,
(E) evidence of the completion of all other
recordings and filings of or with respect to the
Security Agreement that the Administrative Agent
may deem necessary or desirable in order to
perfect and protect the security interest created
thereunder,
(F) evidence of the insurance required by
the terms of the Security Agreement,
(G) copies of the Assigned Agreements
referred to in the Security Agreement, together
with a consent to such assignment, in
substantially the form of Exhibit B to the
Security Agreement, duly executed by each party to
such Assigned Agreements other than the Loan
Parties,
(H) evidence that all other action that the
Administrative Agent may deem necessary or
desirable in order to perfect and protect the
first priority liens and security interests
created under the Security Agreement has been
taken (including, without limitation, receipt of
duly executed payoff letters, UCC-3 termination
statements and landlords' and bailees' waiver and
consent agreements).
(iv) A guaranty in substantially the form of
Exhibit E hereto (together with each other guaranty and
guaranty supplement delivered pursuant to
Section 5.01(j), in each case as amended, the
"Subsidiary Guaranty"), duly executed by each
Subsidiary Guarantor.
(v) Certified copies of the resolutions of the
Board of Directors of each Loan Party approving the
transactions contemplated by the Transaction Documents
and each Transaction Document to which it is or is to
be a party, and of all documents evidencing other
necessary corporate or other action and governmental
and other third party approvals and consents, if any,
with respect to the transactions contemplated by the
Transaction Documents and each Transaction Document to
which it is or is to be a party.
(vi) A copy of a certificate of the Secretary of
State of the jurisdiction of organization of each Loan
Party, dated reasonably near the date of the Initial
Extension of Credit, certifying (A) as to a true and
correct copy of the charter of such Loan Party and each
amendment thereto on file in its office and (B) that
(1) such amendments are the only amendments to such
Loan Party's charter on file in its office, (2) such
Loan Party has paid all franchise taxes to the date of
such certificate and (3) such Loan Party is duly
organized and in good standing or presently subsisting
under the laws of the State of the jurisdiction of its
organization.
(vii) A copy of a certificate of the Secretary
of State of each of the States listed on Schedule
3.01(a)(vii), dated reasonably near the date of the
Initial Extension of Credit, with respect to each Loan
Party as listed on Schedule 3.01(a)(vii), stating that
such Loan Party is duly qualified and in good standing
as a foreign corporation and has filed all annual
reports required to be filed to the date of such
certificate.
(viii) A certificate of each Loan Party, signed
on behalf of such Loan Party by its President or a Vice
President and its Secretary or any Assistant Secretary,
dated the date of the Initial Extension of Credit (the
statements made in which certificate shall be true on
and as of the date of the Initial Extension of Credit),
certifying as to (A) the absence of any amendments to
the charter of such Loan Party since the date of the
Secretary of State's certificate referred to in
Section 3.01(a)(vi), (B) a true and correct copy of the
bylaws of such Loan Party as in effect on the date on
which the resolutions referred to in Section 3.01(a)(v)
were adopted and on the date of the Initial Extension
of Credit, (C) the due incorporation and good standing
or valid existence of such Loan Party under the laws of
the jurisdiction of its organization, and the absence
of any proceeding for the dissolution or liquidation of
such Loan Party (D) the truth of the representations
and warranties contained in the Loan Documents as
though made on and as of the date of the Initial
Extension of Credit and (E) the absence of any event
occurring and continuing, or resulting from the Initial
Extension of Credit, that constitutes a Default.
(ix) A certificate of the Secretary or an
Assistant Secretary of each Loan Party certifying the
names and true signatures of the officers of such Loan
Party authorized to sign each Transaction Document to
which it is or is to be a party and the other documents
to be delivered hereunder and thereunder.
(x) Certified copies of each of the Related
Documents, duly executed by the parties thereto and in
form and substance satisfactory to the Lender Parties,
together with all agreements, instruments and other
documents delivered in connection therewith as the
Administrative Agent shall request.
(xi) Such financial, business and other
information regarding each Loan Party and its
Subsidiaries as the Lender Parties shall have
requested, including, without limitation, information
as to possible contingent liabilities, tax matters,
environmental matters, obligations under Plans,
Multiemployer Plans and Welfare Plans, collective
bargaining agreements and other arrangements with
employees, unaudited annual financial statements dated
January 31, 2000, interim monthly financial statements
through the end of April 30, 2000, pro forma financial
statements as to the Parent Guarantor and forecasts
prepared by management of the Parent Guarantor, in form
and substance satisfactory to the Lender Parties, of
balance sheets, income statements and cash flow
statements on a monthly basis following the day of the
Initial Extension of Credit through the end of Fiscal
Year 2000 and on an annual basis for each year
thereafter until the Termination Date.
(xii) A letter, in form and substance
satisfactory to the Administrative Agent, from the
Parent Guarantor to PricewaterhouseCoopers LLC, its
independent certified public accountants, advising such
accountants that the Agents and the Lender Parties have
been authorized to exercise all rights of the Parent
Guarantor to request such accountants to disclose any
and all financial statements and any other information
of any kind that they may have with respect to the
Parent Guarantor and its Subsidiaries and requesting
such accountants to comply with any reasonable request
of any Agent or any Lender Party for such information.
(xiii) Evidence of insurance naming the
Collateral Agent as additional insured and loss payee
with such responsible and reputable insurance companies
or associations, and in such amounts and covering such
risks, as is satisfactory to the Lender Parties,
including, without limitation, business interruption
insurance.
(xiv) Certified copies of each employment
agreement and other compensation arrangement in excess
of $100,000 with each executive officer of any Loan
Party or any of its Subsidiaries (the "Employment
Agreements").
(xv) A Notice of Borrowing or Notice of Issuance,
as applicable, and a Borrowing Base Certificate
relating to the Initial Extension of Credit which shall
reflect an Excess Availability in an amount not less
than $45,000,000.
(xvi) A favorable opinion of McKinney &
Stringer, counsel for the Loan Parties, in
substantially the form of Exhibit H-1 hereto and as to
such other matters as any Lender Party through the
Administrative Agent may reasonably request.
(xvii) A favorable opinion of Wright, Lindsey &
Jennings, LLP and McGlinchey & Stafford, a Professional
Limited Liability Corporation, local counsels for the
Loan Parties, each in substantially the form of
Exhibit H-2 hereto and as to such other matters as any
Lender Party through the Administrative Agent may
reasonably request.
(xviii) A favorable opinion of Jenkens &
Gilchrist, special bankruptcy counsel for the Loan
Parties, in substantially the form of Exhibit H-3
hereto and as to such other matters as any Lender Party
through the Administrative Agent may reasonably
request.
(b) All proceedings taken in connection with the
execution of this Agreement, the making of the Advances, the
issuance of any Letter of Credit, and the execution and delivery
of all other Loan Documents and all documents and papers relating
thereto shall be satisfactory to the Administrative Agent and its
counsel. The Administrative Agent and its counsel shall have
received copies of such documents and papers as the
Administrative Agent or its counsel may reasonably request in
connection therewith, in all form and substance satisfactory to
the Administrative Agent and its counsel.
(c) The First Day Orders shall be reasonably
satisfactory in form and substance to the Administrative Agent,
including, without limitation, (i) an order providing for the
continuation of the pre-Filing Date cash management system of the
Borrower and the Guarantors with Citibank, N.A., as modified in
accordance with the terms of this Agreement, (ii) an order
terminating the Receivables Program and authorizing the transfer
of ownership of the Receivables under the Receivables Program to
the Borrower free and clear of any and all Liens, (iii) an order
authorizing the purchase and sale of Receivables pursuant to the
Credit Card Program, and (iv) an order transferring any Lien
granted in connection with the Pre-Petition 2000 Credit Agreement
to the Collateral Agent for the ratable benefit of the Secured
Parties.
(d) The Lender Parties shall be satisfied with the
legal structure and capitalization of each Loan Party and each of
its Subsidiaries the capital stock of which Subsidiaries is being
pledged pursuant to the Loan Documents, including the terms and
conditions of the charter, bylaws and each class of capital stock
or other equity interest of each Loan Party and each such
Subsidiary and of each agreement or instrument relating to such
structure or capitalization.
(e) The Lender Parties shall be satisfied that all
Existing Debt, other than the Debt identified on Schedule 4.01(t)
hereto (the "Surviving Debt"), has been prepaid, redeemed or
defeased in full or otherwise satisfied and extinguished and all
commitments relating thereto terminated and that all such
Surviving Debt shall be on terms and conditions reasonably
satisfactory to the Lender Parties.
(f) Before giving effect to the transactions
contemplated by the Transaction Documents and except as disclosed
in the Parent Guarantor's annual report on Form 10-K for the
Fiscal Year ended January 31, 2000 or otherwise disclosed to the
Lender Parties in writing prior to the date hereof, there shall
have occurred no Material Adverse Change since February 1, 2000
(other than the commencement of the Cases).
(g) There shall exist no action, suit, investigation,
litigation or proceeding affecting any Loan Party or any of its
Subsidiaries pending or threatened before any Governmental
Authority, that (i) would be reasonably likely to have a Material
Adverse Effect other than the matters described on
Schedule 4.01(f) hereto (the "Disclosed Litigation") and the
commencement of the Cases or (ii) purports to affect the
legality, validity or enforceability of any Transaction Document
or the consummation of the transactions contemplated by the
Transaction Documents, and there shall have been no adverse
change in the status, or financial effect on any Loan Party or
any of its Subsidiaries, of the Disclosed Litigation from that
described on Schedule 4.01(f) hereto.
(h) All Governmental Authorizations and third party
consents and approvals necessary in connection with the
transactions contemplated by the Transaction Documents shall have
been obtained (without the imposition of any conditions that are
not acceptable to the Lender Parties) and shall remain in effect;
and no law or regulation shall be applicable in the judgment of
the Lender Parties, in each case that restrains, prevents or
imposes materially adverse conditions upon the transactions
contemplated by the Transaction Documents or the rights of the
Loan Parties or their Subsidiaries freely to transfer or
otherwise dispose of, or to create any Lien on, any properties
now owned or hereafter acquired by any of them other than the
entry by the Bankruptcy Court of the Interim Order or the Final
Order, as applicable.
(i) The Lender Parties shall have completed a due
diligence investigation of the Loan Parties and their
Subsidiaries in scope (including, without limitation, a field
examination and third party appraisal of inventory), and with
results, satisfactory to the Lender Parties, and nothing shall
have come to the attention of the Lender Parties during the
course of such due diligence investigation to lead them to
believe that the Information Memorandum was or has become
misleading, incorrect or incomplete in any material respect;
without limiting the generality of the foregoing, the Lender
Parties shall have been given such access to the management,
records, books of account, contracts and properties of the Parent
Guarantor and its Subsidiaries as they shall have requested.
(j) The Borrower shall have paid all accrued fees of
the Agents and the Lender Parties and all reasonable accrued
expenses of the Agents (including the reasonable accrued fees and
expenses of counsel to the Administrative Agent and local counsel
to the Lender Parties).
(k) The Lender Parties shall be satisfied with the
Parent Guarantor's and the Borrower's management.
(l) No objection shall have been filed to the entry of
the Interim Order by the Pre-Petition Agent or any Pre-Petition
Lender.
(m) All obligations under the Pre-Petition 2000
Agreement and the Receivables Program shall, in each case, be
repaid and satisfied in full by the initial Borrowing hereunder.
SECTION 3.02 Conditions Precedent to Each Borrowing, Issuance
and Increase of Available Amount
. The obligation of each Appropriate Lender to make an
Advance (other than a Letter of Credit Advance made by the
Issuing Bank or a Working Capital Lender pursuant to
Section 2.03(c) and a Swing Line Advance made by a Working
Capital Lender pursuant to Section 2.02(b)) on the occasion of
each Borrowing (including the initial Borrowing) and the
obligation of the Issuing Bank to issue a Letter of Credit
(including the initial issuance), renew a Letter of Credit, the
right of the Borrower to request a Swing Line Borrowing shall be
subject to the further conditions precedent that on the date of
such Borrowing, issuance, renewal or increase (a) the following
statements shall be true (and each of the giving of the
applicable Notice of Borrowing, Notice of Swing Line Borrowing,
Notice of Issuance, Notice of Renewal, or request for increase in
Available Amount and the acceptance by the Borrower of the
proceeds of such Borrowing or of such Letter of Credit or the
renewal of such Letter of Credit shall constitute a
representation and warranty by the Borrower that both on the date
of such notice and on the date of such Borrowing, issuance,
renewal or increase such statements are true):
(i) the representations and warranties contained
in each Loan Document are correct on and as of such
date, before and after giving effect to such Borrowing,
issuance, renewal or increase and to the application of
the proceeds therefrom, as though made on and as of
such date other than any such representations or
warranties that, by their terms, refer to a specific
date other than the date of such Borrowing, issuance,
renewal or increase, in which case as of such specific
date;
(ii) no Default has occurred and is continuing, or
would result from such Borrowing, issuance, renewal or
increase or from the application of the proceeds
therefrom; and
(iii) for each Term Advance, Working Capital
Advance or Swing Line Advance made by the Swing Line
Bank or issuance or renewal of any Letter of Credit,
(A) the sum of the Loan Values of the Eligible
Collateral minus the Reserve Amount exceeds (B) the
aggregate principal amount of the Term Advances plus
Working Capital Advances plus Swing Line Advances plus
Letter of Credit Advances to be outstanding plus the
aggregate Available Amount of all Letters of Credit to
be outstanding after giving effect to such Advance,
issuance, renewal or increase, respectively;
(b) the Interim Order shall be in full force and
effect and shall not have been vacated, reversed, modified or
amended and there shall be no stay of the performance of any
obligation of the Borrower or any of the Loan Parties, provided
that if at the time of any Borrowing or the issuance of any
Letter of Credit the aggregate amount of either of which, when
added to the sum of the principal amount of all Advances then
outstanding plus the aggregate Available Amount under all Letters
of Credit (assuming compliance with all conditions to drawing),
would exceed such amount authorized by the Bankruptcy Court in
the Interim Order (collectively, the "Additional Credit"), the
Administrative Agent and each of the Lender Parties shall have
received a certified copy of an order of the Bankruptcy Court in
substantially the form of Exhibit G-2 (the "Final Order") and at
the time of the extension of the Additional Credit the Final
Order shall be in full force and effect, and shall not have been
vacated, reversed, modified, amended and there shall be no stay
of the performance of any obligation of the Borrower or any of
the Loan Parties (the parties hereto acknowledge that the
foregoing shall not preclude the entry of any order of the
Bankruptcy Court approving or authorizing an amendment or
modification of this Agreement or any other Loan Document or the
Interim Order permitted by Section 9.01 which amendment or
modification shall be acceptable to the Lenders whose consent is
required to approve such amendment or modification under Section
9.01); and
(c) the Administrative Agent shall have received such
other approvals, opinions or documents as any Appropriate Lender
through the Administrative Agent may reasonably request.
SECTION 3.03 Conditions Precedent to each Working Capital
Borrowing, Issuance and Increase of Available Amount,
. The obligations of each Working Capital Lender to
make an Advance (other than a Letter of Credit Advance made by
the Issuing Bank or a Working Capital Lender pursuant to
Section 2.03(c) and a Swing Line Advance made by a Working
Capital Lender pursuant to Section 2.02(b)) on the occasion of
each Borrowing (including the initial Borrowing) and the
obligation of the Issuing Bank to issue a Letter of Credit
(including the initial issuance), renew a Letter of Credit, the
right of the Borrower to request a Swing Line Borrowing shall be
subject to the further condition precedent that on the date of
such Borrowing, issuance, renewal or increase there shall be no
unused Term Commitments.
SECTION 3.04 Determinations Under Section 3.01
. For purposes of determining compliance with the
conditions specified in Section 3.01, each Lender Party shall be
deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder
to be consented to or approved by or acceptable or satisfactory
to the Lender Parties unless an officer of the Administrative
Agent responsible for the transactions contemplated by the Loan
Documents shall have received notice from such Lender Party prior
to the Initial Extension of Credit specifying its objection
thereto and if the Initial Extension of Credit consists of a
Borrowing, such Lender Party shall not have made available to the
Administrative Agent such Lender Party's ratable portion of such
Borrowing.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties of the Borrower and
the Parent Guarantor
. The Borrower and the Parent Guarantor represents and
warrants as follows:
(a) Each Loan Party and each of its Subsidiaries
(i) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (ii) is
duly qualified as a foreign corporation, foreign limited
liability company or foreign limited partnership, as the case may
be, and in good standing in each other jurisdiction in which it
owns or leases property or in which the conduct of its business
requires it to so qualify or be licensed except where the failure
to qualify or be licensed would not be reasonably likely to have
a Material Adverse Effect and (iii) has all requisite power and
authority (including, without limitation, all Governmental
Authorizations) to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be
conducted.
(b) Set forth on Schedule 4.01(b) hereto is a complete
and accurate list of all Subsidiaries of each Loan Party, showing
as of the date hereof (as to each such Subsidiary) the
jurisdiction of its organization, the number of shares of each
class of capital stock authorized, and the number outstanding, on
the date hereof and the percentage of the outstanding shares of
each such class owned (directly or indirectly) by such Loan Party
and the number of shares covered by all outstanding options,
warrants, rights of conversion or purchase and similar rights at
the date hereof. All of the outstanding capital stock of all of
each Loan Party's Subsidiaries have been validly issued, is fully
paid and non-assessable and is owned by such Loan Party or one or
more of its Subsidiaries free and clear of all Liens, except
those created under the Collateral Documents and Liens permitted
under Section 5.01(a).
(c) The execution, delivery and performance by each
Loan Party of each Transaction Document to which it is or is to
be a party, and the consummation of the transactions contemplated
by the Transaction Documents, are within such Loan Party's
powers, have been duly authorized by all necessary corporate or
other action and are authorized by the Interim Order or the Final
Order, as applicable, and do not (i) contravene such Loan Party's
charter or bylaws, (ii) violate any law, rule, regulation
(including, without limitation, Regulation X of the Board of
Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination or award, (iii) conflict with
or result in the breach of, or constitute a default or require
any payment to be made under, any contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument
binding on or affecting any Loan Party, any of its Subsidiaries
or any of their properties entered into after the Filing Date, or
(iv) except for the Liens created under the Loan Documents, the
Interim Order, and the Final Order, result in or require the
creation or imposition of any Lien upon or with respect to any of
the properties of any Loan Party or any of its Subsidiaries. No
Loan Party or any of its Subsidiaries is in violation of any such
law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award or in breach of any such contract, loan
agreement, indenture, mortgage, deed of trust, lease or other
instrument, the violation or breach of which could be reasonably
likely to have a Material Adverse Effect.
(d) No Governmental Authorization, and no notice to or
filing with, any Governmental Authority or any other third party
is required for (i) the due execution, delivery, recordation,
filing or performance by any Loan Party of any Transaction
Document to which it is or is to be a party, or for the
consummation of the transactions contemplated by the Transaction
Documents, (ii) the grant by any Loan Party of the Liens granted
by it pursuant to the Collateral Documents, (iii) the perfection
or maintenance of the Liens created under the Collateral
Documents (including the first priority nature thereof) or
(iv) the exercise by any Agent or any Lender Party of its rights
under the Loan Documents or the remedies in respect of the
Collateral pursuant to the Collateral Documents, except for (x)
the entry by the Bankruptcy Court of the Interim Order or the
Final Order, as applicable, and (y) the authorizations,
approvals, actions, notices and filings listed on
Schedule 4.01(d) hereto, all of which have been duly obtained,
taken, given or made and are in full force and effect.
(e) This Agreement has been, and each other
Transaction Document when delivered hereunder will have been,
duly executed and delivered by each Loan Party party thereto.
This Agreement is, and each other Transaction Document when
delivered hereunder will be, the legal, valid and binding
obligation of each Loan Party party thereto, enforceable against
such Loan Party in accordance with its terms and the Interim
Order or the Final Order as applicable.
(f) There is no action, suit, investigation,
litigation or proceeding affecting any Loan Party or any of its
Subsidiaries, including any Environmental Action, pending or
threatened before any Governmental Authority that (i) would be
reasonably likely to have a Material Adverse Effect (other than
the Disclosed Litigation) or (ii) purports to affect the
legality, validity or enforceability of any Transaction Document
or the consummation of the transactions contemplated by the
Transaction Documents other than the Interim Order and the Final
Order, and there has been no adverse change in the status, or
financial effect on any Loan Party or any of its Subsidiaries, of
the Disclosed Litigation from that described on Schedule 4.01(f)
hereto.
(g) The Consolidated balance sheets of the Parent
Guarantor and its Subsidiaries as at January 31, 2000, and the
related Consolidated statements of income and Consolidated
statement of cash flows of the Parent Guarantor and its
Subsidiaries for the fiscal year then ended, prepared by
management of the Parent Guarantor, and the Consolidated and
Consolidating balance sheets of the Parent Guarantor and its
Subsidiaries as at April 30, 2000, and the related Consolidated
and Consolidating statements of income and Consolidated statement
of cash flows of the Parent Guarantor and its Subsidiaries for
the three months then ended, duly certified by the principal
financial officer of the Parent Guarantor, copies of which have
been furnished to each Lender Party, fairly present, subject, in
the case of said balance sheet as at April 30, 2000, and said
statements of income and cash flows for the three months then
ended, to year-end audit adjustments, the Consolidated and
Consolidating financial condition of the Parent Guarantor and its
Subsidiaries as at such dates and the Consolidated and
Consolidating results of operations of the Parent Guarantor and
its Subsidiaries for the periods ended on such dates, all in
accordance with generally accepted accounting principles applied
on a consistent basis, and, except as disclosed to the Lender
Parties in writing prior to the date hereof, since February 1,
2000, there has been no Material Adverse Change (other than the
commencement of the Cases).
(h) Intentionally Omitted.
(i) The Consolidated and Consolidating forecasted
balance sheets, statements of income and statements of cash flows
of the Parent Guarantor and its Subsidiaries delivered to the
Lender Parties pursuant to Section 3.01(a)(xi) or 5.03 were
prepared in good faith on the basis of the assumptions stated
therein, which assumptions were fair in light of the conditions
existing at the time of delivery of such forecasts, and
represented, at the time of delivery, the Parent Guarantor's best
estimate of its future financial performance.
(j) Neither the Information Memorandum nor any other
information, exhibit or report furnished by or on behalf of any
Loan Party to any Agent or any Lender Party (whether or not in
writing) in connection with the negotiation and syndication of
the Loan Documents or pursuant to the terms of the Loan Documents
contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements made
therein not misleading as of the date such information was
furnished and on the date of the Initial Extension of Credit.
(k) No Loan Party is engaged in the business of
extending credit for the purpose of purchasing or carrying Margin
Stock, and no proceeds of any Advance or drawings under any
Letter of Credit will be used to purchase or carry any Margin
Stock or to extend credit to others for the purpose of purchasing
or carrying any Margin Stock.
(l) Neither any Loan Party nor any of its Subsidiaries
is an "investment company," or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the Investment Company Act
of 1940, as amended. Neither any Loan Party nor any of its
Subsidiaries is a "holding company", or a "subsidiary company" of
a "holding company", or an "affiliate" of a "holding company" or
of a "subsidiary company" or a "holding company", as such terms
are defined in the Public Utility Holding Company Act of 1935, as
amended. Neither the making of any Advances, nor the issuance of
any Letters of Credit, nor the application of the proceeds or
repayment thereof by the Borrower, nor the consummation of the
other transactions contemplated by the Transaction Documents,
will violate any provision of any such Act or any rule,
regulation or order of the Securities and Exchange Commission
thereunder.
(m) Neither any Loan Party nor any of its Subsidiaries
is a party to any indenture, loan or credit agreement or any
lease or other agreement or instrument or subject to any charter
or corporate restriction that would be reasonably likely to have
a Material Adverse Effect.
(n) Each of the Interim Order and the Final Order, as
applicable, creates in favor of the Collateral Agent for the
benefit of the Secured Parties, a legal, valid and enforceable
security interest in the Collateral and each of the Interim Order
and the Final Order, as applicable, constitutes the creation of a
fully perfected first priority lien on, and security interest in,
all right, title and interest of the grantors thereunder in such
Collateral in each case prior and superior in right to any
Person, except as otherwise provided in the Interim Order and the
Final Order, as applicable. The Loan Parties are the legal and
beneficial owners of the Collateral free and clear of any Lien,
except for the liens and security interests created or permitted
under the Loan Documents, the Interim Order and the Final Order.
(o) (i) No ERISA Event has occurred or is reasonably
expected to occur with respect to any Plan.
(ii) Neither any Loan Party nor any ERISA
Affiliate has incurred or is reasonably expected to incur any
Withdrawal Liability to any Multiemployer Plan.
(iii) Neither any Loan Party nor any ERISA
Affiliate has been notified by the sponsor of a Multiemployer
Plan that such Multiemployer Plan is in reorganization or has
been terminated, within the meaning of Title IV of ERISA, and no
such Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of
Title IV of ERISA.
(iv) Schedule B (Actuarial Information) to the
most recent annual report (Form 5500 Series) for each Plan,
copies of which have been filed with the Internal Revenue Service
and furnished to the Lender Parties, is complete and accurate and
fairly presents the funding status of such Plan, and since the
date of such Schedule B there has been no material adverse change
in such funding status.
(p) (i) The operations and properties of each Loan
Party and each of its Subsidiaries comply in all material
respects with all applicable Environmental Laws and Environmental
Permits, all past non-compliance with such Environmental Laws and
Environmental Permits has been resolved without ongoing
obligations or costs, and no circumstances exist that would be
reasonably likely to (A) form the basis of an Environmental
Action against any Loan Party or any of its Subsidiaries or any
of their properties that could have a Material Adverse Effect or
(B) cause any such property to be subject to any restrictions on
ownership, occupancy, use or transferability under any
Environmental Law.
(ii) To the best of the Borrower's knowledge, none
of the properties currently or formerly owned or operated by any
Loan Party or any of its Subsidiaries is listed or proposed for
listing on the NPL or on the CERCLIS or any analogous foreign,
state or local list or is adjacent to any such property; there
are no and never have been any underground or aboveground storage
tanks or any surface impoundments, septic tanks, pits, sumps or
lagoons in which Hazardous Materials are being or have been
treated, stored or disposed on any property currently owned or
operated by any Loan Party or any of its Subsidiaries or, to the
best of its knowledge, on any property formerly owned or operated
by any Loan Party or any of its Subsidiaries; there is no
asbestos or asbestos-containing material on any property
currently owned or operated by any Loan Party or any of its
Subsidiaries; and to the best of the Borrower's knowledge,
Hazardous Materials have not been released, discharged or
disposed of on any property currently or formerly owned or
operated by any Loan Party or any of its Subsidiaries in
violation of Environmental Laws except, in each case, where non-
compliance with the foregoing is not reasonably likely to have a
Material Adverse Effect.
(iii) Neither any Loan Party nor any of its
Subsidiaries is undertaking, and has not completed, either
individually or together with other potentially responsible
parties, any investigation or assessment or remedial or response
action relating to any actual or threatened release, discharge or
disposal of Hazardous Materials in violation of Environmental
Laws at any site, location or operation, either voluntarily or
pursuant to the order of any governmental or regulatory authority
or the requirements of any Environmental Law; and all Hazardous
Materials generated, used, treated, handled or stored at, or
transported to or from, any property currently or formerly owned
or operated by any Loan Party or any of its Subsidiaries have
been disposed of in a manner not reasonably expected to result in
material liability to any Loan Party or any of its Subsidiaries.
(q) (i) Each Loan Party and each of its Subsidiaries
and Affiliates has filed, has caused to be filed or has been
included in all tax returns (Federal, state, local and foreign)
required to be filed and has paid all taxes shown thereon to be
due, together with applicable interest and penalties, except (i)
to the extent prohibited by the Bankruptcy Code in connection
with the Cases or (ii) where being contested in good faith and by
proper proceedings and as to which appropriate reserves are being
maintained.
(ii) Set forth on Schedule 4.01(q) hereto is a
complete and accurate list, as of the date hereof, of each
taxable year of each Loan Party and each of its Subsidiaries and
Affiliates for which Federal income tax returns have been filed
and for which the expiration of the applicable statute of
limitations for assessment or collection has not occurred by
reason of extension or otherwise (an "Open Year").
(iii) The aggregate unpaid amount, as of the
date hereof, of adjustments to the Federal income tax liability
of each Loan Party and each of its Subsidiaries and Affiliates
proposed by the Internal Revenue Service with respect to Open
Years does not exceed $500,000. No issues have been raised by
the Internal Revenue Service in respect of Open Years that, in
the aggregate, would be reasonably likely to have a Material
Adverse Effect.
(iv) The aggregate unpaid amount, as of the date
hereof, of adjustments to the state, local and foreign tax
liability of each Loan Party and its Subsidiaries and Affiliates
proposed by all state, local and foreign taxing authorities
(other than amounts arising from adjustments to Federal income
tax returns) does not exceed $250,000. No issues have been
raised by such taxing authorities that, in the aggregate, would
be reasonably likely to have a Material Adverse Effect.
(r) Neither the business nor the properties of any
Loan Party or any of its Subsidiaries are affected by any fire,
explosion, accident, strike, lockout or other labor dispute,
drought, storm, hail, earthquake, embargo, act of God or of the
public enemy or other casualty (whether or not covered by
insurance) that would be reasonably likely to have a Material
Adverse Effect.
(s) Set forth on Schedule 4.01(s) hereto is a complete
and accurate list of all Existing Debt separately identified by
category (e.g. trade payables, payroll, Debt for Borrowed Money
and other) incurred prior to the Filing Date. There are no
material liabilities or obligations for Debt other than (i) the
liabilities and obligations listed on Schedule 4.01(t) or (ii)
the Obligations.
(t) Set forth on Schedule 4.01(t) hereto is a complete
and accurate list of all Surviving Debt, showing as of the date
hereof the principal amount outstanding or, in the case of a
revolving credit facility, the aggregate amount of the
commitments thereunder, the maturity date thereof and the
amortization schedule therefor.
(u) Set forth on Schedule 4.01(u) hereto is a complete
and accurate list of all real property owned by any Loan Party or
any of its Subsidiaries, showing as of the date hereof the street
address, county or other relevant jurisdiction, state, record
owner and book and estimated fair value thereof. Each Loan Party
or such Subsidiary has good, marketable and insurable fee simple
title to such real property, free and clear of all Liens, other
than Liens created or permitted by the Loan Documents.
(v) Set forth on Schedule 4.01(v) hereto is a complete
and accurate list of all leases of real property under which any
Loan Party or any of its Subsidiaries is the lessee, showing as
of the date hereof the street address, county or other relevant
jurisdiction, state, lessor, lessee, expiration date and annual
rental cost thereof. Each such lease is the legal, valid and
binding obligation of the lessor thereof, enforceable in
accordance with its terms.
(w) Set forth on Schedule 4.01(w) hereto is a complete
and accurate list of all Investments (other than Receivables
arising from the Credit Card Program) held by any Loan Party or
any of its Subsidiaries on the date hereof, showing as of the
date hereof the amount, obligor or issuer and maturity, if any,
thereof.
(x) Set forth on Schedule 4.01(x) hereto is a complete
and accurate list of all patents, trademarks, trade names,
service marks and copyrights, and all applications therefor and
licenses thereof, of each Loan Party or any of its Subsidiaries,
showing as of the date hereof the jurisdiction in which
registered, the registration number, the date of registration and
the expiration date.
(y) The Parent Guarantor has, independently and
without reliance upon the Administrative Agent or any Lender
Party and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to
enter into the Parent Guaranty and each other Loan Document to
which it is or is to be a party, and the Parent Guarantor has
established adequate means of obtaining from each Loan Party on a
continuing basis information pertaining to, and is now and on a
continuing basis will be completely familiar with, the business,
condition (financial or otherwise), operations, performance,
properties and prospects of such Loan Party.
ARTICLE 5
COVENANTS OF THE BORROWER AND THE PARENT GUARANTOR
SECTION 5.01 Affirmative Covenants
. So long as any Advance or any other Obligation of
any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall
have any Commitment hereunder, the Borrower and the Parent
Guarantor will:
(a) Compliance with Laws, Etc. Comply, and cause each
of its Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders, such compliance
to include, without limitation, compliance with ERISA and the
Racketeer Influenced and Corrupt Organizations Chapter of the
Organized Crime Control Act of 1970, except, in each case, where
the non-compliance with the foregoing is not reasonably likely to
have a Material Adverse Effect; provided, however, each Loan
Party shall comply in all respects with (i) the Bankruptcy Code,
(ii) the Federal Rules of Bankruptcy Procedure and (iii) the
local rules and orders of the Bankruptcy Court.
(b) Payment of Taxes, Etc. Pay and discharge, and
cause each of its Subsidiaries to pay and discharge, before the
same shall become delinquent to the extent permitted or required
under the Bankruptcy Code and by the Bankruptcy Court, (i) all
taxes, assessments and governmental charges or levies imposed
upon it or upon its property and (ii) all lawful claims that, if
unpaid, might by law become a Lien upon its property; provided,
however, that neither the Parent Guarantor nor any of its
Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith
and by proper proceedings and as to which appropriate reserves
are being maintained, unless and until any Lien resulting
therefrom attaches to its property and becomes enforceable
against its other creditors.
(c) Compliance with Environmental Laws. Comply, and
cause each of its Subsidiaries and all lessees and other Persons
operating or occupying its properties to comply, in all material
respects, with all applicable Environmental Laws and
Environmental Permits; obtain and renew, and cause each of its
Subsidiaries to obtain and renew, all Environmental Permits
necessary for its operations and properties; and conduct, and
cause each of its Subsidiaries to conduct, any investigation,
study, sampling and testing, and undertake any cleanup, removal,
remedial or other action necessary to remove, mitigate and clean
up all Hazardous Materials from any of its properties, in
accordance with the requirements of all Environmental Laws,
except if the failure to remove or clean up such Hazardous
Materials is not reasonably likely to have a Material Adverse
Effect; provided, however, that neither the Parent Guarantor nor
any of its Subsidiaries shall be required to undertake any such
cleanup, removal, remedial or other action to the extent that its
obligation to do so is being contested in good faith and by
proper proceedings and appropriate reserves are being maintained
with respect to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause
each of its Subsidiaries to maintain, insurance with responsible
and reputable insurance companies or associations in such amounts
and covering such risks as is usually carried by companies
engaged in similar businesses and owning similar properties in
the same general areas in which the Parent Guarantor or such
Subsidiary operates.
(e) Preservation of Legal Existence, Etc. Preserve
and maintain, and cause each of its Subsidiaries to preserve and
maintain, its existence, legal structure, legal name, rights
(charter and statutory), permits, licenses, approvals, privileges
and franchises; provided, however, that the Parent Guarantor and
its Subsidiaries may consummate any merger or consolidation
permitted under Section 5.02(d) and provided further that neither
the Parent Guarantor nor any of its Subsidiaries shall be
required to preserve any right, permit, license, approval,
privilege or franchise if the Board of Directors of the Parent
Guarantor or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of the Parent Guarantor or such Subsidiary, as the case
may be, and that the loss thereof is not disadvantageous in any
material respect to the Parent Guarantor, such Subsidiary or the
Lender Parties.
(f) Visitation Rights. At any reasonable time and
from time to time, permit any of the Agents or any of the Lender
Parties or any agents or representatives thereof, to examine and
make copies of and abstracts from the records and books of
account of, and visit the properties of, the Parent Guarantor and
any of its Subsidiaries, and to discuss the affairs, finances and
accounts of the Parent Guarantor and any of its Subsidiaries with
any of their officers or directors and with their independent
certified public accountants.
(g) Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in
which full and correct entries shall be made of all financial
transactions and the assets and business of the Parent Guarantor
and each such Subsidiary in accordance with generally accepted
accounting principles in effect from time to time.
(h) Maintenance of Properties, Etc. Maintain and
preserve, and cause each of its Subsidiaries to maintain and
preserve, all of its properties that are used or useful in the
conduct of its business in good working order and condition,
ordinary wear and tear excepted.
(i) Transactions with Affiliates. Conduct, and cause
each of its Subsidiaries to conduct, all transactions otherwise
permitted under the Loan Documents with any of their Affiliates
on terms that are fair and reasonable and no less favorable to
the Parent Guarantor or such Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person not an
Affiliate; provided, however, that all transactions with
Non-Filing subsidiaries are prohibited other than the
transactions expressly permitted in Section 5.02(y).
(j) Covenant to Guarantee Obligations and Give
Security. Upon (x) the request of the Collateral Agent following
the occurrence and during the continuance of a Default, (y) the
formation or acquisition of any new direct or indirect
Subsidiaries by any Loan Party or (z) the acquisition of any
property by any Loan Party, and such property, in the judgment of
the Collateral Agent, shall not already be subject to a perfected
first priority security interest in favor of the Collateral Agent
for the benefit of the Secured Parties, then, in each case at the
Borrower's expense:
(i) in connection with the formation or
acquisition of a Subsidiary, within 10 days after such
formation or acquisition, cause each such Subsidiary,
and cause each direct and indirect parent of such
Subsidiary (if it has not already done so), to duly
execute and deliver to the Collateral Agent a guaranty
or guaranty supplement, in form and substance
satisfactory to the Collateral Agent, guaranteeing the
other Loan Parties' obligations under the Loan
Documents,
(ii) within 10 days after such request, formation
or acquisition, furnish to the Collateral Agent a
description of the real and personal properties of the
Loan Parties and their respective Subsidiaries in
detail satisfactory to the Collateral Agent,
(iii) within 15 days after such request,
formation or acquisition, duly execute and deliver, and
cause each such Subsidiary and each direct and indirect
parent of such Subsidiary (if it has not already done
so) to duly execute and deliver, to the Collateral
Agent mortgages, pledges, assignments, security
agreement supplements, intellectual property security
agreement supplements and other security agreements, as
specified by and in form and substance satisfactory to
the Collateral Agent, securing payment of all the
Obligations of the applicable Loan Party, such
Subsidiary or such parent, as the case may be, under
the Loan Documents and constituting Liens on all such
properties,
(iv) within 30 days after such request, formation
or acquisition, take, and cause each such Subsidiary
and each direct or indirect parent to take, whatever
action (including, without limitation, the recording of
mortgages, the filing of Uniform Commercial Code
financing statements and the giving of notices) may be
necessary or advisable in the opinion of the Collateral
Agent to vest in the Collateral Agent (or in any
representative of the Collateral Agent designated by
it) valid and subsisting Liens on the properties
purported to be subject to the mortgages, pledges,
assignments, security agreement supplements,
intellectual property security agreement supplements
and security agreements delivered pursuant to this
Section 5.01(j), enforceable against all third parties
in accordance with their terms,
(v) within 60 days after such request, formation
or acquisition, deliver to the Collateral Agent, upon
the request of the Collateral Agent in its reasonable
discretion, a signed copy of a favorable opinion,
addressed to the Collateral Agent and the other Secured
Parties, of counsel for the Loan Parties acceptable to
the Collateral Agent as to the matters contained in
clauses (i), (iii) and (iv) above, as to such
guaranties, guaranty supplements, pledges, assignments,
security agreement supplements and security agreements
being legal, valid and binding obligations of each Loan
Party thereto enforceable in accordance with their
terms and as to such other matters as the Collateral
Agent may reasonably request,
(vi) as promptly as practicable after such
request, formation or acquisition, deliver, upon the
request of the Collateral Agent in its reasonable
discretion, to the Collateral Agent with respect to
each parcel of real property owned or held by the
entity that is the subject of such request, formation
or acquisition title reports, surveys and engineering,
soils and other reports, and environmental assessment
reports, each in scope, form and substance satisfactory
to the Collateral Agent, provided, however, that to the
extent that any Loan Party or any of its Subsidiaries
shall have otherwise received any of the foregoing
items with respect to such real property, such items
shall, promptly after the receipt thereof, be delivered
to the Collateral Agent,
(vii) upon the occurrence and during the
continuance of a Default, promptly cause to be
deposited any and all cash dividends paid or payable to
it or any of its Subsidiaries from any of its
Subsidiaries from time to time into the Collateral
Account, and with respect to all other dividends paid
or payable to it or any of its Subsidiaries from time
to time, promptly execute and deliver, or cause such
Subsidiary to promptly execute and deliver, as the case
may be, any and all further instruments and take or
cause such Subsidiary to take, as the case may be, all
such other action as the Collateral Agent may deem
necessary or desirable in order to obtain and maintain
from and after the time such dividend is paid or
payable a perfected, first priority lien on and
security interest in such dividends, and
(viii) at any time and from time to time,
promptly execute and deliver any and all further
instruments and documents and take all such other
action as the Collateral Agent may deem necessary or
desirable in obtaining the full benefits of, or in
perfecting and preserving the Liens of, such
guaranties, mortgages, pledges, assignments, security
agreement supplements, intellectual property security
agreement supplements and security agreements.
(k) Further Assurances. (i) Promptly upon request by
any Agent, or any Lender Party through the Administrative Agent,
correct, and cause each of its Subsidiaries promptly to correct,
any material defect or error that may be discovered in any Loan
Document or in the execution, acknowledgment, filing or
recordation thereof, and
(ii) Promptly upon request by any Agent, or any
Lender Party through the Administrative Agent, do,
execute, acknowledge, deliver, record, re-record, file,
re-file, register and re-register any and all such
further acts, deeds, conveyances, pledge agreements,
assignments, financing statements and continuations
thereof, termination statements, notices of assignment,
transfers, certificates, assurances and other
instruments as any Agent, or any Lender Party through
the Administrative Agent, may reasonably require from
time to time in order to (A) carry out more effectively
the purposes of the Loan Documents, the Interim Order
and the Final Order, as applicable (B) to the fullest
extent permitted by applicable law, subject any Loan
Party's or any of its Subsidiaries' properties, assets,
rights or interests to the Liens now or hereafter
intended to be covered by any of the Collateral
Documents, (C) perfect and maintain the validity,
effectiveness and priority of any of the Collateral
Documents and any of the Liens intended to be created
thereunder and (D) assure, convey, grant, assign,
transfer, preserve, protect and confirm more
effectively unto the Secured Parties the rights granted
or now or hereafter intended to be granted to the
Secured Parties under any Loan Document or under any
other instrument executed in connection with any Loan
Document to which any Loan Party or any of its
Subsidiaries is or is to be a party, and cause each of
its Subsidiaries to do so.
(l) Performance of Related Documents. Perform and
observe, and cause each of its Subsidiaries to perform and
observe, all of the terms and provisions of each Related Document
to be performed or observed by it, maintain each such Related
Document in full force and effect, enforce such Related Document
in accordance with its terms, take all such action to such end as
may be from time to time requested by the Administrative Agent
and, upon request of the Administrative Agent, make to each other
party to each such Related Document such demands and requests for
information and reports or for action as any Loan Party or any of
its Subsidiaries is entitled to make under such Related Document
except as expressly otherwise permitted under the Bankruptcy
Code.
(m) Compliance with Terms of Leaseholds. Make all
payments and otherwise perform all obligations in respect of all
leases of real property to which the Parent Guarantor or any of
its Subsidiaries is a party, keep such leases in full force and
effect and not allow such leases to lapse or be terminated or any
rights to renew such leases to be forfeited or canceled except as
expressly permitted under Section 365 of the Bankruptcy Code and
consented to by the Administrative Agent in writing prior to such
action being taken (such consent not to be unreasonably
withheld), notify the Administrative Agent of any default by any
party with respect to such leases and cooperate with the
Administrative Agent in all respects to cure any such default,
and cause each of its Subsidiaries to do so.
(n) Cash Concentration Account; L/C Collateral
Account. Maintain, and cause each of its Subsidiaries to
maintain, a main cash concentration account with Citibank and
lockbox accounts into which all proceeds of Collateral are paid
with one or more banks acceptable to the Collateral Agent that
have accepted the assignment of such accounts to the Collateral
Agent for the benefit of the Secured Parties pursuant to the
Security Agreement.
(o) Priority. Acknowledge pursuant to Section
364(c)(1) of the Bankruptcy Code, the obligations of the Loan
Parties hereunder and under the other Loan Documents constitute
allowed administrative expense claims in the Cases having
priority over all administrative expenses of the kind specified
in Sections 503(b) or 507(b) of the Bankruptcy Code subject only
to the Carve-Out.
(p) Validity of Loan Documents. Use its best efforts
to object to any application made on behalf of any Loan Party or
by any Person to the validity of any Loan Document or the
applicability or enforceability of any Loan Document or which
seeks to void, avoid, limit, or otherwise adversely affect the
security interest created by or in any Loan Document or any
payment made pursuant thereto.
(q) Use of Cash Collateral. Use any cash collateral
permitted to be used by the Borrower or Parent Guarantor pursuant
to the Interim Order and the Final Order solely in accordance
with Section 2.14.
(r) Conditions Subsequent.
(i) Within 30 days after the Initial Extension of
Credit, evidence that counterparts of the deeds of trust,
trust deeds and mortgages covering the properties listed on
Schedule 4.01(u) and Schedule III (together with the
Assignment of Leases and Rents referred to therein) (the
"Mortgages") have been duly recorded in all filing or
recording offices that the Administrative Agent may deem
necessary or desirable in order to create a valid first and
subsisting Lien on the property described therein in favor
of the Secured Parties and that all filing and recording
taxes and fees have been paid.
(ii) Within 10 Business Days after the Initial
Extension of Credit, evidence that the Pledged Account
Letters referred to in the Security Agreement have been duly
executed by each Pledged Account Bank referred to in the
Security Agreement.
(iii) Within 30 Business Days after the
Initial Extension of Credit, evidence that not less than 75%
of the Additional Pledged Account Letters referred to in the
Security Agreement have been duly executed by Additional
Pledged Account Banks referred to in the Security Agreement
and within 60 Business Days after the Initial Extension of
Credit, evidence that all of the Additional Pledged Account
Letters referred to in the Security Agreement have been duly
executed by Additional Pledged Account Banks referred to in
the Security Agreement.
(iv) Within 2 Business Days after the Initial
Extension of Credit, evidence that (i) account number
00100006148 maintained by the Borrower at Chase Bank of
Texas, N.A. in the name of "Specialty Retailers, Inc. fbo
Credit Suisse First Boston, as Collateral Agent" and all
related subaccounts and (ii) account number 603987
maintained by the Borrower at Chase Bank of Texas, N.A.,
have each been closed and all funds held therein have been
transferred to the Cash Concentration Account.
SECTION 5.02 Negative Covenants
. So long as any Advance or any other Obligation of
any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall
have any Commitment hereunder, neither the Borrower nor the
Parent Guarantor will, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to
exist, or permit any of its Subsidiaries to create, incur, assume
or suffer to exist, any Lien on or with respect to any of its
properties of any character (including, without limitation,
accounts) whether now owned or hereafter acquired, or sign or
file or suffer to exist, or permit any of its Subsidiaries to
sign or file or suffer to exist, under the Uniform Commercial
Code of any jurisdiction, a financing statement that names the
Parent Guarantor or any of its Subsidiaries as debtor, or sign or
suffer to exist, or permit any of its Subsidiaries to sign or
suffer to exist, any security agreement authorizing any secured
party thereunder to file such financing statement, or assign, or
permit any of its Subsidiaries to assign, any accounts or other
right to receive income (or apply to the Bankruptcy Court for
authority to do so), except:
(i) Liens created under the Loan Documents and
contemplated by the Interim Order and the Final Order;
(ii) Permitted Liens;
(iii) Liens existing on the Filing Date and
described on Schedule 5.02(a) hereto;
(iv) Liens arising in connection with (1)
Capitalized Leases and (2) purchase money Liens upon or
in real property or equipment acquired or held by the
Borrower or any of its Subsidiaries in the ordinary
course of business to secure the purchase price of such
property or equipment or to secure Debt incurred solely
for the purpose of financing the acquisition of any
such property or equipment to be subject to such Liens,
or Liens existing on any such property or equipment at
the time of acquisition (other than any such Liens
created in contemplation of such acquisition that do
not secure the purchase price), or extensions, renewals
or replacements of any of the foregoing for the same or
a lesser amount; provided, however, that no such Lien
shall extend to or cover any assets subject to such
Capitalized Leases or property other than the property
or equipment being acquired and no such extension,
renewal or replacement shall extend to or cover any
property not theretofore subject to the Lien being
extended, renewed or replaced; and provided further
that the aggregate principal amount of the Debt secured
by Liens permitted by this clause (iv) shall not exceed
the amount permitted under Section 5.02(b)(ii)(B) at
any time outstanding; and
(v) Liens securing Debt permitted under Section
5.02(b)(ii)(E).
(vi) Liens arising in connection with any judgment
or order for the payment of money in an amount not to
exceed $5,000,000 rendered against any Loan Party,
provided that enforcement proceedings shall not have
been commenced by any creditor upon such judgment or
order and provided further that there shall not have
occurred a period of 20 consecutive days during which a
stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be
in effect.
(b) Debt. Create, incur, assume or suffer to exist,
or permit any of its Subsidiaries to create, incur, assume or
suffer to exist, any Debt, except:
(i) in the case of any Subsidiary of the
Borrower, Debt owed to the Borrower or to a wholly
owned Subsidiary of the Borrower, provided that, in
each case, such Debt (x) shall constitute Pledged Debt,
(y) shall be on terms acceptable to the Administrative
Agent and (z) shall be evidenced by promissory notes in
form and substance satisfactory to the Administrative
Agent and such promissory notes shall be pledged as
security for the Obligations under the Loan Documents
of the holder thereof and delivered to the Collateral
Agent pursuant to the terms of the Security Agreement;
and
(ii) in the case of the Loan Parties;
(A) Debt under the Loan Documents;
(B) Capitalized Leases and Debt secured by
Liens permitted by Section 5.02(a)(iv)(2) not to
exceed in the aggregate $6,000,000 at any time
outstanding;
(C) the Surviving Debt;
(D) indorsement of negotiable instruments
for deposit or collection or similar transactions
in the ordinary course of business;
(E) Debt under the Pre-Petition 1997 Credit
Agreement;
(F) Debt under Senior Notes and the Senior
Subordinated Notes;
(G) Debt extending the maturity of, or
refunding or refinancing, in whole or in part,
Debt described in clauses (B), (C), (E), and (F)
above, provided that (1) the terms of any such
extending, refunding or refinancing Debt, and of
any agreement entered into and of any instrument
issued in connection therewith, are otherwise
permitted by the Loan Documents, (2) the terms
relating to principal amount, amortization,
maturity, collateral (if any) and subordination
(if any), and other material terms taken as a
whole, of any such extending, refunding or
refinancing Debt, and of any agreement entered
into and of any instrument issued in connection
therewith, are no less favorable in any material
respect to the Loan Parties or the Lender Parties
than the terms of any agreement or instrument
governing the Debt being extended, refunded or
refinanced and the interest rate applicable to
such extending refunding or refinancing Debt does
not exceed the then applicable market interest
rate, and (3) in the case of any Surviving Debt,
the principal amount of such Surviving Debt shall
not be increased above the principal amount, and
interest accrued to the date of refinancing,
thereof outstanding immediately prior to such
extension, refunding or refinancing;
(H) Unsecured Debt in an aggregate
outstanding principal amount not to exceed at any
time $2,500,000;
(I) Debt incurred in connection with the
Credit Card Program; and
(J) Subordinated Debt not to exceed in the
aggregate $50,000,000.
(c) Change in Nature of Business. Make, or permit any
of its Subsidiaries to make, any material change in the nature of
its business as carried on at the date hereof.
(d) Mergers, Etc. Merge into or consolidate with any
Person or permit any Person to merge into it, or permit any of
its Subsidiaries to do so (or apply to the Bankruptcy Court for
authority to do so except in connection with the Reorganization
Plan), except that any Subsidiary (other than a Non-Filing
Subsidiary unless with the prior written consent of the
Administrative Agent) of the Borrower may merge into or
consolidate with any other Subsidiary (other than a Non-Filing
Subsidiary unless with the prior written consent of the
Administrative Agent) of the Borrower or with the Borrower,
provided that, in the case of any such merger or consolidation,
the Person formed by such merger or consolidation shall be a
wholly owned Subsidiary of the Borrower; provided, however, that
in each case, immediately before and after giving effect thereto,
no Default shall have occured and be continuing and, in the case
of any such merger to which any Borrower is a party, such
Borrower is the surviving corporation.
(e) Sales, Etc., of Assets. Sell, lease, transfer or
otherwise dispose of, or permit any of its Subsidiaries to sell,
lease, transfer or otherwise dispose of, any assets, or grant any
option or other right to purchase, lease or otherwise acquire any
assets (or apply to the Bankruptcy Court for authority to do so,
except in connection with the Reorganization Plan) other than:
(i) Inventory to be sold in the ordinary course
of its business;
(ii) uneconomical, obsolete or worn out furniture,
fixtures, leasehold improvements and equipment in the
ordinary course and consistent with past business
practice;
(iii) sales in connection with store closings
(including GOB Stores) so long as such sales are in
each case at fair market value and on commercially
reasonable terms provided that (i) if such sales are
individually in excess of $250,000 or in the aggregate
in excess of $5,000,000 but less than $25,000,000 in
the aggregate (excluding GOB Stores), consented to by
the Administrative Agent, which consent shall not be
unreasonably withheld; and (ii) if such sales are in
the aggregate together with all prior sales in excess
of $25,000,000, consented to by the Administrative
Agent in its sole discretion.
(iv) sales from a Credit Card Issuer to the
Borrower of Receivables pursuant to the Credit Card
Program.
provided that in the case of clause (ii) and (iii) above, the
Borrower shall, on the date of receipt of the Net Cash Proceeds
from such sale, prepay the Advances pursuant to, and in
accordance with, Section 2.06(b)(ii).
(f) Investments in Other Persons. Make or hold, or
permit any of its Subsidiaries to make or hold, any Investment in
any Person, except,
(i) Investments by the Parent Guarantor and its
Subsidiaries in their Subsidiaries outstanding on the
date hereof;
(ii) loans and advances to employees in the
ordinary course of the business of the Parent Guarantor
and its Subsidiaries (other than Non-Filing
Subsidiaries) as presently conducted in an aggregate
principal amount not to exceed $5,000,000 at any time
outstanding;
(iii) Investments existing on the date hereof
and described on Schedule 4.01(w) hereto;
(iv) Investments by Granite National Bank, N.A.
pursuant to the rules and regulations of the Office of
the Comptroller of the Currency;
(v) Investments consisting of intercompany Debt
permitted under Section 5.02(b)(ii);
(vi) Receivables of the Parent or its Subsidiaries
in the ordinary course of the business of the Parent or
such Subsidiary pursuant to the Credit Card Program;
and
(vii) Investments by the Parent Guarantor and
its Subsidiaries in Cash Equivalents in an aggregate
principal amount not to exceed $5,000,000 at any time
outstanding.
(g) Restricted Payments. Declare or pay any
dividends, purchase, redeem, retire, defease or otherwise acquire
for value any of its capital stock or any warrants, rights or
options to acquire such capital stock, now or hereafter
outstanding, return any capital to its stockholders as such, make
any distribution of assets, capital stock, warrants, rights,
options, obligations or securities to its stockholders as such or
issue or sell any capital stock or any warrants, rights or
options to acquire such capital stock, or permit any of its
Subsidiaries to do any of the foregoing or permit any of its
Subsidiaries to purchase, redeem, retire, defease or otherwise
acquire for value any capital stock of the Parent Guarantor or
any warrants, rights or options to acquire such capital stock or
to issue or sell any capital stock or any warrants, rights or
options to acquire such capital stock (or apply to the Bankruptcy
Court for authority to do so, except in connection with the
Reorganization Plan), except that, so long as no Default shall
have occurred and be continuing at the time of any action
described in clause (i) or (ii) below or would result therefrom:
(i) any Subsidiary of any Borrower may (A)
declare and pay cash dividends to such Borrower and (B)
declare and pay cash dividends to any other Loan Party
(other than a Non-Filing Subsidiary) of which it is a
Subsidiary,
(ii) the Borrower may pay cash dividends or
otherwise transfer funds to the Parent Guarantor for
operating expenses incurred in the normal course of
business by the Parent Guarantor or paid by the Parent
Guarantor on behalf of the Borrower. Such expenses
include all payroll and benefits costs for all
Subsidiaries of the Parent Guarantor, telephone,
travel, rent and other occupancy costs, professional
expenses, including consulting, audit, accounting and
legal expenses, corporate insurance expenses, data
processing costs and other operating expenses,
(h) Amendments of Constitutive Documents. Amend, or
permit any of its Subsidiaries to amend, its certificate of
incorporation or bylaws or other constitutive documents in any
material respect unless such change would not have a Material
Adverse Effect or does not adversely affect the rights and
remedies of the Administrative Agent or any Lender Party under
any Loan Document or any Related Document.
(i) Accounting Changes. Make or permit, or permit any
of its Subsidiaries to make or permit, any change in
(i) accounting policies or reporting practices, except as
required by generally accepted accounting principles or
(ii) Fiscal Year.
(j) Prepayments, Etc., of Debt. Prepay, redeem,
purchase, defease or otherwise satisfy prior to the scheduled
maturity thereof in any manner, or make any payment in violation
of any subordination terms of, any Debt, except (i) the
prepayment of the Advances in accordance with the terms of this
Agreement (ii) payments required or permitted to be made pursuant
the Interim Order or the Final Order for adequate protection
payments, (iii) refinancings of Debt to the extent permitted by
5.02(b)(ii)(G), and (iv) payments of all pre-petition claims
authorized by the First Day Orders at any time after such First
Day Orders are entered by the Bankruptcy Court; provided however,
that the Borrower shall only make payment in respect of Debt
incurred in connection with the Pre-Petition 1997 Credit
Agreement in an aggregate amount not to exceed $12,000,000 and on
January 31, 2001 (the "Payment Date"), provided that (1) no
complaint arising under Chapter 5 of the Bankruptcy Code has been
filed within the applicable period for commencing such actions
set forth in the Interim Order or the Final Order (subject to
extension by consent of the parties), or if such a complaint has
been filed, such complaint has been dismissed by a final order
with prejudice, (2) the Parent Guarantor shall have maintained at
all times EBITDA of the Parent Guarantor and its Subsidiaries of
not less than $31,000,000 for the eight month period ended
January 31, 2001, and (3) Excess Availability shall be not less
than $92,000,000 at all times for each of the 30 days immediately
preceding the Payment Date.
(k) Amendment, Etc., of Related Documents. Cancel or
terminate any Related Document or consent to or accept any
cancellation or termination thereof, amend, modify or change in
any manner any term or condition of any Related Document or give
any consent, waiver or approval thereunder, waive any default
under or any breach of any term or condition of any Related
Document, agree in any manner to any other amendment,
modification or change of any term or condition of any Related
Document (other than pursuant to Section 365 of the Bankruptcy
Code) or take any other action in connection with any Related
Document that would impair the value of the interest or rights of
any Loan Party thereunder or that would impair the rights or
interests of any Agent or any Lender Party, or otherwise amend
any provision or term of any or permit any of its Subsidiaries to
do any of the foregoing;
(m) Negative Pledge. Enter into or suffer to exist,
or permit any of its Subsidiaries to enter into or suffer to
exist, any agreement prohibiting or conditioning the creation or
assumption of any Lien upon any of its property or assets except
(i) in favor of the Secured Parties or (ii) in connection with
(A) any Surviving Debt, (B) any purchase money Debt permitted by
Section 5.02(b)(iii)(H) solely to the extent that the agreement
or instrument governing such Debt prohibits a Lien on the
property acquired with the proceeds of such Debt, and (C) any
Capitalized Lease permitted by Section 5.02(b)(iii)(B) solely to
the extent that such Capitalized Lease prohibits a Lien on the
property subject thereto.
(n) Partnerships, Etc. Become a general partner in
any general or limited partnership or joint venture, or permit
any of its Subsidiaries to do so, other than any Subsidiary the
sole assets of which consist of its interest in such partnership
or joint venture.
(o) Speculative Transactions. Engage, or permit any
of its Subsidiaries to engage, in any transaction involving
commodity options or futures contracts or any similar speculative
transactions.
(p) Capital Expenditures. Make, or permit any of its
Subsidiaries to make, any Capital Expenditures that would cause
the aggregate of all such Capital Expenditures made by the Parent
Guarantor and its Subsidiaries in any period set forth below to
exceed the amount set forth below for such period:
Period Amount
Fiscal Year 2000 $20,000,000
Fiscal Year 2001 $29,000,000
Fiscal Year 2002 $35,000,000
provided, however, that if, for any Fiscal Year set forth above,
the amount specified above for such Fiscal Year exceeds the
aggregate amount of Capital Expenditures made by the Parent
Guarantor and its Subsidiaries during such Fiscal Year (the
amount of such excess being the "Excess Amount"), the Parent
Guarantor and its Subsidiaries shall be entitled to make
additional Capital Expenditures in the immediately succeeding
Fiscal Year in an amount (such amount being referred to herein as
the "Carryover Amount") equal to the lesser of (i) the Excess
Amount and (ii) 50% of the amount specified above for such
immediately preceding Fiscal Year.
(q) Formation of Subsidiaries. Organize or invest, or
permit any Subsidiary to organize or invest, in any new
Subsidiary.
(r) Limitation on Payment Restrictions. Enter into or
suffer to exist, or permit any Subsidiary to enter into or suffer
to exist, any agreement limiting the ability of any of its
Subsidiaries to declare or pay dividends or other distributions
in respect of its capital stock or make loans or advances to, or
otherwise transfer assets to or invest in, the Parent Guarantor
or any Subsidiary of the Parent Guarantor (whether through a
covenant restricting dividends, loans, asset transfers or
investments, a financial covenant or otherwise), except the Loan
Documents.
(s) Interim Order and Final Order. Make or permit to
be made any changes, amendment or modifications, or any
application or motion for any change, amendment or modification
to the Interim Order or the Final Order. The parties acknowledge
that the foregoing shall not preclude the entry of any order of
the Bankruptcy Court approving or authorizing an amendment or
modification of this Agreement or the other Loan Documents or the
Interim Order or the Final Order permitted by Section 9.01 which
order shall be acceptable to the Lenders whose consent is
required to approve such amendment or modification under Section
9.01.
(t) Application to the Bankruptcy Court. Apply to the
Bankruptcy Court for the authority to take any action that is
prohibited by the terms of this Agreement and the other Loan
Documents or refrain from taking any action that is required to
be taken by the terms of this Agreement and the other Loan
Documents.
(u) Chapter 11 Claims. Incur, create, assume, suffer
to exist or permit or make any application or motion for any
other Super-Priority Claim or Lien which is pari passu with or
senior to the claims of the Administrative Agent and the Lenders
granted pursuant to this Agreement, the Interim Order or the
Final Order, other than as expressly contemplated and permitted
by the Interim Order or the Final Order.
(v) Reclamation Claims; Bankruptcy Code Section
546(g)* Agreements. (a) Make any payments or transfer any
property on account of claims asserted by vendors of any Loan
Party for reclamation in accordance with Section 2-702 of the
Uniform Commercial Code and Section 546(c) of the Bankruptcy
Code, and (b) enter into any agreements or file any motion
seeking a Bankruptcy Court order for the return of inventory to
any vendor pursuant to Section 546(g)* of the Bankruptcy Code,
other than , in each instance, as expressly contemplated and
permitted by the Interim Order or the Final Order.
(w) Lines of Business. Engage to any substantial
extent in any line or lines of business activity other than
businesses of the same general type as those in which the
Borrower and its Subsidiaries are engaged on the date of this
Agreement or which are related thereto or permit SRI Receivables
Purchase Co., Inc. to engage in any business whatsoever.
(x) Employment Agreements. Amend, modify or change in
any manner any term or condition, or make any application or
motion to do so, of any Employment Agreement or give any consent,
waiver or approval thereunder to increase the compensation
payable thereunder other than increases that are in the ordinary
course and consistent with past business practices.
(y) Non-Filing Subsidiaries. Will not and will not
permit any of its Subsidiaries to directly or indirectly (i)
purchase, lease, transfer, sell or exchange any of its property
or assets of any kind or the rendering of services to any
Non-Filing Subsidiary, (ii) pay any amounts owing to any
Non-Filing Subsidiary and all such payments owing are hereby
subordinate to the payment in full of all Obligations hereunder,
(iii) make or permit to exist any loans or advances to Non-Filing
Subsidiaries, or (iv) apply to the Bankruptcy Court for authority
to do any of the foregoing; provided, however, the Borrower shall
be permitted to continue to conduct business with a Credit Card
Issuer pursuant to the Credit Card Program consistent with past
practice.
SECTION 5.03 Reporting Requirements
. So long as any Advance or any other Obligation of
any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall
have any Commitment hereunder, the Parent Guarantor will furnish
to the Agents and the Lender Parties:
(a) Default Notice. As soon as possible and in any
event within two days after the occurrence of each Default or any
event, development or occurrence reasonably likely to have a
Material Adverse Effect continuing on the date of such statement,
a statement of the principal financial officer of the Parent
Guarantor setting forth details of such Default and the action
that the Parent Guarantor has taken and proposes to take with
respect thereto.
(b) Annual Financials. As soon as available and in
any event within 90 days after the end of each Fiscal Year
commencing with Fiscal Year ending January 31, 2000, a copy of
the annual audit report for such year for the Parent Guarantor
and its Subsidiaries, including therein Consolidated balance
sheets of the Parent Guarantor and its Subsidiaries as of the end
of such Fiscal Year and Consolidated statements of income and a
Consolidated statement of cash flows of the Parent Guarantor and
its Subsidiaries for such Fiscal Year, in each case accompanied
by an opinion acceptable to the Required Lenders of
PricewaterhouseCoopers LLC or other independent public
accountants of recognized standing acceptable to the
Administrative Agent, together with Consolidating balance sheets
of the Parent Guarantor and the Borrower as of the end of such
Fiscal Year and Consolidating statements of income and cash flows
of the Parent Guarantor and the Borrower for such Fiscal Year,
all in reasonable detail and duly certified by the principal
financial officer of the Parent Guarantor as having been prepared
in accordance with GAAP and (iv) a certificate of the principal
financial officer of the Parent Guarantor stating that no Default
has occurred and is continuing or, if a Default has occurred and
is continuing, a statement as to the nature thereof and the
action that the Parent Guarantor has taken and proposes to take
with respect thereto.
(c) Quarterly Financials. As soon as available and in
any event within 45 days after the end of each of the first three
quarters of each Fiscal Year commencing with the first Fiscal
Quarter ending April 15, 2000, Consolidated and Consolidating
balance sheets of the Parent Guarantor and its Subsidiaries as of
the end of such quarter and Consolidated and Consolidating
statements of income and a Consolidated statement of cash flows
of the Parent Guarantor and its Subsidiaries for the period
commencing at the end of the previous fiscal quarter and ending
with the end of such fiscal quarter and Consolidated and
Consolidating statements of income and a Consolidated statement
of cash flows of the Parent Guarantor and its Subsidiaries for
the period commencing at the end of the previous Fiscal Year and
ending with the end of such quarter, setting forth in each case
in comparative form the corresponding figures for the
corresponding period of the preceding Fiscal Year, all in
reasonable detail and duly certified (subject to year-end audit
adjustments) by the principal financial officer of the Parent
Guarantor as having been prepared in accordance with GAAP,
together with (i) a certificate of said officer stating that no
Default has occurred and is continuing or, if a Default has
occurred and is continuing, a statement as to the nature thereof
and the action that the Parent Guarantor has taken and proposes
to take with respect thereto and (ii) a schedule in form
satisfactory to the Administrative Agent of the computations used
by the Parent Guarantor in determining compliance with the
covenants contained in Section 5.04, provided that in the event
of any change in GAAP used in the preparation of such financial
statements, the Parent Guarantor shall also provide, if necessary
for the determination of compliance with Section 5.04, a
statement of reconciliation conforming such financial statements
to GAAP.
(d) Monthly Financials. As soon as available and in
any event within 30 days after the end of each month, a
Consolidated balance sheet of the Parent Guarantor and its
Subsidiaries as of the end of such month and Consolidated and
Consolidating statements of income and a Consolidated statement
of cash flows of the Parent Guarantor and its Subsidiaries for
the period commencing at the end of the previous month and ending
with the end of such month and Consolidated and Consolidating
statements of income and a Consolidated statement of cash flows
of the Parent Guarantor and its Subsidiaries for the period
commencing at the end of the previous Fiscal Year and ending with
the end of such month, setting forth in each case in comparative
form the corresponding figures for the corresponding month of the
preceding Fiscal Year, all in reasonable detail and duly
certified by the principal financial officer or controller of the
Parent Guarantor.
(e) Annual Forecasts. As soon as available and in any
event no later than 45 days after the end of each Fiscal Year,
forecasts prepared by management of the Parent Guarantor, in form
satisfactory to the Administrative Agent, of balance sheets,
income statements and cash flow statements on a monthly basis for
the Fiscal Year following such Fiscal Year and on an annual basis
for each Fiscal Year thereafter until the Termination Date.
(f) Litigation. Promptly after the commencement
thereof, notice of all actions, suits, investigations, litigation
and proceedings before any Governmental Authority or governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, affecting any Loan Party or any of its
Subsidiaries of the type described in Section 4.01(f), and
promptly after the occurrence thereof, notice of any adverse
change in the status or the financial effect on any Loan Party or
any of its Subsidiaries of the Disclosed Litigation from that
described on Schedule 4.01(f) hereto.
(g) Securities Reports. Promptly after the sending or
filing thereof, copies of all proxy statements, financial
statements and reports that any Loan Party or any of its
Subsidiaries sends to its stockholders, and copies of all
regular, periodic and special reports, and all registration
statements, that any Loan Party or any of its Subsidiaries files
with the Securities and Exchange Commission or any governmental
authority that may be substituted therefor, or with any national
securities exchange.
(h) Creditor Reports. Promptly after the furnishing
thereof, copies of any statement or report furnished to any
holder of Debt securities of any Loan Party or of any of its
Subsidiaries pursuant to the terms of any indenture, loan or
credit or similar agreement and not otherwise required to be
furnished to the Lender Parties pursuant to any other clause of
this Section 5.03.
(i) Agreement Notices. Promptly upon receipt thereof,
copies of all notices, requests and other documents received by
any Loan Party or any of its Subsidiaries under or pursuant to
any Related Document or instrument, indenture, loan or credit or
similar agreement regarding or related to any breach or default
by any party thereto or any other event that could materially
impair the value of the interests or the rights of any Loan Party
or otherwise have a Material Adverse Effect and copies of any
amendment, modification or waiver of any provision of any Related
Document or instrument, indenture, loan or credit or similar
agreement and, from time to time upon request by the
Administrative Agent, such information and reports regarding the
Related Documents and such instruments, indentures and loan and
credit and similar agreements as the Administrative Agent may
reasonably request.
(j) Revenue Agent Reports. Within 15 days after
receipt, copies of all Revenue Agent Reports (Internal Revenue
Service Form 886), or other written proposals of the Internal
Revenue Service, that propose, determine or otherwise set forth
positive adjustments to the Federal income tax liability of the
affiliated group (within the meaning of Section 1504(a)(1) of the
Internal Revenue Code) of which the Parent Guarantor is a member
aggregating $1,000,000 or more.
(k) Tax Certificates. Promptly, and in any event
within 15 days after the due date (with extensions) for filing
the final Federal income tax return in respect of each taxable
year, a certificate (a "Tax Certificate"), signed by the
President or the principal financial officer or controller of the
Parent Guarantor, stating that the Parent Guarantor has paid to
the Internal Revenue Service or other taxing authority the full
amount that the Parent Guarantor is required to pay in respect of
Federal income tax for such year.
(l) ERISA. (i) ERISA Events and ERISA Reports.
(A) Promptly and in any event within 10 days after any Loan Party
or any ERISA Affiliate knows or has reason to know that any ERISA
Event has occurred, a statement of the principal financial
officer of the Parent Guarantor describing such ERISA Event and
the action, if any, that such Loan Party or such ERISA Affiliate
has taken and proposes to take with respect thereto and (B) on
the date any records, documents or other information must be
furnished to the PBGC with respect to any Plan pursuant to
Section 4010 of ERISA, a copy of such records, documents and
information.
(ii) Plan Terminations. Promptly and in any event
within two Business Days after receipt thereof by any
Loan Party or any ERISA Affiliate, copies of each
notice from the PBGC stating its intention to terminate
any Plan or to have a trustee appointed to administer
any Plan.
(iii) Multiemployer Plan Notices. Promptly
and in any event within five Business Days after
receipt thereof by any Loan Party or any ERISA
Affiliate from the sponsor of a Multiemployer Plan,
copies of each notice concerning (A) the imposition of
Withdrawal Liability by any such Multiemployer Plan,
(B) the reorganization or termination, within the
meaning of Title IV of ERISA, of any such Multiemployer
Plan or (C) the amount of liability incurred, or that
may be incurred, by such Loan Party or any ERISA
Affiliate in connection with any event described in
clause (A) or (B).
(iv) Plan Annual Reports. Promptly and in any
event within 30 days after the filing thereof with the
Internal Revenue Service, copies of each Schedule B
(Actuarial Information) to the annual report (Form 5500
Series) with respect to each Plan.
(m) Environmental Conditions. Promptly after the
assertion or occurrence thereof, notice of any Environmental
Action against or of any noncompliance by any Loan Party or any
of its Subsidiaries with any Environmental Law or Environmental
Permit that could reasonably be expected to have a Material
Adverse Effect.
(n) Real Property. As soon as available and in any
event within 60 days after the end of each Fiscal Year, a report
supplementing Schedules 4.01(u) and 4.01(v) hereto, including an
identification of all real and leased property disposed of by the
Parent Guarantor or any of its Subsidiaries during such Fiscal
Year, a list and description (including the street address,
county or other relevant jurisdiction, state, record owner, book
value thereof, and in the case of leases of property, lessor,
lessee, expiration date and annual rental cost thereof) of all
real property acquired or leased during such Fiscal Year and a
description of such other changes in the information included in
such Schedules as may be necessary for such Schedules to be
accurate and complete.
(o) Insurance. As soon as available and in any event
within 60 days after the end of each Fiscal Year, a report
summarizing the insurance coverage (specifying type, amount and
carrier) in effect for each Loan Party and its Subsidiaries and
containing such additional information as any Agent, or any
Lender Party through the Administrative Agent, may reasonably
specify.
(p) Borrowing Base Certificate. As soon as available
and in any event within no later than the close of business on
Wednesday of each week, a Borrowing Base Certificate, as at the
end of the immediately preceding Saturday of such week, certified
by the principal financial officer, executive vice president,
controller, treasurer or assistant treasurer of the Parent
Guarantor.
(q) Other Information. Such other information
respecting the business, condition (financial or otherwise),
operations, performance, properties or prospects of any Loan
Party or any of its Subsidiaries as any Agent, or any Lender
Party through the Administrative Agent, may from time to time
reasonably request.
SECTION 5.04 Financial Covenants
. So long as any Advance or any other Obligation of
any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall
have any Commitment hereunder, the Parent Guarantor will maintain
at all times EBITDA of the Parent Guarantor and its Subsidiaries
not less than the amount set forth below for each period set
forth below:
Period Amount
Fiscal Quarter ended October 31, $4,000,000
2000]
Two Fiscal Quarters ended January $12,000,000
31, 2001
Three Fiscal Quarters ended April $18,000,000
30, 2001
Four Fiscal Quarters ended July $28,000,000
31, 2001
Four Fiscal Quarters ended $33,000,000
October 31, 2001
Four Fiscal Quarter ended January $48,000,000
31, 2002
Four Fiscal Quarters ended April $51,000,000
30, 2002
Four Fiscal Quarters ended July $54,000,000
31, 2002
Four Fiscal Quarters ended $57,000,000
October 31, 2002
Four Fiscal Quarters ended $65,000,000
January 31, 2003
Four Fiscal Quarters ended April $68,000,000
30, 2003
ARTICLE 6
EVENTS OF DEFAULT
SECTION 6.01 Events of Default
. If any of the following events ("Events of Default")
shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal
of any Advance when the same shall become due and payable or (ii)
the Borrower shall fail to pay any interest on any Advance, or
any Loan Party shall fail to make any other payment under any
Loan Document, in each case under this clause (ii) when the same
shall become due and payable; or
(b) any representation or warranty made by any Loan
Party (or any of its officers) under or in connection with any
Loan Document shall prove to have been incorrect in any material
respect when made; or
(c) the Parent Guarantor or the Borrower shall fail to
perform or observe any term, covenant or agreement contained in
Section 2.14, 5.01(e), (f), (i), (j), (o) or (p), 5.02, 5.03 or
5.04; or
(d) any Loan Party shall fail to perform or observe
any other term, covenant or agreement contained in any Loan
Document on its part to be performed or observed if such failure
shall remain unremedied for 15 days after the earlier of the date
on which (A) a Responsible Officer becomes aware of such failure
or (B) written notice thereof shall have been given to the Parent
Guarantor by any Agent or any Lender Party; or
(e) the Cases shall be dismissed, suspended or
converted to a case under Chapter 7 of the Bankruptcy Code or a
trustee shall be appointed in the Cases; or an application shall
be filed by any Loan Party for the approval of, or there shall
arise any other claim having priority senior to or pari passu
with the claims of the Administrative Agent and the Lenders under
the Loan Documents or any other claim having priority over any or
all administrative expenses of the kind specified in Section
503(b) or 507(b) of the Bankruptcy Code (other than the
Carve-Out); or
(f) the Bankruptcy Court shall enter an order (i)
granting relief from the automatic stay applicable under Section
362 of the Bankruptcy Code to any holder of any security interest
in any assets in excess of $10,000 individually or in the
aggregate in excess of $100,000 for any and all such holders
other than as expressly recognized by the Interim Order or the
Final Order or (ii) approving any settlement or other stipulation
with any creditor of any Loan Party other than the Administrative
Agent and the Lenders or otherwise providing for payments as
adequate protection or otherwise to such creditor individually or
in the aggregate in excess of $100,000 for any and all such
creditors other than as expressly recognized by the Interim Order
or the Final Order; or
(g) any Loan Party shall make any payment (as adequate
protection or otherwise) on account of any claim arising or
deemed to have arisen prior to the Filing Date other than a
payment or payments which would not constitute a default under
section 6.01(f)(ii) except as expressly contemplated by the
Interim Order or the Final Order; or
(h) any Loan Party or any of its Subsidiaries shall
fail to pay any principal of, premium or interest on or any other
amount payable in respect of any Debt arising on or after the
Filing Date that is outstanding in a principal amount of at least
$1,000,000 either individually or in the aggregate for all such
Loan Parties and Subsidiaries (but excluding Debt outstanding
hereunder) of such Loan Party or such Subsidiary (as the case may
be), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable
grace period, if any, specified in the agreement or instrument
relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating
to any such Debt, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of
such Debt or otherwise to cause, or to permit the holder thereof
to cause, such Debt to mature; or any such Debt shall be declared
to be due and payable or required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay,
redeem, purchase or defease such Debt shall be required to be
made, in each case prior to the stated maturity thereof; or
(i) any Non-Filing Subsidiary shall generally not pay
its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall
be instituted by or against any Non-Filing Subsidiaries seeking
to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of it or its debts under any law relating
to bankruptcy, insolvency or reorganization or relief of debtors,
or seeking the entry of an order for relief or the appointment of
a receiver, trustee, or other similar official for it or for any
substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that
is being diligently contested by it in good faith, either such
proceeding shall remain undismissed or unstayed for a period of
30 days or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or
other similar official for, it or any substantial part of its
property) shall occur; or any Non-Filing Subsidiary shall take
any corporate or other action to authorize any of the actions set
forth above in this subsection (f); or
(j) any judgments or orders, either individually or in
the aggregate, for the payment of money in excess of (i)
$2,500,000 and, with respect to Loan Parties that are not
Non-Filing Subsidiaries, $2,500,000 as an administrative expense
of the kind specified in Section 503(b) of the Bankruptcy Code,
shall be rendered against any Loan Party or any of its
Subsidiaries and either (i) enforcement proceedings shall have
been commenced by any creditor upon such judgment or order or
(ii) there shall be any period of 10 consecutive days during
which a stay of enforcement of such judgment or order, by reason
of a pending appeal or otherwise, shall not be in effect ;
provided, however, that any such judgment or order shall not give
rise to an Event of Default under this Section 6.01(j) if and for
so long as (A) the amount of such judgment or order is covered by
a valid and binding policy of insurance between the defendant and
the insurer, which shall be rated at least "A" by A.M. Best
Company, covering full payment thereof and (B) such insurer has
been notified, and has not disputed the claim made for payment,
of the amount of such judgment or order; or
(k) any non-monetary judgment or order shall be
rendered against any Loan Party or any of its Subsidiaries that
is reasonably likely to have a Material Adverse Effect, and there
shall be any period of 20 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(l) any provision of any Loan Document after delivery
thereof pursuant to Section 3.01 or 5.01(j) shall for any reason
cease to be valid and binding on or enforceable against any Loan
Party party to it, or any such Loan Party shall so state in
writing; or
(m) any Collateral Document after delivery thereof
pursuant to Section 3.01 or 5.01(j) shall for any reason (other
than pursuant to the terms thereof) cease to create a valid and
perfected first priority lien on and security interest in the
Collateral purported to be covered thereby; or
(n) a Change of Control shall occur; or
(o) there shall occur any Material Adverse Change; or
(p) any ERISA Event shall have occurred with respect
to a Plan and the sum (determined as of the date of occurrence of
such ERISA Event) of the Insufficiency of such Plan and the
Insufficiency of any and all other Plans with respect to which an
ERISA Event shall have occurred and then exist (or the liability
of the Loan Parties and the ERISA Affiliates related to such
ERISA Event) exceeds $2,500,000; or
(q) any Loan Party or any ERISA Affiliate shall have
been notified by the sponsor of a Multiemployer Plan that it has
incurred Withdrawal Liability to such Multiemployer Plan in an
amount that, when aggregated with all other amounts required to
be paid to Multiemployer Plans by the Loan Parties and the ERISA
Affiliates as Withdrawal Liability (determined as of the date of
such notification), exceeds $2,500,000 or requires payments
exceeding $1,000,000 per annum; or
(r) any Loan Party or any ERISA Affiliate 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, and as a result of such
reorganization or termination the aggregate annual contributions
of the Loan Parties and the ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or being terminated have
been or will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such Multiemployer
Plans immediately preceding the plan year in which such
reorganization or termination occurs by an amount exceeding
$2,500,000; or
(s) The Bankruptcy Court shall enter an order
amending, supplementing, vacating or otherwise modifying the
Interim Order, Final Order or any order granting adequate
protection to the Pre-Petition Lenders (the parties acknowledging
that the foregoing shall not preclude the entry of any order of
the Bankruptcy Court approving or authorizing an amendment or
modification of this Agreement permitted by Section 9.01, which
order shall be acceptable to the Required Lenders); or
(t) The Bankruptcy Court shall enter an order
appointing an examiner with powers beyond the duty to investigate
and report as set forth in Section 1106(a)(3) and (4) of the
Bankruptcy Code, in the Cases; or
(u) Any Loan Party shall bring a motion in the Cases:
(i) to obtain working capital financing from any Person other
than Lenders under Section 364(d) of the Bankruptcy Code; or (ii)
to obtain financing from any Person other than the Lenders under
Section 364(c) of the Bankruptcy Code (other than with respect to
a financing used, in whole or part, to repay in full the
Obligations); or (iii) to grant any Lien other than those
permitted under Section 5.02(a) upon or affecting any Collateral;
or (iv) to use cash Collateral of the Administrative Agent or
Lenders under Section 363(c) of the Bankruptcy Code without the
prior written consent of the Lenders or Required Lenders (as
provided in Section 9.01 except to pay the Carve-Out); or (v) to
recover from any portions of the Collateral any costs or expenses
of preserving or disposing of such Collateral under Section
506(c) of the Bankruptcy Code; or (vi) to effect any other action
or actions adverse to the Administrative Agent or Lenders or
their rights and remedies hereunder or their interest in the
Collateral that would, individually or in the aggregate, have a
Material Adverse Effect; or
(v) The Bankruptcy Court shall enter an order granting
relief pursuant to Section 362(d) of the Bankruptcy Code other
than as permitted under Section 6.01(f)(i); or
(w) The entry of the Final Order shall not have
occurred within 45 days after the Filing Date; or
(x) Any challenge by any Loan Party to the validity of
any Loan Document or the applicability or enforceability of any
Loan Document or which seeks to void, avoid, limit, or otherwise
adversely affect the security interest created by or in any Loan
Document or any payment made pursuant thereto; or
(y) The determination of the Borrower, whether by vote
of the Borrower's board of directors or otherwise, to suspend the
operation of the Borrower's business in the ordinary course,
liquidate all or substantially all of the Borrower's assets, or
employ an agent or other third party to conduct any so-called
"Going-Out-of Business" sales (other than as permitted pursuant
to Section 5.02(e)(iii)), or the filing of a motion or other
application in the Cases, seeking authority to do any of the
foregoing; or
(z) Any objection shall have been filed by the Pre-
Petition Agent or any Pre-Petition Lender to the entry of the
Final Order; or
(aa) Granite National Bank, N.A. shall fail to sell
Receivables to the Borrower in the ordinary course and consistent
with past practice under the Receivables Transfer Agreement or
amend, modify or waive in any way manner any term or provision
thereof without the consent of the Administrative Agent, which
shall not be unreasonably withheld.
then, and in any such event, the Administrative Agent (i) shall
at the request, or may with the consent, of the Required Lenders,
by notice to the Borrower (with a copy to counsel for any
statutory committee of unsecured creditors' appointed to the
Cases and to the United States Trustee), declare the Commitments
of each Lender Party and the obligation of each Lender Party to
make Advances (other than Letter of Credit Advances by the
Issuing Bank or a Working Capital Lender pursuant to
Section 2.03(c) and Swing Line Advances by a Working Capital
Lender pursuant to Section 2.02(b)) and of the Issuing Bank to
issue Letters of Credit to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may
with the consent, of the Required Lenders, (A) by notice to the
Borrower, declare the Notes, all interest thereon and all other
amounts payable under this Agreement and the other Loan Documents
to be forthwith due and payable, whereupon the Notes, all such
interest and all such amounts shall become and be forthwith due
and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by
the Borrower, and (B) by notice to each party required under the
terms of any agreement in support of which a Standby Letter of
Credit is issued, request that all Obligations under such
agreement be declared to be due and payable; provided, however,
that in the event of an actual or deemed entry of an order for
relief with respect to any Loan Party that is a Non-Filing
Subsidiary under the Federal Bankruptcy Code, (x) the Commitments
of each Lender Party and the obligation of each Lender Party to
make Advances (other than Letter of Credit Advances by the
Issuing Bank or a Working Capital Lender pursuant to
Section 2.03(c) and Swing Line Advances by a Working Capital
Lender pursuant to Section 2.02(b)) and of the Issuing Bank to
issue Letters of Credit shall automatically be terminated and
(y) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
Upon the occurrence and during the continuance of an
Event of Default, the automatic stay provided in Section 362 of
the Bankruptcy Code shall be deemed automatically vacated and the
Administrative Agent, on behalf of the Lenders, shall, upon 5
days prior written notice to the Borrower and any creditors'
committee appointed in the Cases pursuant to Section 1102 of the
Bankruptcy Code, be immediately permitted to, among other things,
pursue any and all of its remedies against any Loan Party or the
Collateral and seek payment in respect of all Obligations.
SECTION 6.02 Actions in Respect of the Letters of Credit upon
Default
. If any Event of Default shall have occurred and be
continuing, the Administrative Agent may, or shall at the request
of the Required Lenders, irrespective of whether it is taking any
of the actions described in Section 6.01 or otherwise, make
demand upon the Borrower to, and forthwith upon such demand the
Borrower will, pay to the Collateral Agent on behalf of the
Lender Parties in same day funds at the Collateral Agent's office
designated in such demand, for deposit in the L/C Collateral
Account, an amount equal to the aggregate Available Amount of all
Letters of Credit then outstanding. If at any time the
Administrative Agent or the Collateral Agent determines that any
funds held in the L/C Collateral Account are subject to any right
or claim of any Person other than the Agents and the Lender
Parties or that the total amount of such funds is less than the
aggregate Available Amount of all Letters of Credit, the Borrower
will, forthwith upon demand by the Administrative Agent or the
Collateral Agent, pay to the Collateral Agent, as additional
funds to be deposited and held in the L/C Collateral Account, an
amount equal to the excess of (a) such aggregate Available Amount
over (b) the total amount of funds, if any, then held in the L/C
Collateral Account that the Administrative Agent or the
Collateral Agent, as the case may be, determines to be free and
clear of any such right and claim. Upon the drawing of any
Letter of Credit for which funds are on deposit in the L/C
Collateral Account, such funds shall be applied to reimburse the
Issuing Bank or Working Capital Lenders, as applicable, to the
extent permitted by applicable law.
ARTICLE 7
PARENT GUARANTY
SECTION 7.01 Guaranty
. (a) The Parent Guarantor hereby unconditionally and
irrevocably guarantees the punctual payment when due, whether at
scheduled maturity or on any date of a required prepayment or by
acceleration, demand or otherwise, of all Obligations of each
Loan Party now or hereafter existing under the Loan Documents,
(including, without limitation, any extensions, modifications,
substitutions, amendments or renewals of any or all of the
foregoing Obligations), whether direct or indirect, absolute or
contingent, and whether for principal, interest, fees, expenses
or otherwise (such Obligations being the "Guaranteed
Obligations"), and agrees to pay any and all expenses (including,
without limitation, reasonable counsel fees and expenses)
incurred by the Administrative Agent or the Lender Parties in
enforcing any rights under this Guaranty or any other Loan
Documents. Without limiting the generality of the foregoing, the
Parent Guarantor's liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed
by each Loan Party to the Administrative Agent or any Lender
Party under or in respect of the Loan Documents but for the fact
that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving
any Loan Party.
(b) The Parent Guarantor hereby unconditionally and
irrevocably agrees that in the event any payment shall be
required to be made to the Administrative Agent or any Lender
Party under this Guaranty or any other guaranty, the Parent
Guarantor will contribute, to the maximum extent permitted by
law, such amounts to each other guarantor so as to maximize the
aggregate amount paid to the Administrative Agent or any Lender
Parties under or in respect of the Loan Documents.
SECTION 7.02 Guaranty Absolute
. The Parent Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of
the Loan Documents, regardless of any law, regulation or order
now or hereafter in effect in any jurisdiction affecting any of
such terms or the rights of the Administrative Agent, the
Administrative Agents or the Lenders with respect thereto. The
Obligations of the Parent Guarantor under this Guaranty are
independent of the Guaranteed Obligations or any other
Obligations of any Loan Party under the Loan Documents, and a
separate action or actions may be brought and prosecuted against
the Parent Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against the Borrower or whether the
Borrower is joined in any such action or actions. The liability
of the Parent Guarantor under this Guaranty shall be irrevocable,
absolute and unconditional irrespective of, and the Parent
Guarantor hereby irrevocably waives any defenses it may now or
hereinafter have in any way relating to, any or all of the
following:
(a) any lack of validity or enforceability of any Loan
Document, the Interim Order, the Final Order or any agreement or
instrument relating thereto;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Guaranteed
Obligations or any other Obligations of any other Loan Party
under the Loan Documents, or any other amendment or waiver of or
any consent to departure from any Loan Document, including,
without limitation, any increase in the Guaranteed Obligations
resulting from the extension of additional credit to the
Borrower, the Parent Guarantor or any of their Subsidiaries or
otherwise;
(c) any taking, exchange, release or non-perfection of
any collateral, or any taking, release or amendment or waiver of
or consent to departure from any other guaranty, for all or any
of the Guaranteed Obligations;
(d) any manner of application of collateral, or
proceeds thereof, to all or any of the Guaranteed Obligations, or
any manner of sale or other disposition of any collateral for all
or any of the Guaranteed Obligations or any other Obligations of
any other Loan Party under the Loan Documents or any other assets
of the Borrower, the Parent Guarantor or any of their
Subsidiaries;
(e) any change, restructuring or termination of the
corporate or other legal structure or existence of the Borrower,
the Parent Guarantor or any of their Subsidiaries;
(f) any failure of the Administrative Agent or any
Lender Party to disclose to any Loan Party any information
relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any Loan
Party now or hereafter known to the Administrative Agent or any
Lender Party (the Parent Guarantor waiving any duty on the part
of the Administrative Agent or any Lender Party to disclose such
information); or
(h) any other circumstance (including, without
limitation, any statute of limitations) or any existence of or
reliance on any representation by the Administrative Agent or any
Lender Party that might otherwise constitute a defense available
to, or a discharge of, the Borrower, the Parent Guarantor or any
other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as
the case may be, if at any time any payment of any of the
Guaranteed Obligations is rescinded or must otherwise be returned
by the Administrative Agent or any Lender Party upon the
insolvency, bankruptcy or reorganization of the Borrower, the
Parent Guarantor or any of their Subsidiaries or otherwise, all
as though such payment had not been made.
SECTION 7.03 Waiver
. (a) The Parent Guarantor hereby unconditionally and
irrevocably waives promptness, diligence, notice of acceptance,
presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice
with respect to any of the Guaranteed Obligations and this
Guaranty and any requirement that the Administrative Agent or any
Lender Party protect, secure, perfect or insure any Lien or any
property subject thereto or exhaust any right or take any action
against any Loan Party or any other Person or any Collateral.
(b) The Parent Guarantor hereby unconditionally and
irrevocably waives any right to revoke this Guaranty and
acknowledges that this Guaranty is continuing in nature and
applies to all Guaranteed Obligations, whether existing now or in
the future.
(c) The Parent Guarantor hereby unconditionally and
irrevocably waives (i) any defense arising by reason of any claim
or defense based upon an election of remedies by the
Administrative Agent or any Lender Party that in any manner
impairs, reduces, releases or otherwise adversely affects the
subrogation, reimbursement, exoneration, contribution or
indemnification rights of the Parent Guarantor or other rights of
the Parent Guarantor to proceed against any of the Loan Parties,
any other guarantor or any other Person or any Collateral and
(ii) any defense based on any right of set-off or counterclaim
against or in respect of the Obligations of the Parent Guarantor
hereunder.
(d) The Parent Guarantor acknowledges that the
Administrative Agent may, without notice to or demand upon the
Parent Guarantor and without affecting the liability of the
Parent Guarantor under this Guaranty, foreclose under any
mortgage by nonjudicial sale, and the Parent Guarantor hereby
waives any defense to the recovery by the Administrative Agent
and the other Lender Parties against the Parent Guarantor of any
deficiency after such nonjudicial sale and any defense or
benefits that may be afforded by applicable law.
(e) The Parent Guarantor hereby unconditionally and
irrevocably waives any duty on the part of the Administrative
Agent or any Lender Party to disclose to the Parent Guarantor any
matter, fact or thing relating to the business, condition
(financial or otherwise), operations, performance, properties or
prospects of any other Loan Party or any of its Subsidiaries now
or hereafter known by the Administrative Agent or any Lender
Party.
(f) The Parent Guarantor acknowledges that it will
receive substantial direct and indirect benefits from the
financing arrangements contemplated by the Loan Documents and
that the waivers set forth in Section 7.02 and this Section 7.03
are knowingly made in contemplation of such benefits.
SECTION 7.04 Payments Free and Clear of Taxes, Etc
. (a) Any and all payments made by the Parent
Guarantor under or in respect of this Guaranty or any other Loan
Document shall be made, in accordance with Section 2.12, free and
clear of and without deduction for any and all present or future
Taxes and subject to the limitations set forth herein. If the
Parent Guarantor shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder to any Lender
Party or the Administrative Agent, (i) the sum payable by the
Parent Guarantor by the Parent Guarantor shall be increased as
may be necessary so that after the Parent Guarantor and the
Administrative Agent have made all required deductions (including
deductions applicable to additional sums payable under this
Section 7.04) such Lender Party or the Administrative Agent (as
the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Parent
Guarantor shall make such deductions and (iii) the Parent
Guarantor shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with
applicable law.
(b) In addition, the Parent Guarantor agrees to pay
any present or future Other Taxes that arise from any payment
made under or in respect of this Guaranty or any other Loan
Document or from the execution, delivery or registration of,
performance under, or otherwise with respect to, this Guaranty
and the other Loan Documents.
(c) The Parent Guarantor will indemnify each Lender
Party and the Agents for the full amount of Taxes or Other Taxes
and for the full amount of taxes of any kind imposed by any
jurisdiction on amounts payable under this Section 7.04, imposed
on or paid by such Lender Party or Agent and any liability
(including, without limitation, any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this Section) paid
by such Lender Party or any Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be
made within 30 days from the date such Lender Party or such Agent
(as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of
Taxes by or on behalf of the Parent Guarantor, the Parent
Guarantor shall furnish to the Administrative Agent, at its
address referred to in Section 9.02, the original or a certified
copy of a receipt evidencing such payment. In the case of any
payment hereunder by or on behalf of the Parent Guarantor through
an account or branch outside the United States or by or on behalf
of the Parent Guarantor by a payor that is not a United States
person, if the Parent Guarantor determines that no Taxes are
payable in respect thereof, the Parent Guarantor shall furnish,
or shall cause such payor to furnish, to the Administrative
Agent, at such address, an opinion of counsel acceptable to the
Administrative Agent stating that such payment is exempt from
Taxes. For purposes of subsections (d) and (e) of this
Section 5, the terms "United States" and "United States person"
shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
(e) Without prejudice to the survival of any other
agreement of the Parent Guarantor hereunder, the agreements and
obligations of the Parent Guarantor contained in Section 7.01(a)
(with respect to enforcement expenses), the last sentence of
Section 7.02 and this Section 7.04 shall survive the payment in
full of the Guaranteed Obligations and all other amounts payable
under this Guaranty.
SECTION 7.05 Continuing Guaranty; Assignments
. This Guaranty is a continuing guaranty and shall (a)
remain in full force and effect until the latest of (i) the cash
payment in full of the Guaranteed Obligations and all other
amounts payable under this Guaranty, (ii) the Termination Date
and (iii) the latest date of expiration or termination of all
Letters of Credit, (b) be binding upon the Parent Guarantor, its
successors and assigns and (c) inure to the benefit of and be
enforceable by the Lender Parties, the Administrative Agent and
their successors, transferees and assigns. Without limiting the
generality of the foregoing clause (c), any Lender Party may
assign or otherwise transfer all or any portion of its rights and
obligations hereunder (including, without limitation, all or any
portion of its Commitment, the Advances owing to it and the Note
or Notes held by it) to any other Person, and such other Person
shall thereupon become vested with all the benefits in respect
thereof granted to such Lender herein or otherwise, in each case
as provided in Section 9.07. The Parent Guarantor shall not have
the right to assignment rights hereunder or any interest herein
without the prior written consent of the Administrative Agent.
SECTION 7.06 Subrogation
. The Parent Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now or
hereafter acquire against the Borrower, any Loan Party or any
other insider guarantor that arise from the existence, payment,
performance or enforcement of the Parent Guarantor's Obligations
under this Agreement or any other Loan Document, including,
without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Administrative Agent or
any Lender Party against the Borrower or any other insider
guarantor or any Collateral, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law,
including, without limitation, the right to take or receive from
the Borrower, any Loan Party or any other insider guarantor,
directly or indirectly, in cash or other property or by set-off
or in any other manner, payment or security on account of such
claim, remedy or right, unless and until all of the Guaranteed
Obligations and all other amounts payable under this Guaranty
shall have been paid in full in cash, all Letters of Credit shall
have expired or been terminated and the Commitments shall have
expired or terminated. If any amount shall be paid to the Parent
Guarantor in violation of the preceding sentence at any time
prior to the latest of (a) the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this
Guaranty, (b) the Termination Date and (c) the latest date of
expiration or termination of all Letters of Credit, such amount
shall be received and held in trust for the benefit of the
Administrative Agent and the Lender Parties, shall be segregated
from other property and funds of the Parent Guarantor and shall
forthwith be paid to the Administrative Agent in the same form as
so received (with any necessary endorsement or assignment) to be
credited and applied to the Guaranteed Obligations and all other
amounts payable under this Guaranty, whether matured or
unmatured, in accordance with the terms of the Loan Documents, or
to be held as Collateral for any Guaranteed Obligations or other
amounts payable under this Guaranty thereafter arising. If
(i) the Parent Guarantor shall make payment to the Administrative
Agent or any Lender Party of all or any part of the Guaranteed
Obligations, (ii) all of the Guaranteed Obligations and all other
amounts payable under this Guaranty shall be paid in full in
cash, (iii) the Termination Date shall have occurred and (iv) all
Letters of Credit shall have been expired or been terminated, the
Administrative Agent and the Lender Parties will, at the Parent
Guarantor's request and expense, execute and deliver to the
Parent Guarantor appropriate documents, without recourse and
without representation or warranty, necessary to evidence the
transfer by subrogation to the Parent Guarantor of an interest in
the Guaranteed Obligations resulting from such payment by the
Parent Guarantor.
SECTION 7.07 Subordination
. The Parent Guarantor hereby subordinates any and all
debts, liabilities and other Obligations owed to the Parent
Guarantor by each Loan Party (the "Subordinated Obligations") to
the Guaranteed Obligations to the extent and in the manner
hereinafter set forth in this Section 7.07:
(a) Prohibited Payments, Etc. Except during the
continuance of an Event of Default, the Parent Guarantor may
receive regularly scheduled payments from any Loan Party on
account of the Subordinated Obligations. After the occurrence
and during the continuance of any Event of Default, however,
unless the Administrative Agent otherwise agrees, the Parent
Guarantor shall not demand, accept or take any action to collect
any payment on account of the Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In these
Cases relating to any Loan Party, the Parent Guarantor agrees
that the Secured Parties shall be entitled to receive payment in
full in cash of all Guaranteed Obligations before the Parent
Guarantor receives payment of any Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the
continuance of any Event of Default, the Parent Guarantor shall,
if the Administrative Agent so requests, collect, enforce and
receive payments on account of the Subordinated Obligations as
trustee for the Lender Parties and deliver such payments to the
Administrative Agent on account of the Guaranteed Obligations,
together with any necessary endorsements or other instruments of
transfer, but without reducing or affecting in any manner the
liability of the Parent Guarantor under the other provisions of
this Guaranty.
(d) Administrative Agent Authorization. After the
occurrence and during the continuance of any Event of Default,
the Administrative Agent is authorized and empowered, in its
discretion, (i) in the name of the Parent Guarantor, to collect
and enforce, and to submit claims in respect of, Subordinated
Obligations and to apply any amounts received thereon to the
Guaranteed Obligations (including any and all Post Petition
Interest), and (ii) to require the Parent Guarantor (A) to
collect and enforce, and to submit claims in respect of,
Subordinated Obligations and (B) to pay any amounts received on
such obligations to the Administrative Agent for application to
the Guaranteed Obligations.
ARTICLE 8
THE AGENTS
SECTION 8.01 Authorization and Action
. Each Lender Party (in its capacities as a Lender,
the Swing Line Bank (if applicable), the Issuing Bank (if
applicable)) hereby appoints and authorizes each Agent to take
such action as agent on its behalf and to exercise such powers
and discretion under this Agreement and the other Loan Documents
as are delegated to such Agent by the terms hereof and thereof,
together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for
by the Loan Documents (including, without limitation, enforcement
or collection of the Notes), no Agent shall be required to
exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in
so acting or refraining from acting) upon the instructions of the
Required Lenders, and such instructions shall be binding upon all
Lender Parties and all holders of Notes; provided, however, that
no Agent shall be required to take any action that exposes such
Agent to personal liability or that is contrary to this Agreement
or applicable law. Each Agent agrees to give to each Lender
Party prompt notice of each notice given to it by the Parent
Guarantor or the Borrower pursuant to the terms of this
Agreement.
SECTION 8.02 Agents' Reliance, Etc
. Neither any Agent nor any of their respective
directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in
connection with the Loan Documents, except for its or their own
gross negligence or willful misconduct. Without limitation of
the generality of the foregoing, each Agent: (a) may treat the
payee of any Note as the holder thereof until, in the case of the
Administrative Agent, the Administrative Agent receives and
accepts an Assignment and Acceptance entered into by the Lender
that is the payee of such Note, as assignor, and an Eligible
Assignee, as assignee, or, in the case of any other Agent, such
Agent has received notice from the Administrative Agent that it
has received and accepted such Assignment and Acceptance, in each
case as provided in Section 9.07; (b) may consult with legal
counsel (including counsel for any Loan Party), independent
public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel,
accountants or experts; (c) makes no warranty or representation
to any Lender Party and shall not be responsible to any Lender
Party for any statements, warranties or representations (whether
written or oral) made in or in connection with the Loan
Documents; (d) shall not have any duty to ascertain or to inquire
as to the performance or observance of any of the terms,
covenants or conditions of any Loan Document on the part of any
Loan Party or to inspect the property (including the books and
records) of any Loan Party; (e) shall not be responsible to any
Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created
or purported to be created under or in connection with, any Loan
Document or any other instrument or document furnished pursuant
thereto; and (f) shall incur no liability under or in respect of
any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram,
telecopy or telex) believed by it to be genuine and signed or
sent by the proper party or parties.
SECTION 8.03 Citibank and Affiliates
. With respect to its Commitments, the Advances made
by it and the Notes issued to it, Citibank shall have the same
rights and powers under the Loan Documents as any other Lender
Party and may exercise the same as though it were not an Agent;
and the term "Lender Party" or "Lender Parties" shall, unless
otherwise expressly indicated, include Citibank in its individual
capacities. Citibank and its affiliates may accept deposits
from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any
kind of business with, any Loan Party, any of its Subsidiaries
and any Person who may do business with or own securities of any
Loan Party or any such Subsidiary, all as if Citibank were not an
Agent and without any duty to account therefor to the Lender
Parties.
SECTION 8.04 Lender Party Credit Decision
. Each Lender Party acknowledges that it has,
independently and without reliance upon any Agent or any other
Lender Party and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to
enter into this Agreement. Each Lender Party also acknowledges
that it will, independently and without reliance upon any Agent
or any other Lender Party and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action
under this Agreement.
SECTION 8.05 Indemnification
. (a) Each Lender Party severally agrees to indemnify
each Agent (to the extent not promptly reimbursed by the
Borrower) from and against such Lender Party's ratable share
(determined as provided below) of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted
against such Agent in any way relating to or arising out of the
Loan Documents or any action taken or omitted by such Agent under
the Loan Documents; provided, however, that no Lender Party shall
be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent's gross
negligence or willful misconduct as found in a final,
non-appealable judgment by a court of competent jurisdiction.
Without limitation of the foregoing, each Lender Party agrees to
reimburse each Agent promptly upon demand for its ratable share
of any costs and expenses (including, without limitation, fees
and expenses of counsel) payable by the Borrower under Section
9.04, to the extent that such Agent is not promptly reimbursed
for such costs and expenses by the Borrower.
(b) Each Lender Party severally agrees to indemnify
the Issuing Bank (to the extent not promptly reimbursed by the
Borrower) from and against such Lender Party's ratable share
(determined as provided below) of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted
against the Issuing Bank in any way relating to or arising out of
the Loan Documents or any action taken or omitted by the Issuing
Bank under the Loan Documents; provided, however, that no Lender
Party shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the
Issuing Bank's gross negligence or willful misconduct as found in
a final, non-appealable judgment by a court of competent
jurisdiction. Without limitation of the foregoing, each Lender
Party agrees to reimburse the Issuing Bank promptly upon demand
for its ratable share of any costs and expenses (including,
without limitation, fees and expenses of counsel) payable by the
Borrower under Section 9.04, to the extent that the Issuing Bank
is not promptly reimbursed for such costs and expenses by the
Borrower.
(c) For purposes of this Section 8.05, the Lender
Parties' respective ratable shares of any amount shall be
determined, at any time, according to the sum of (i) the
aggregate principal amount of the Advances outstanding at such
time and owing to the respective Lender Parties, (ii) their
respective Pro Rata Shares of the aggregate Available Amount of
all Letters of Credit outstanding at such time and (iii) their
respective Unused Working Capital Commitments at such time;
provided that the aggregate principal amount of Swing Line
Advances owing to the Swing Line Bank and of Letter of Credit
Advances owing to the Issuing Bank shall be considered to be owed
to the Working Capital Lenders ratably in accordance with their
respective Working Capital Commitments. The failure of any
Lender Party to reimburse any Agent or the Issuing Bank, as the
case may be, promptly upon demand for its ratable share of any
amount required to be paid by the Lender Parties to such Agent or
the Issuing Bank, as the case may be, as provided herein shall
not relieve any other Lender Party of its obligation hereunder to
reimburse such Agent or the Issuing Bank, as the case may be, for
its ratable share of such amount, but no Lender Party shall be
responsible for the failure of any other Lender Party to
reimburse such Agent or the Issuing Bank, as the case may be, for
such other Lender Party's ratable share of such amount. Without
prejudice to the survival of any other agreement of any Lender
Party hereunder, the agreement and obligations of each Lender
Party contained in this Section 8.05 shall survive the payment in
full of principal, interest and all other amounts payable
hereunder and under the other Loan Documents.
SECTION 8.06 Successor Agents
. Any Agent may resign as to any or all of the
Facilities at any time by giving written notice thereof to the
Lender Parties and the Borrower and may be removed as to all of
the Facilities at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required
Lenders shall have the right to appoint a successor Agent as to
such of the Facilities as to which such Agent has resigned or
been removed. If no successor Agent shall have been so appointed
by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving of
notice of resignation or the Required Lenders' removal of the
retiring Agent, then the retiring Agent may, on behalf of the
Lender Parties, appoint a successor Agent, which shall be a
commercial bank organized under the laws of the United States or
of any State thereof and having a combined capital and surplus of
at least $250,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent as to all of the Facilities
and, in the case of a successor Collateral Agent, upon the
execution and filing or recording of such financing statements,
or amendments thereto, and such other instruments or notices, as
may be necessary or desirable, or as the Required Lenders may
request, in order to continue the perfection of the Liens granted
or purported to be granted by the Collateral Documents, such
successor Agent shall succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties
and obligations under the Loan Documents. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent as to
less than all of the Facilities and, in the case of a successor
Collateral Agent, upon the execution and filing or recording of
such financing statements, or amendments thereto, and such
amendments or supplements to the Mortgages, and such other
instruments or notices, as may be necessary or desirable, or as
the Required Lenders may request, in order to continue the
perfection of the Liens granted or purported to be granted by the
Collateral Documents, such successor Agent shall succeed to and
become vested with all the rights, powers, discretion, privileges
and duties of the retiring Agent as to such Facilities, other
than with respect to funds transfers and other similar aspects of
the administration of Borrowings under such Facilities, issuances
of Letters of Credit (notwithstanding any resignation as Agent
with respect to the Letter of Credit Facility) and payments by
the Borrower in respect of such Facilities, and the retiring
Administrative Agent shall be discharged from its duties and
obligations under this Agreement as to such Facilities, other
than as aforesaid. If within 45 days after written notice is
given of the retiring Agent's resignation or removal under this
Section 8.06 no successor Agent shall have been appointed and
shall have accepted such appointment, then on such 45th day (i)
the retiring Agent's resignation or removal shall become
effective, (ii) the retiring Agent shall thereupon be discharged
from its duties and obligations under the Loan Documents and
(iii) the Required Lenders shall thereafter perform all duties of
the retiring Agent under the Loan Documents until such time, if
any, as the Required Lenders appoint a successor Agent as
provided above. After any retiring Agent's resignation or
removal hereunder as Agent as to any of the Facilities shall have
become effective, the provisions of this Article VII shall inure
to its benefit as to any actions taken or omitted to be taken by
it while it was Agent as to such Facilities under this Agreement.
SECTION 8.07 Other Agents
. Each Lender Party hereby acknowledges that any
other Lender Party designated as any "Agent" on the signature
pages hereof has no responsibilities or liability hereunder other
than in its capacity as a Lender.
ARTICLE 9
MISCELLANEOUS
SECTION 9.01 Amendments, Etc
. (a) No amendment or waiver of any provision of this
Agreement or the Notes or any other Loan Document, nor consent to
any departure by any Loan Party therefrom, shall in any event be
effective unless the same shall be in writing and signed (or, in
the case of the Collateral Documents, consented to) by the
Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which given; provided, however, that (i) no
amendment, waiver or consent shall, unless in writing and signed
by all of the Lender Parties (other than any Lender Party that
is, at such time, a Defaulting Lender), do any of the following
at any time: (A) waive any of the conditions specified in
Section 3.01 or, in the case of the Initial Extension of Credit,
Section 3.02, (B) change the number of Lenders or the percentage
of (1) the Commitments, (2) the aggregate unpaid principal amount
of the Advances or (3) the aggregate Available Amount of
outstanding Letters of Credit that, in each case, shall be
required for the Lenders or any of them to take any action
hereunder, (C) reduce or limit the obligations of the Parent
Guarantor under Section 7.01 or of any Subsidiary Guarantor under
Section 1 of the Subsidiary Guaranty or otherwise limit such
Guarantor's liability with respect to the Obligations owing to
the Agents and the Lender Parties, (D) release all or
substantially all of the Collateral in any transaction or series
of related transactions or permit the creation, incurrence,
assumption or existence of any Lien on all or substantially all
of the Collateral in any transaction or series of related
transactions to secure any Obligations other than Obligations
owing to the Secured Parties under the Loan Documents, (E) amend
Section 2.13 or this Section 9.01, (F) increase the percentages
included in clauses (a), (b), (c) or (d) of the definition of
"Loan Value", (G) consent to any amendment or modification of the
Interim Order or the Final Order and (b) no amendment, waiver or
consent shall, unless in writing and signed by the Required
Lenders and each Lender (other than any Lender that is, at such
time, a Defaulting Lender) that has a Commitment under, or is
owed any amounts under or in respect of, the Term Facility or
Working Capital Facility if such Lender is directly affected by
such amendment, waiver or consent, (A) increase the Commitments
of such Lender, (B) reduce the principal of, or interest on, the
Notes held by such Lender or any fees or other amounts payable
hereunder to such Lender, (C) postpone any date fixed for any
payment of principal of, or interest on, the Notes held by such
Lender or any fees or other amounts payable hereunder to such
Lender, or (D) change the order of application of any prepayment
set forth in Section 2.06 in any manner that materially affects
such Lender; provided further that no amendment, waiver or
consent shall, unless in writing and signed by the Swing Line
Bank or the Issuing Bank, as the case may be, in addition to the
Lenders required above to take such action, affect the rights or
obligations of the Swing Line Bank or of the Issuing Bank, as the
case may be, under this Agreement; and provided further that no
amendment, waiver or consent shall, unless in writing and signed
by an Agent in addition to the Lenders required above to take
such action, affect the rights or duties of such Agent under this
Agreement or the other Loan Documents.
(b) If, in connection with any proposed amendment or
waiver of any of the provisions of this Agreement or any other
Loan Document as contemplated by Section 9.01(a) above, the
consent of the Required Lenders is obtained but the consent of
one or more of such other Lenders whose consent is not obtained,
then the Administrative Agent shall have the right to purchase
(and such Lender shall sell) the interest of each such
non-consenting Lender, together with accrued and unpaid interest,
and assume each such Lender's Commitment.
SECTION 9.02 Notices, Etc
. All notices and other communications provided for
hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed
or delivered, if to the Parent Guarantor, the Borrower or any
other Loan Party, at the address or the Parent Guarantor at 10201
Main Street, Houston, Texas 77025, Attention: Principal Financial
Officer, with a copy to Corporate Counsel; if to any Initial
Lender or the Initial Issuing Bank, at its Domestic Lending
Office specified opposite its name on Schedule I hereto; if to
any other Lender Party, at its Domestic Lending Office specified
in the Assignment and Acceptance pursuant to which it became a
Lender Party; if to the Collateral Agent, at its address at 399
Park Avenue, New York, New York 10043, Attention: Michael Schadt;
and if to the Administrative Agent, at its address at 399 Park
Avenue, New York, New York 10043, Attention: Michael Schadt; or,
as to the Parent Guarantor, the Borrower or the Administrative
Agent, at such other address as shall be designated by such party
in a written notice to the other parties and, as to each other
party, at such other address as shall be designated by such party
in a written notice to the Borrower and the Administrative Agent.
All such notices and communications shall, when mailed,
telegraphed, telecopied or telexed, be effective when deposited
in the mails, delivered to the telegraph company, transmitted by
telecopier or confirmed by telex answerback, respectively, except
that notices and communications to any Agent pursuant to
Article II, III or VIII shall not be effective until received by
such Agent. Delivery by telecopier of an executed counterpart of
a signature page to any amendment or waiver of any provision of
this Agreement or the Notes or of any Exhibit hereto to be
executed and delivered hereunder shall be effective as delivery
of an original executed counterpart thereof.
SECTION 9.03 No Waiver; Remedies
. No failure on the part of any Lender Party or any
Agent to exercise, and no delay in exercising, any right
hereunder or under any Note or any other Loan Document shall
operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 9.04 Costs and Expenses
. (a) The Borrower agrees to pay on demand (i) all
reasonable costs and expenses of each Agent in connection with
the preparation, execution, delivery, administration,
modification and amendment of, or any consent or waiver under the
Loan Documents (including, without limitation, (A) all due
diligence, collateral review, syndication, transportation,
computer, duplication, appraisal, audit, insurance, consultant,
search, filing and recording fees and expenses and (B) the
reasonable fees and expenses of counsel for each Agent with
respect thereto, with respect to advising such Agent as to its
rights and responsibilities, or the perfection, protection or
preservation of rights or interests, under the Loan Documents and
the Interim Order and the Final Order, with respect to
negotiations with any Loan Party or with other creditors of any
Loan Party or any of its Subsidiaries arising out of any Default
or any events or circumstances that may give rise to a Default
and with respect to any review of pleadings and documents related
to the Cases, attendance at meetings related to the Cases,
general monitoring of the Cases and any subsequent Chapter 7
case, and (ii) all costs and expenses of each Agent and each
Lender Party in connection with the enforcement of the Loan
Documents and the Interim Order and the Final Order, whether in
any action, suit or litigation, any bankruptcy, insolvency or
other similar proceeding affecting creditors' rights generally
(including, without limitation, the reasonable fees and expenses
of counsel for the Administrative Agent and each Lender Party
with respect thereto).
(b) The Borrower agrees to indemnify and hold harmless
each Agent, each Lender Party and each of their Affiliates and
their officers, directors, employees, agents and advisors (each,
an "Indemnified Party") from and against any and all claims,
damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel) that may be
incurred by or asserted or awarded against any Indemnified Party,
in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any
investigation, litigation or proceeding or preparation of a
defense in connection therewith) (i) the Facilities, the actual
or proposed use of the proceeds of the Advances or the Letters of
Credit, the Transaction Documents or any of the transactions
contemplated thereby or (ii) the actual or alleged presence of
Hazardous Materials on any property of any Loan Party or any of
its Subsidiaries or any Environmental Action relating in any way
to any Loan Party or any of its Subsidiaries, except to the
extent such claim, damage, loss, liability or expense is found in
a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the
indemnity in this Section 9.04(b) applies, such indemnity shall
be effective whether or not such investigation, litigation or
proceeding is brought by any Loan Party, its directors,
shareholders or creditors or an Indemnified Party or any other
Person whether or not or any Indemnified Party is otherwise a
party thereto and whether or not the transactions contemplated by
the Transaction Documents are consummated. The Borrower also
agrees not to assert any claim against any Agent, any Lender
Party or any of their Affiliates, or any of their respective
officers, directors, employees, attorneys and agents, on any
theory of liability, for special, indirect, consequential or
punitive damages arising out of or otherwise relating to the
Facilities, the actual or proposed use of the proceeds of the
Advances or the Letters of Credit, the Transaction Documents or
any of the transactions contemplated by the Transaction
Documents.
(c) If any payment of principal of, or Conversion of,
any Eurodollar Rate Advance is made by the Borrower to or for the
account of a Lender Party other than on the last day of the
Interest Period for such Advance, as a result of a payment or
Conversion pursuant to Section 2.06, 2.09(b)(i) or 2.10(d),
acceleration of the maturity of the Notes pursuant to
Section 6.01 or for any other reason, or if the Borrower fails to
make any payment or prepayment of an Advance for which a notice
of prepayment has been given or that is otherwise required to be
made, whether pursuant to Section 2.04, 2.06 or 6.01 or
otherwise, the Borrower shall, upon demand by such Lender Party
(with a copy of such demand to the Administrative Agent), pay to
the Administrative Agent for the account of such Lender Party any
amounts required to compensate such Lender Party for any
additional losses, costs or expenses that it may reasonably incur
as a result of such payment or such failure to pay or prepay, as
the case may be, including, without limitation, any loss, cost or
expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender Party to fund or
maintain such Advance.
(d) If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document,
including, without limitation, fees and expenses of counsel and
indemnities, such amount may be paid on behalf of such Loan Party
by the Administrative Agent or any Lender Party, in its sole
discretion.
(e) Without prejudice to the survival of any other
agreement of any Loan Party hereunder or under any other Loan
Document, the agreements and obligations of the Borrower
contained in Sections 2.10 and 2.12 and this Section 9.04 shall
survive the payment in full of principal, interest and all other
amounts payable hereunder and under any of the other Loan
Documents.
SECTION 9.05 Right of Set-off
. Upon (a) the occurrence and during the continuance
of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize
the Administrative Agent to declare the Notes due and payable
pursuant to the provisions of Section 6.01, each Agent and each
Lender Party and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and otherwise apply any and
all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing
by such Agent, such Lender Party or such Affiliate to or for the
credit or the account of the Parent Guarantor or any Borrower
against any and all of the Obligations of the Parent Guarantor or
the Borrower now or hereafter existing under the Loan Documents,
irrespective of whether such Agent or such Lender Party shall
have made any demand under this Agreement or such Note or Notes
and although such obligations may be unmatured. Each Agent and
each Lender Party agrees promptly to notify the Parent Guarantor
or the Borrower after any such set-off and application; provided,
however, that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of each
Agent and each Lender Party and their respective Affiliates under
this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that
such Agent, such Lender Party and their respective Affiliates may
have.
SECTION 9.06 Binding Effect
. This Agreement shall become effective when it shall
have been executed by the Borrower, the Parent Guarantor and each
Agent and the Administrative Agent shall have been notified by
each Initial Lender and the Initial Issuing Bank that such
Initial Lender and the Initial Issuing Bank has executed it and
thereafter shall be binding upon and inure to the benefit of the
Borrower, the Parent Guarantor, each Agent and each Lender Party
and their respective successors and assigns, except that no
Borrower shall have the right to assign its rights hereunder or
any interest herein without the prior written consent of the
Lender Parties.
SECTION 9.07 Assignments and Participations
. (a) Each Lender may and, so long as no Default has
occurred and is continuing, if demanded by the Borrower
(following a demand by such Lender pursuant to Section 2.10 or
2.12) upon at least 10 Business Days' notice to such Lender and
the Administrative Agent, will assign to one or more Eligible
Assignees all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion
of its Commitment or Commitments, the Advances owing to it and
the Note or Notes held by it); provided, however, that (i) each
such assignment shall be of a uniform, and not a varying,
percentage of all rights and obligations under and in respect of
all of the Facilities, (ii) except in the case of an assignment
to a Person that, immediately prior to such assignment, was a
Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the aggregate amount of the
Commitments being assigned to such Eligible Assignee pursuant to
such assignment (determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall in no event be
less than $5,000,000 under each Facility for which a Commitment
is being assigned, (iii) each such assignment shall be to an
Eligible Assignee, (iv) each such assignment made as a result of
a demand by the Borrower pursuant to this Section 9.07(a) shall
be arranged by the Borrower after consultation with the
Administrative Agent and shall be either an assignment of all of
the rights and obligations of the assigning Lender under this
Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or
other such assignments that together cover all of the rights and
obligations of the assigning Lender under this Agreements, (v) no
Lender shall be obligated to make any such assignment as a result
of a demand by the Borrower pursuant to this Section 9.07(a)
unless and until such Lender shall have received one or more
payments from either the Borrower or one or more Eligible
Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such
Lender, together with accrued interest thereon to the date of
payment of such principal amount and all other amounts payable to
such Lender under this Agreement, (vi) no such assignments shall
be permitted without the consent of the Administrative Agent
until the Administrative Agent shall have notified the Lender
Parties that syndication of the Commitments hereunder has been
completed, and (v) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and
Acceptance, together with any Note or Notes subject to such
assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in such
Assignment and Acceptance, (x) the assignee thereunder shall be a
party hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment
and Acceptance, have the rights and obligations of a Lender or
Issuing Bank, as the case may be, hereunder and (y) the Lender or
Issuing Bank assignor thereunder shall, to the extent that rights
and obligations hereunder have been assigned by it pursuant to
such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the
remaining portion of an assigning Lender's or Issuing Bank's
rights and obligations under this Agreement, such Lender or
Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and
Acceptance, each Lender Party assignor thereunder and each
assignee thereunder confirm to and agree with each other and the
other parties thereto and hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender
Party makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with any Loan Document
or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to
be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant thereto;
(ii) such assigning Lender Party makes no representation or
warranty and assumes no responsibility with respect to the
financial condition of any Loan Party or the performance or
observance by any Loan Party of any of its obligations under any
Loan Document or any other instrument or document furnished
pursuant thereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently
and without reliance upon any Agent, such assigning Lender Party
or any other Lender Party and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes
each Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Loan Documents as
are delegated to such Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance
with their terms all of the obligations which by the terms of
this Agreement are required to be performed by it as a Lender or
Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its
address referred to in Section 9.02 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lender Parties and
the Commitment under each Facility of, and principal amount of
the Advances owing under each Facility to, each Lender Party from
time to time (the "Register"). The entries in the Register shall
be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Agents and the Lender Parties may
treat each Person whose name is recorded in the Register as a
Lender Party hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any
Lender Party at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender Party and an assignee, together
with any Note or Notes subject to such assignment, the
Administrative Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give
prompt notice thereof to the Borrower and each other Agent. In
the case of any assignment by a Lender, within five Business Days
after its receipt of such notice, the Borrower, at its own
expense, shall execute and deliver to the Administrative Agent in
exchange for the surrendered Note or Notes a new Note to the
order of such Eligible Assignee in an amount equal to the
Commitment assumed by it under each Facility pursuant to such
Assignment and Acceptance and, if any assigning Lender has
retained a Commitment hereunder under such Facility, a new Note
to the order of such assigning Lender in an amount equal to the
Commitment retained by it hereunder. Such new Note or Notes
shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note or Notes, shall be
dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibit A-1 or A-
2, as applicable, hereto.
(f) The Issuing Bank may assign to an Eligible
Assignee all of its rights and obligations under the undrawn
portion of its Letter of Credit Commitment at any time; provided,
however, that (i) each such assignment shall be to an Eligible
Assignee and (ii) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and
Acceptance, together with a processing and recordation fee of
$3,500.
(g) Each Lender Party may sell participations to one
or more Persons (other than any Loan Party or any of its
Affiliates) in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation,
all or a portion of its Commitments, the Advances owing to it and
the Note or Notes (if any) held by it); provided, however, that
(i) such Lender Party's obligations under this Agreement
(including, without limitation, its Commitments) shall remain
unchanged, (ii) such Lender Party shall remain solely responsible
to the other parties hereto for the performance of such
obligations, (iii) such Lender Party shall remain the holder of
any such Note for all purposes of this Agreement, (iv) the
Borrower, the Agents and the other Lender Parties shall continue
to deal solely and directly with such Lender Party in connection
with such Lender Party's rights and obligations under this
Agreement and (v) no participant under any such participation
shall have any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any departure
by any Loan Party therefrom, except to the extent that such
amendment, waiver or consent would reduce the principal of, or
interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such
participation, postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to
such participation, or release all or substantially all of the
Collateral.
(h) Any Lender Party may, in connection with any
assignment or participation or proposed assignment or
participation pursuant to this Section 9.07, disclose to the
assignee or participant or proposed assignee or participant, any
information relating to the Parent Guarantor or the Borrower
furnished to such Lender Party by or on behalf of the Borrower;
provided, however, that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall
agree to preserve the confidentiality of any Confidential
Information received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in
this Agreement, any Lender Party may at any time create a
security interest in all or any portion of its rights under this
Agreement (including, without limitation, the Advances owing to
it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System.
(j) Notwithstanding anything to the contrary contained
herein, any Lender that is a fund that invests in bank loans may
create a security interest in all or any portion of the Advances
owing to it and the Note or Notes held by it to the trustee for
holders of obligations owed, or securities issued, by such fund
as security for such obligations or securities, provided that
unless and until such trustee actually becomes a Lender in
compliance with the other provisions of this Section 9.07, (i) no
such pledge shall release the pledging Lender from any of its
obligations under the Loan Documents and (ii) such trustee shall
not be entitled to exercise any of the rights of a Lender under
the Loan Documents even though such trustee may have acquired
ownership rights with respect to the pledged interest through
foreclosure or otherwise.
(k) Notwithstanding anything to the contrary contained
herein, any Lender Party (a "Granting Lender") may grant to a
special purpose funding vehicle identified as such in writing
from time to time by the Granting Lender to the Administrative
Agent and the Borrower (an "SPC") the option to provide all or
any part of any Advance that such Granting Lender would otherwise
be obligated to make pursuant to this Agreement, provided that
(i) nothing herein shall constitute a commitment by any SPC to
fund any Advance, and (ii) if an SPC elects not to exercise such
option or otherwise fails to make all or any part of such
Advance, the Granting Lender shall be obligated to make such
Advance pursuant to the terms hereof. The making of an Advance
by an SPC hereunder shall utilize the Commitment of the Granting
Lender to the same extent, and as if, such Advance were made by
such Granting Lender. Each party hereto hereby agrees that (i)
no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement for which a Lender Party would be
liable, (ii) no SPC shall be entitled to the benefits of Sections
2.10 and 2.12 (or any other increased costs protection provision)
and (iii) the Granting Bank shall for all purposes, including,
without limitation, the approval of any amendment or waiver of
any provision of any Loan Document, remain the Lender Party of
record hereunder. Notwithstanding anything to the contrary
contained in this Agreement, any SPC may (i) with notice to, but
without prior consent of, the Borrower and the Administrative
Agent and with the payment of a processing fee of $500, assign
all or any portion of its interest in any Advance to the Granting
Lender and (ii) disclose on a confidential basis any non-public
information relating to its funding of Advances to any rating
agency, commercial paper dealer or provider of any surety or
guarantee or credit or liquidity enhancement to such SPC. This
subsection (k) may not be amended without the prior written
consent of each Granting Lender, all or any part of whose
Advances are being funded by the SPC at the time of such
amendment.
SECTION 9.08 Execution in Counterparts
. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement. Delivery by telecopier of an
executed counterpart of a signature page to this Agreement shall
be effective as delivery of an original executed counterpart of
this Agreement.
SECTION 9.09 No Liability of the Issuing Bank
. The Borrower assumes all risks of the acts or
omissions of any beneficiary or transferee of any Letter of
Credit with respect to its use of such Letter of Credit. Neither
the Issuing Bank nor any of its officers or directors shall be
liable or responsible for: (a) the use that may be made of any
Letter of Credit or any acts or omissions of any beneficiary or
transferee in connection therewith; (b) the validity, sufficiency
or genuineness of documents, or of any endorsement thereon, even
if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by the
Issuing Bank against presentation of documents that do not comply
with the terms of a Letter of Credit, including failure of any
documents to bear any reference or adequate reference to the
Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit,
except that the Borrower shall have a claim against the Issuing
Bank, and the Issuing Bank shall be liable to the Borrower, to
the extent of any direct, but not consequential, damages suffered
by the Borrower that the Borrower proves were caused by (i) the
Issuing Bank's willful misconduct or gross negligence as
determined in a final, non-appealable judgment by a court of
competent jurisdiction in determining whether documents presented
under any Letter of Credit comply with the terms of the Letter of
Credit or (ii) the Issuing Bank's willful failure to make lawful
payment under a Letter of Credit after the presentation to it of
a draft and certificates strictly complying with the terms and
conditions of the Letter of Credit. In furtherance and not in
limitation of the foregoing, the Issuing Bank may accept
documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any
notice or information to the contrary.
SECTION 9.10 Release of Collateral
. Upon the sale, lease, transfer or other disposition
of any item of Collateral of any Loan Party in accordance with
the terms of the Loan Documents, the Collateral Agent will, at
the Borrower's expense, execute and deliver to such Loan Party
such documents as such Loan Party may reasonably request to
evidence the release of such item of Collateral from the
assignment and security interest granted under the Collateral
Documents in accordance with the terms of the Loan Documents.
SECTION 9.11 Jurisdiction, Etc
. (a) Each of the parties hereto hereby irrevocably
and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Bankruptcy Court or of any New
York State court or federal court of the United States of America
sitting in New York City, and any appellate court from any
thereof, in any action or proceeding arising out of or relating
to this Agreement or any of the other Loan Documents to which it
is a party, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in the
Bankruptcy Court or in any such New York State court or, to the
extent permitted by law, in such federal court. Each of the
parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or any of the other Loan
Documents in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any of the other
Loan Documents to which it is a party in the Bankruptcy Court or
in any New York State or federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
SECTION 9.12 Governing Law
. This Agreement and the Notes shall be governed by,
and construed in accordance with, the laws of the State of
New York and, to the extent applicable, the Bankruptcy Code.
SECTION 9.13 Waiver of Jury Trial
. Each of the Parent Guarantor, the Borrower, the
Agents and the Lender Parties irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether
based on contract, tort or otherwise) arising out of or relating
to any of the Loan Documents, the Advances or the actions of any
Agent or any Lender Party in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
SPECIALITY RETAILERS, INC.,
as Borrower
By: /s/ John Wiesner
Title: Chief Executive Officer
STAGE STORES, INC.,
as Parent Guarantor
By: /s/ John Wiesner
Title: Chief Executive Officer
CITICORP USA, INC.,
as Administrative Agent
By: /s/ Claudia Slacik
Title: Managing Director
CITICORP USA, INC.,
as Collateral Agent
By: /s/ Claudia Slacik
Title: Managing Director
Initial Lenders
CITIBANK, N.A.
By: /s/ Claudia Slacik
Title: Managing Director
Initial Issuing Bank
CITIBANK, N.A.
By: /s/ Claudia Slacik
Title: Managing Director
Swing Line Bank
CITIBANK, N.A.
By: /s/ Claudia Slacik
Title: Managing Director
SCHEDULES
TO THAT CERTAIN DEBTOR-IN-POSSESSION CREDIT AGREEMENT
DATED AS OF JUNE 2, 2000,
BY AND AMONG
SPECIALTY RETAILERS, INC., A TEXAS CORPORATION, AS BORROWER
STAGE STORES, INC., A DELAWARE CORPORATION, AS PARENT GUARANTOR
ARTICLE 10 CITIBANK, AS INITIAL LENDER,
CITIBANK, AS INITIAL ISSUING BANK,
CITIBANK, AS SWING LINE BANK,
CITICORP USA, INC. AS COLLATERAL AGENT AND
AND
ARTICLE 11 CITICORP USA, INC. AS ADMINISTRATIVE AGENT
Note: The information set forth in the following Schedules
is cumulative in effect such that information set forth on one
Schedule will be deemed, where appropriate, to have been set
forth on each and every of the following Schedules, whether or
not specifically set forth therein. Any capitalized term not
otherwise expressly defined in the following Schedules shall
have the meaning assigned to such term in that certain Debtor-
In-Possession Credit Agreement dated as of June 2, 2000, by
and among Specialty Retailers, Inc. as Borrower, Stage Stores,
Inc. as Parent Guarantor, Citibank as Initial Lender, Citibank
as Initial Issuing Bank, Citibank as Swing Line Bank, and
Citicorp USA, Inc. as Collateral Agent and Administrative
Agent (the "Credit Agreement").
SCHEDULE I
COMMITMENTS AND APPLICABLE LENDING OFFICES
Working Letter Domestic Eurodollar
Na Capital Term of Lending Lending
me Commitmen Commitme Credit Office Office
of t nt Commitme
In nt
it
ia
l
Le
nd
er
Ci $300,000, $150,000 $40,000, 1 Penn's Way 1 Penn's Way
ti 000 ,000 000 New Castle, DE New Castle, DE
ba 19720 19720
nk Attn: Anne Attn: Anne
, Marie Pavco Marie Pavco
N. Tel: (302) 894- Tel: (302) 894-
A. 6010 6010
Fax: (302) 894- Fax: (302) 894-
6120 6120
SCHEDULE II
Borrower's Account with Citibank.
Account Number 30430212 in the name of Specialty Retailers, Inc.
SCHEDULE III
Eligible Real Property.
See Schedule 4.01(u)
SCHEDULE IV
GOB Stores.
See Schedule 4.01(u) and Schedule 4.01(v).
SCHEDULE 3.01(a)(vii)
States in which each Loan Party is duly qualified and in good
standing as a foreign corporation.
Specialty Retailers, Inc.
Alabama Arizona Arkansas Colorado
Florida Georgia Illinois Indiana
Iowa Kansas Louisiana Maryland
Michigan Minnesota Mississippi Missouri
Montana Nebraska Nevada New Mexico
New York North Dakota Ohio Oklahoma
Oregon Pennsylvania South Carolina South Dakota
Texas Virginia Washington West Virginia
SECTION 11.01Wyoming
Wisconsin
Specialty Retailers, Inc. (NV)
SECTION 11.02 South Dakota
SCHEDULE 4.01(b)
All Subsidiaries of each Loan Party and their respective
jurisdictions of organization, number of authorized and
outstanding capital stock, percentage of ownership owned by each
Loan Party, and number of shares covered by stock options,
warrants, rights of conversion and similar rights.
Common Stock Preferred Stock Shares
State Percentag Subject
ARTICLE 12 of e of to
NAME OF Organi Ownership Option,
SUBSIDIARY zation Warrant
or
Similar
Rights
(a)(b)
SECTION SECTIO AuthoriOutsta
12.01 N zed nding
Authori 12.02
zed Outsta
nding
Specialty Texas 100,000 5,000 0 0 Stage 0
Retailers, Inc. ($0.01 Stores,
par Inc.
value) (100%)
Specialty Nevada 1,000 1,000 0 0 Stage 0
Retailers, Inc. ($0.01 Stores,
(NV) par Inc.
value) (100%)
SRI Receivables Delawa 1,000 1,000 0 0 Specialty 0
Purchase Co., re ($0.01 Retailers
Inc. par , Inc.
value) (100%)
Granite National Ohio 100,000 50,000 0 0 Specialty 0
Bank ($20.00 Retailers
par , Inc.
value) (NV)
(100%)
SCHEDULE 4.01(d)
List of any Governmental Authorization, notice to or filing with
any Governmental Authority or third party which is required for
the execution, delivery, performance under or consummation of any
transaction or Transaction Documents by any Loan Party, the,
grant of any Lien by any Loan Party or the perfection or
maintenance of such Lien, or the exercise of any right or remedy
by Agent or any Lender Party.
None
SCHEDULE 4.01(f)
List of any action, suit, investigation, litigation or
proceeding, including any Environmental Action, affecting any
Loan Party or Subsidiary, pending or threatened before any
Governmental Authority which would be reasonably likely to have a
Material Adverse Effect or affect the legality, validity or
enforceability of any Transaction Document or consummation of
transactions contemplated thereby.
Although no Loan Party is aware of any action, suit,
investigation, litigation or proceeding, including any
Environmental Action, affecting any Loan Party or Subsidiary,
pending or threatened before any Governmental Authority which
would be reasonably likely to have a Material Adverse Effect or
affect the legality, validity or enforceability of any
Transaction Document or consummation of transactions contemplated
thereby, the nature and amount claimed or the allegations at
issue in the following lawsuits could have a Material Adverse
Effect if one or more of the same were resolved in a manner
adverse to a Loan Party:
1. Calah Cutrer, Jennifer Greeson, Delight Vanbrocklin, Kyle
Johnson, Lisa Hernandez, Deanna Amaya, Rene Pena and Maria
Nelson as Plaintiffs v. Stage Stores, Inc., Specialty
Retailers, Inc. and Mary Elizabeth Pena as Defendants filed
in the United States District Court for the Southern
District of Texas, Houston Division, as Civil Action H-00-
0955.
2. Counterclaim filed by Carl E. Tooker against Stage Stores,
Inc. in that certain lawsuit styled as Stage Stores, Inc. as
Plaintiff v. Carl E. Tooker as defendant, Counter-Plaintiff
and Third-Party Plaintiff v. John J. Wiesner, N. Martin
Stringer and McKinney & Stringer, P.C. as Third-Party
Defendants which was filed in the District Court of Harris
County, Texas as Case Number 2000-15666.
3. Lemelson Medical, Education & Research Foundation Limited
Partnership as Plaintiff v. COMPUSA, Inc., Stage Stores,
Inc., et al. as Defendants filed in the United States
District Court for the District of Arizona.
4. Class action filed by John C. Weld as Plaintiff v. Stage
Stores, Inc. et al as Defendants which was filed in the
United States District Court for the Southern District of
Texas, Houston Division, as Civil Action H-99-0957.
SCHEDULE 4.01(q)
List of each taxable year for any Loan Party or its Subsidiary or
Affiliate in which any federal income tax return has not been
filed or the expiration of any applicable statute of limitation
for assessment or collection has been extended.
Name of Entity Taxable Years Ending
Stage Stores, Inc. 01/31/98, 01/31/99,
01/31/00
Specialty Retailers, Inc. 01/31/98, 01/31/99,
01/31/00
Specialty Retailers, Inc. (NV) 01/31/98,
01/31/99, 01/31/00
SRI Receivables Purchase Co., Inc. 01/31/98, 01/31/99,
01/31/00
Granite National Bank 01/31/99, 01/31/00
SCHEDULE 4.01(s)
List of Existing Debt as of June 2, 2000, by category.
ARTICLE 13 Outstandi
ng Commitmen Matur Amortiz
ARTICLE 14 Type of Debt Principal t Amount ity ation
DEBTOR Amount Date Schedul
e
Specialty Working Capital $200,000, $200,000. 06/14 Various
Retailers, Inc. Facilities 000.00 00.00 /02
(guaranteed by
Stage Stores, Inc.)
Specialty Revolving Line of $29,950,0 $35,000,0 06/14 None
Retailers, Inc. Credit 00.00 00.00 /02
(guaranteed by
Stage Stores, Inc.)
Specialty 8.50% Senior $200,000, $200,000, 2005 None
Retailers, Inc. Notes 000.00 000.00
(guaranteed by
Stage Stores, Inc.)
Specialty 9.00% Senior $100,000, $100,000, 2007 None
Retailers, Inc. Notes 000.00 000.00
(guaranteed by
Stage Stores, Inc.)
Specialty 11.00% Series B $20,000.0 $20,000.0 2003 None
Retailers, Inc. Notes 0 0
Bealls Holding Subordinated $6,356,00 $6,356,00 2002 3 years
Notes 0.00 0.00
Bealls Holdings 7.00% Junior $7,507,00 $7,507,00 2003 Due at
Subordinated 0.00 0.00 maturit
Debentures y
FB Holdings 7.00% $2,161,00 $2,161,00 2000 Due at
Subordinated 0.00 0.00 maturit
Notes y
Bealls Holding Port Arthur $1,434,00 $1,434,00 2007 7 years
Industrial 0.00 0.00 remaini
Development ng
Revenue Bond
Stage Stores, Inc. Trade Payables $0.00 N/A Vario Various
us
Specialty Trade Payables $32,023,0 N/A Vario Various
Retailers, Inc. 00.00 us
Specialty Trade Payables $0.00 N/A Vario Various
Retailers, Inc. us
(NV)
Stage Stores, Inc. Payroll $0.00 N/A Vario Various
us
Specialty Payroll $17,769,0 N/A Vario Various
Retailers, Inc. 00.00 us
Specialty Payroll $0.00 N/A Vario Various
Retailers, Inc. us
(NV)
Stage Stores, Inc. Debt for Borrowed $0.00 N/A Vario Various
Money us
Specialty Debt for Borrowed $574,819, N/A Vario Various
Retailers, Inc. Money 000.00 us
Specialty Debt for Borrowed $0.00 N/A Vario Various
Retailers, Inc. Money us
(NV)
Stage Stores, Inc. Future Rent $0.00 N/A Vario Various
us
Specialty Future Rent $307,126, N/A Vario Various
Retailers, Inc. 000.00 us
Specialty Future Rent $0.00 N/A Vario Various
Retailers, Inc. us
(NV)
Stage Stores, Inc. Other $0.00 N/A Vario Various
us
Specialty Other $50,819,0 N/A Vario Various
Retailers, Inc. 00.00 us
Specialty Other $0.00 N/A Vario Various
Retailers, Inc. us
(NV)
SCHEDULE 4.01(t)
List of Surviving Debt with the outstanding
principal balance, aggregate commitment amount,
maturity date and amortization schedule.
See Schedule 4.01(s); provided that the Revolving Line
of Credit in the maximum commitment amount of $35,000,000 with
maturity on June 14, 2002, shall not be Surviving Debt.
SCHEDULE 4.01(u)
List of real property owned by any Loan Party and its Subsidiaries with the
street address, county, state, record owner, and book and estimated fair market
value.
Store #/Facility Street Address County Record Owner
Stage Distribution 506 Beall Blvd., Cherok Specialty Retailers
Center Jacksonville, TX 75766 ee Inc.
(f/k/a Beall
Properties, Inc.)
Stage Credit Facility 1020 Willowcreek Drive, Cherok Specialty Retailers,
Jacksonville, TX 75766 ee Inc.
(f/k/a Beall
Properties, Inc.)
Raw Land Jacksonville, Texas Cherok Specialty Retailers,
ee Inc.
#20 - Baytown San Jacinto Mall, Space Harris American National
4000, Baytown, TX 77521 Insurance Company
(Sale-Leaseback)
#32 - Killeen 2100 South W.S. Young Bell American National
Drive, Killeen, TX 76543 Insurance Company
(Sale-Leaseback)
#113 - Las Cruces 700 South Telshor, Las Dona American National
Cruces, NM 88001 Ana Insurance Company
(5000 Mesilla Valley (Sale-Leaseback)
Mall)
#7 - Jacksonville Hwy. 69 South, Cherok Specialty Retailers,
Jacksonville, TX 75766 ee Inc.
(Jacksonville Square II)
#500 - Denver 401 16th Street, Denver, Denver Congress
CO 80202 Developments, Ltd.
(Tremont Mall) (Ground Lease)
#160 - Lubbock 6002 Slide Rd., Lubbock, Lubboc Macerich Lubbuck
TX 79414 k Limited Partnership
(South Plains Mall) Ground Lease)
#363 - Lake Charles 4066 Ryan Street, Lake Calcas Weingarten/Finger
Charles, LA, 70601 ieu Venture
(Ground Lease)
#120 - Port Arthur * 3100 FM 365, #57, Port Jeffer Central Mal - JV
Arthur, Texas 77640 son (Ground Lease)
* This property is subject to an industrial revenue bond and shall not be
mortgaged pursuant to Section 5.01(q) or any other provision of the Agreement.
SCHEDULE 4.01(v)
List of real property leased by any Loan Party and its Subsidiaries with the
street address, county, state, lessor, lessee, expiration date and annual rental
cost.
Lease
Stor Street Address County Expirat Lessor gibl
e # ion
0001 2317 Hwy 79 South, Henderson Rusk 31-Dec- Henderson Plaza
TX 75654 02 Shopping Center
0002 1122 N. University Drive, Nacogdoc 31-Jan- University Mall Realty,
Nacodoches, TX 75961 hes 09 Ltd
0003 626 South Jefferson, Mt. Titus 30-Jun- CenterAmerica Capital
Pleasant TX 75455 10 Partnership, LP
0004 1711 Loop 281 W-NW, Longview, Greg 28-Feb- Northwest Village
TX 75601 01 Assoc., Ltd
0005 2328 S. Brahma Parkway, Kleberg 31-Mar- Alpha Lake, Ltd
Kingsville, TX 78363 02
0006 106 Davis Street, Gilmer, TX Upshur 31-Dec- Elliott Dean
75644 01
0006 106 Davis Street, Gilmer, TX Upshur 31-Dec- Elliott Dean
A 75644 01
0008 3516 Lamar Avenue, Paris, TX Lamar 31-Jan- John C. Culpepper, Jr.
75460 02
0009 122 Austin Street, Center, TX Shelby 31-Jan- Polley Development
75935 05 Corp.
0010 Space #1015, Kilgore, TX 75662 Greg 31-Dec- Kilgore Plaza Shopping
00 Center Partnership
0011 4600 S. Medford Drive, Lufkin, Angelina 31-Dec- Lufkin Mall Management
TX 75901 15 Office
(#3000 Lufkin Mall)
0012 6834 Wesley, Greenville, TX Hunt 31-Jan- Crossroads Greenville
75401 03 Properties, Ltd.
(Crossroads Mall)
0013 1402 Mockingbird Lane, Sulphur Hopkins 31-Jan- Sulphur Springs Prop
Spring, TX 75482 04
0014 1300 Pinecrest Dr. E., Harrison 31-Jul- Marshall Mall Investors
Marshall, TX 75670 08
(#150 Marshall Mall)
0015 2000 Crockett, Palestine, TX Anderson 31-Jan- Biedenharn Realty
75801 09 Company, Inc
0016 730 N. Main, Vidor, TX 77662 Orange 30-Nov- Weingarten Realty
03 Management
0017 111 W. Sabine Street, Panola 31-Dec- Five Star Realty Inc.
Carthage, TX 75633 00
0019 1150 W. Dallas, Conroe, TX Montgome 31-Jan- Crossroads Shopping
77301 ry 10 Center
0020 Space #4000, Baytown, TX 77521 Harris 31-Mar- American National
07 Insurance Company
0021 2900 W. Washington Ave., Box Erath 31-Jan- Bosque River
#12, Stephenville, TX76401 05 Association
0022 707 Villa Maria, Bryan, TX Brazos 30-Sep- Stalworth Corp.
77802 00
0023 3500 McCann Road, Longview, TX Greg 31-Jan- Longview Mall Company
75601 04
0024 4800 Texoma Parkway, Sherman, Grayson 31-Jan- Sherman Mall Associates
TX 75090 02 Ltd.
(#900 Midway Mall)
0025 6301 NW Loop 410, San Antonio, Bexar 31-Jan- Ingram Park Mall
TX 78238 05
0026 228 Cove Terrace (Hwy 190), Coryell 30-Nov- Cove Terrace Associates
Copperas Cove, TX 76522 03 I, Ltd
0027 1023 N. Texas Blvd., Weslaco, Hidalgo 31-Jul- Palm Plaza Shopping
TX 78596 01 Center
0028 2801 Hwy. 180, Mineral Wells, Palo 31-Jan- Brazos Shopping Center
TX 76067 Pinto 05
(Suite 3.0 and 3.1)
0029 1004 E. Hwy. 83, Roma, TX Starr 31-Aug- Armando Pena and
78584 04 Clotilde R. Pena
0030 4021 7th St., Bay City, TX Matagord 31-May- Caltim, LTD., a Texas
77414 a 03 Ltd.
0031 231 W. Main, League City, TX Galvesto 31-May- CenterAmerica Property
77573 n 05 Trust, LP
0032 2100 So. W.S. Young Dr., Bell 31-Mar- American National
Killeen, TX 76543 07 Insurance Company
(3000 Killeen Mall)
0033 135 S. Central Expressway, Collin 31-Mar- Westgate Center Ltd.
McKinney, TX 75069 02
0034 2939 Thousand Oaks, San Bexar 31-Jan- CMF Capital Company LLC
Antonio, TX 78247 10
0035 2504 N. Laurent, Victoria, TX Victoria 30-Apr- Center America Property
77901 04 Trust, L. P.
0036 4302 Ayers, Corpus Christi, TX Nueces 30-Apr- Weingarten Realty
78415 04 Management
0037 726 Wheatland Rd., Dallas 31-Jan- Duncanville Cedar
Duncanville, TX 75116 05 Square, L.P.
0038 1500 E. Court, Suite 500, Guadalup 31-Jan- Great Oak LLC/Seguin
Seguin, TX 78155 e 06 Five Courts
0039 13802 Research, Austin, TX Williams 31-Dec- Rebota, Inc.
78750 on 03
0040 1502 Brazos, Lake Jackson, TX Brazoria 31-Jan- WXI/Z SW Malls Real
77566 10 Estate LLC
0041 3749 N. 16th St., Orange, TX Orange 31-Oct- Northway Shopping
77630 04 Center
0042 1111 E. Tyler, Suite 127-B, Henderso 31-Jan- Property Asset
Athens, TX 75751 n 11 Management, Inc
0043 Space #138, Silsbee, TX 77656 Hardin 31-Jan- Starns, III
02
0045 2200 Avenue F, Del Rio, TX Val 31-Mar- CBL & Associates Inc.
78840 Verde 04
0046 2415 S. Congress Ave., Austin, Travis 31-Mar- Easterling Properties
TX 78723 03
0047 300 Early Blvd., Space 11, Brown 31-Oct- Sequoia Investments II,
Brownwood, TX 76801 05 LLC
0047 300 Early Boulevard, Space 11, Brown 31-Jan- Sequoia Investments II,
S Early, TX 76802 04 LLC
0048 1404B W. Moore, Terrell, TX Kaufman 31-Jan- Terrell Associates, Ltd
75106 05
0049 5431 Interregional Rd., Travis 31-Jul- Capital Highway 35, Ltd
Austin, TX 78723 03
0050 4104 S. Staples Ave., Corpus Nueces 31-Mar- Jerry J. Moore
Christi, TX 78411 01 Investments
0051 3725 Leopard St., Corpus Nueces 31-Mar- Michael J. Kuhn,
Christi, TX 78408 01 Trustee
0052 1211 N. Commerce, Ardmore, OK Carter 30-Apr- EBL & S Property
73401 05 Management, Inc.
(150 Mountain View Mall)
0053 3111 S. 31st St., Temple, TX Bell 01-Jan- Temple Mall Company
76502 02
(Temple Mall Shopping Center)
0054 2008 South Expressway, Cameron 31-Jan- Harlingen Mall Company
Harlingen, TX 78552 04
(Valley Vista Mall)
0055 3500 W. 7th, Corsicana, TX Navarro 31-Jan- C. P. Mall, Ltd
75110 09
0056 1501 E. Main, Alice, TX 78332 Jim 30-Jun- Alicia Corporation
Wells 02
0057 507 N. Hwy. 77, Waxahachie, TX Ellis 31-Jul- MaClay Northgate, Ltd
75165 03
0058 Space #1250, 5488 SPID, Corpus Nueces 30-Sep- Roy M. Smith & W. M.
Christi, TX 78411 02 Bevly
0060 1530 Wildcat Dr., Portland, TX Patricio 01-Mar- EIG Northshore Plaza,
78374 02 LLC
0061 I-10 @ College St., Beaumont, Jefferso 31-Jan- Gateway Shopping Center
TX 77701 n 02
0062 500 N. Jackson Rd., Pharr, TX Hidalgo 02-Oct- Spigel Properties
78577 02
0063 4101 E. 42nd St., Odessa, TX Ector 31-Mar- MCM Properties, LTD
79762 10
0064 2711 61st St., Galveston, TX Galvesto 31-Jan- Weingarten Realty
77550 n 06 Investors, Inc.
0065 2620 Avenue H, Rosenberg, TX Fort 31-Jan- Rosenberg, Ltd
77471 Bend 04
0066 3659 Twin City Hwy., Port Jefferso 30-Nov- Jefferson City Commons
Arthur, TX 77640 n 03 LLC
0067 200 Springtown Way Suite #309, Hays 31-Dec- STM Partners, Ltd
San Marcos, TX 78666 09
0068 Space #420, Beaumont, TX 77706 Jefferso 31-Oct- Parkdale Mall
n 03 Associates
0069 2003 N. St. Mary, Beeville, TX Bee 28-Aug- DWH Development Co.
78102 02
0070 1008 E. Hwy. 82, 1008 E. Hwy Cooke 31-Jul- David Saloman
82, Gainesville, TX 76240 04
0071 2310 SW Military Dr., San Bexar 30-Apr- General Growth
Antonio, TX 78221 04 Management, Inc.
0072 1105B Garth Brooks Blvd., Canadian 31-Jan- 4810 L.P., an Illinois
Yukon, OK 73099 06 Limited Partnership
0073 305 E. University, Edinburg, Hidalgo 31-Jul- B-Y Edinburg Centers
TX 78539 04 LTD
0074 2525 Anderson Ln., Austin, TX Travis 31-Dec- Fund A Northcross, Inc.
78757 10
(100 Northcross Mall)
0075 Space #214, Wichita Falls, TX Wichita 31-Jan- Sikes Coyote Mall, L.P.
76308 11
0076 2200 S. 10th St., McAllen, TX Hidalgo 31-Jan- Simon Homart San
78501 02 Antonio Mall
Partnership
0077 7900 IH 35 N., San Antonio, TX Bexar 31-Jan- Simon Homart San
78218 01 Antonio Mall
Partnership
0078 4521 Westgate Blvd., Austin, Travis 31-Jan- HEB Store Property Co.
TX 78218 13 #1
(130 Westgate Mall)
0079 1663 W. Henderson, Cleburne, Johnson 31-Mar- Today Nolan River L.P.
TX 76031 05
(150 Nolan River Mall)
0080 4100 S. New Braunfels, San Bexar 31-Jan- GGP Limited
Antonio, TX 78223 11 Partnership/McCreless
Mall
0081 11200 Lakestop Blvd., Cedar Williams 31-Jan- Lakeline Developers
Park, TX 78613 on 11 2324/BEA
0082 501 N. Main, Muskogee, OK Muskogee 30-Nov- Warmack-Muskogee Ltd
74401 02
0083 622 NW Loop 410, San Antonio, Bexar 31-Dec- Central Park Joint
TX 78216 02 Venture
0084 5300 N. San Dario Suite 150, Webb 31-Dec- Mall Del Norte
Laredo, TX 78041 02
0085 2407 Ponderosa Dr., Chickasha, Grady 31-Jan- Chickasha Square
OK 73018 03
0086 520 S. Bryant, Edmond, OK Oklahoma 13-Sep- Weingarten Nostat, Inc.
73034 03
(Bryant Square Shopping
Center)
0088 200 Sydney Baler So., Kerr 31-Oct- Alpha Lake, Ltd
Kerrville, TX 78028 08
(NO. 17 River Hills Mall)
0089 121 S. Hwy. 35 Bypass, Port Calhoun 31-Jan- Westco Property
Lavaca, TX 77979 10 Management
0090 Space #6, Texarkana, TX 75503 Bowie 31-Oct- Warmack-Texarkana
08 Partnership
0091 3415 Olton Rd., Plainview, TX Hale 31-Jan- BLI Plainview, Ltd
79072 06
0093 4001 SW Blvd., San Angelo, TX Tom 31-Dec- Landau & Heyman
76901 Green 09
(3000 Sunset Mall)
0094 1007 Phillips Rd., Borger, TX Hutchins 23-Mar- D.J. Investments
79007 on 05
0095 1201 N. Hobart Suite 4C, Gray 31-Jan- D. J. Investments
Pampa, TX 79065 01
0096 2360 No. Expressway, Cameron 31-Jan- Brownsville Sunrise
Brownsville, TX 78526 05 Developers, LP
0098 1326 Hwy. 35 No., Rockport, TX Aranas 31-Jan- Sea/Aire Center/Gordan
78382 11 McNutt
0099 3rd & C Streets, Lawton, OK Comanche 31-Jan- Central Mall/Lawton
73501 01
(#149 Central Mall)
0100 6001 W. Waco Dr., Waco, TX McLennan 31-Jan- Lilac Properties
76710 01 Associates LP
0101 1801 E. FM 700 #150, Big Howard 28-Feb- Alpha Lake Ltd.
Spring, TX 79720 02
(#150 Big Spring Mall)
0102 2302 W. Pierce St., Carlsbad, Eddy 31-Mar- Resource Management
NM 88220 06 Inc.
(#150 Carlsbad Mall)
0103 7800 Halletsville Hwy., Victoria 31-Dec- Victoria Mall
Victoria, TX 77904 05
(#175 Victoria Mall)
0104 3199 N. White Sands Blvd., Otero 31-Mar- White Sands Mall
Alamorgordo, NM 88310 02
0105 2005 N. 14th St. #109, Ponca Kay 31-Jan- Ponca Plaza, Ltd.
City, OK 74601 03
(Ponca Plaza)
0106 376 Sam Houston Jones Pkwy., Calcasie 31-Jan- Park Dell SC #53
Moss Bluff, LA 79414 u 04
0107 1500 Harvey Rd., Space E, Brazos 28-Feb- Post Oak Mall
College Station, TX 77840 02 Associates
0108 1600 Water St., Space B-6, Webb 31-Jan- Spigel Properties
Laredo, TX 78040 06 Laredo, Inc.
0109 1420 N. Main St., Altus, OK Jackson 31-Jan- Bunker Hill Co.
73521 05
0110 15032 San Pedro Ave. (Hwy Bexar 31-Jan- Brookhollow Shopping
281N), San Antonio, TX 78232 08 Center
0111 4511 N. Midkiff Dr., Midland, Midland 31-Jan- Simon Homart San
TX 79705 01 Antonio Mall
(Space E14, Midland Park Mall) Partnership
0112 1840 Lee Trevino, Suite 100, El Paso 21-Apr- G.G.I.A. II Limited
El Paso, TX 79936 01
0113 700 S. Telshor, Las Cruces, NM Dona Ana 31-Mar- American National
88001 07 Insurance Company
(5000 Mesilla Valley Mall)
0114 1734 Carl Albert Parkway, Pittsbur 31-Jan- Gene Murphy
McAlester, OK 74502 g 06
0115 1979 Prospect, Houma, LA 70363 Terribon 28-Feb- Lynn Park S.C. #35
ne 03
0116 1306 W. IH-40 Frontage Rd., McKinley 31-Jan- Rio West Mall
Gallup, NM 87301 02
0117 6909 N. Loop 1604 E., San Bexar 31-Jan- Simon Homart San
Antonio, TX 78247 06 Antonio Mall
Partnership
0118 11411 Perrin Beitel, San Bexar 28-Feb- Soloman Abdo
Antonio, TX 78217 02
0119 4601 E. Main St., Space 670, San Juan 30-Sep- Price Development Co.,
Farmington, NM 87401 02 Ltd
0120 3100 FM 365, # 57, Port Jefferso 15-Aug- Central Mall - JV
Arthur, TX 77640 n 02
0121 7701 IH-40, #700, Amarillo, TX Potter 31-Dec- Schroder Amarillo Ltd
79160 02
0122 455 S. Bibb St., #300, Eagle Maverick 31-Jan- Mall de las Aquilas
Pass, TX 78852 07
0123 4101 U.S. Hwy. 77, Corpus Nueces 31-Mar- Center America Capital
Christi, TX 78410 03 Partner
0124 4400 North Freeway, #200, Harris 31-Jan- Northline Joint Venture
Houston, TX 77022 07
0125 1130 S. Wheeler, Jasper, TX Jasper 31-Jan- Phelan - Phelan
75951 08
0126 4501 N. Main St., Space 11, Chaves 31-Mar- Phoenix Home Life
Roswell, NM 88201 04 Mutual Insurance Co.
0127 7107 Hwy. 71 W., Space #D1, Travis 31-Jan- Oak Hill Plaza
Austin, TX 78735 04
0128 701-801 N. 13th St., Cameron 31-Oct- Spigel Properties
Harlingen, TX 78550 00
0129 415 South St., Cleveland, MS Bolivar 31-Jan- Betty Woodward Limited
38732 07 Family Partnership
0130 1208 - S N. I-35, Round Rock, Williams 31-Jan- Austin Bryant
TX 78681 on 05 Properties No. 3 L.P.
0131 105 Loop 150 West, Suite A, Bastrop 31-Jan- Howard J. Schain
Bastrop, TX 78602 08
0132 203 IH 35 West, New Braunfels, Comal 31-Jan- Pocal - Tex
TX 78130 05 Investments, Inc.
0133 FM 1825 @ Wells Branch Pkwy., Travis 31-Jan- H. E. Butt Grocery
Pflugerville, TX 78660 13 Company
0134 2713 N. Prince, Clovis, NM Curry 31-Jan- Price Financing
88101 06 Partnership, L.P.
0135 1934 ESE Loop 323, Tyler, TX Smith 31-Jan- Pacific Retail Trust
75701 05
0136 626 Palo Pinto St., Parker 31-Jan- Richard Ball &
Weatherford, TX 76067 07 Associates
0138 2106 S. Market St., Brenham, Washingt 31-Jan- ANREM Corporation
TX 77833 on 05
0141 3804 W. Elm Pl., Broken Arrow, Tulsa 31-Jan- Rock Cod Broken Arrow
OK 74011 01 Towne Centre, LLC
0142 469 UH-30, Rockwall, TX 75087 Rockwall 31-Jan- Bent Tree Realty Co.
(Rockwall Village) 01
0143 1565 W. Main, Lewisville, TX Denton 31-Jan- CMF Capital Co Inc.
75067 01
0144 Space #2, Huntsville, TX 77340 Walker 31-Jan- TCP Westhill Partners,
07 L. P.
0145 215 B Ellinger Rd., LaGrange, Fayette 31-Jan- The Sandra Corporation
TX 78945-3005 03
0146 1520 Austin Hwy., San Antonio, Bexar 15-Sep- Northlane, Ltd
TX 78218 00
0148 4125 W. Owen K. Garriott, Enid 31-Jan- Melvin Simon &
Enid, OK 73703 01 Associates
(Oakwood Mall)
0149 710 Paseo Del Pueblo Sur, #4, Taos 31-Jan- Cruz Alta Plaza, Ltd
Taos, New Mexico 87571 10
0150 301 Mexico St., #D-3, Cameron 31-Jan- Simon Property Group
Browsville, TX 78520 07
0151 901 N. Polk, #301, Desoto, TX Dallas 31-Jan- East Townsend Square,
75115 02 Inc.
0152 Lonnie Abbev Industrial Blvd., Pontotoc 31-Jan- North Hills Center Ltd
#1140, Ada, OK 74820 02 Partnership
0153 Space #136, Houston, TX 77087 Harris 31-Jan- Houston Gulfgate
07 Partners, Inc.
0154 1143 E. Esplanade, Cuero, TX Dewitt 31-Jan- East Bay Partners, Ltd.
77954 07
0155 510 Plaza Ct., Sand Springs, Tulsa 31-Jan- Bauer & Associates
OK 74063 02
0156 608 E. Broadway, Sweetwater, Nolan 31-Jan- Warmack & Company
TX 79556 12
0157 2625 Old Denton Rd., Dallas I 31-Jan- Furneaux Creek Realty,
Carrollton, TX 75007 03 Ltd.
0158 113 N. Greenville, Allen, TX Collin 31-Jan- Sabre Realty
75002 02 Management, Inc.
0159 550 Wilshire Blvd., Burleson, Johnson 31-Jan- Burleson Shopping
TX 76028 03 Center, LP
0160 6002 Slide Rd., Lubbock, TX Lubbock 31-Jan- Macerich Lubbock
79414 07 Limited Partnership
0162 616 Boll Weevil Circle, Coffee 28-Feb- Aronov Realty Co., Inc
Enterprise, AL 36330 03 & Frank Johnston
0164 U. S. Hwy. 72 W., # 613, Limeston 31-Jan- Ramco Gershenson, Inc.
Athens, AL 35611 e 09
(613 Town Center)
0165 1651 Northwest Hwy., Tarrant 31-Jan- Northwest Plaza Realty,
Grapevine, TX 76051 02 Ltd.
0166 908 N. Austin Ave., Williams 28-Feb- Republic Square Joint
Georgetown, TX 78626 on 06 Venture
0167 3116 N. Main, Taylor, TX 76574 Williams 31-Jan- Routh Development
on 08
0168 601 W. Ford, Decatur, TX 76234 Wise 31-Jan- Donald Turkal Trustee,
08 Village Center Shopping
Cente
0169 301 E. Highway 243, Canton, TX Van 29-Aug- Wal-Mart Stores, Inc.
75103 Zandt 05
0170 105 S. Texas, Space C, Hidalgo 31-May- David Cottrell
Mercedes, TX 78570 10 Investment, Inc
0172 301 E. Expressway, Space #3, Hidalgo 02-Oct- Ithaca Investments,
Mission, TX 78572 01 Ltd.
0173 1828 North Velasco, Angleton, Brazoria 30-May- Angleton Four Corners
TX 77515 05 Limited
0174 1000 A Loop 340, Bellmead, TX McLennan 21-Aug- G - Whis/Bellmead, L.P.
76705 07
0175 2160 N. Main, Belton, TX 76513 Bell 31-Jan- Oak Village Shopping
11 Center
0176 925 E. Highway 377, Granbury, Hood 31-Jan- Coldwell Banker United
TX 76048 07 Realty Director
0177 2300 W. Morton St., Denison, Grayson 31-Jan- LaGree-Scott Commercial
TX 75020 08 Real Estate Group
0178 1554 Martin Luther King Blvd., Terrebon 31-Jan- Kimco Realty
Houma, LA 70360 ne 14 Corporation
0179 759 NE Hwy. 62, Space #95, Baxter 31-Oct- Fleming Company, Inc.
Mountain Home, AR 72653 08
0180 610 Trinity Dr., Los Alamos, Los 31-Jan- Developers Diversified
NM 87544-3261 Alamos 09
0181 425 St. Louis St., Batesville, Independ 31-Jan- Independence Center
AR 72501 ence 11
0182 124 Hwy. 51 North, Batesville, Panola 31-Jan- Gateway Mississippi
MS 38606 09 Properties
0183 718 S. Front St., Bellville, Austin 31-Jan- Brookshire Bros Profit
TX 77418 04 Sharing Plan
0184 1835 W. Frank St., Lufkin, TX Angelina 31-Jan- Brookshire Brothers LTD
75901 04
0185 405 E. Main St., Madisonville, Madison 31-Jan- Brookshire Brothers
TX 77864 04 Profit Sharing Plan
0186 1038 E. Main St., Blytheville, Mississi 31-Mar- Lane Land Company
AR 72315 ppi 04
0187 1414 Main St., Suite 8, Washingt 31-Jan- R. A. D. R. Ltd.
Chipley, FL 32423 on 10
0188 1056 S. Highway 63, Rolla, MO Phelts 30-Jun- Wal-Mart Stores East,
65401 09 Inc
0189 1300 W. 6th St., The Dalles, Wasco 31-Jan- Portland Fixture
OR 97058 05 Company
0190 6721-1 Pines Rd. @ I-20, Caddo 31-Dec- Wal-Mart Stores East,
Shreveport, LA 71109 08 Inc
0201 917 Main, Houston, TX 77002 Harris 31-Jan- Kirby Main, Inc.
(Downtown) 06
0202 3902 Bissonnet, Houston, TX Harris 30-Nov- Trammell Crow Co
77005 (Weslayan Plaza East) 07
0204 431 Uvalde Rd., Houston, TX Harris 30-Nov- KIMCO Realty
77015 (Woodforest) 07 Corporation
0205 Beechnut @ Loop 610 So., Harris 31-Jan- Ronus Meyerland Plaza,
Houston, TX 77096 (Meyerland) 02 L.P.
0206 1345 W. 43rd, Houston, TX Harris 30-Nov- Weingarten Realty
77018 (Oak Forest) 02 Management
0208 Space #530, Houston, TX 77075 Harris 31-Dec- San Mall, LLC
(Alameda Mall) 09
0209 Space #530, Houston, TX 77018 Harris 31-Dec- San Mall, LLC
(Northwest Mall) 09
0211 Space #721, Houston, TX 77024 Harris 14-Jun- Katy-Gessner Associates
(Memorial City) 99 Limited Partnership
0212 5407 FM 1960 West, Houston, TX Harris 31-Aug- Weingarten Realty
77069 (Championsville) 03 Management Company
0214 Space #214, Houston, TX 77036 Harris 31-Dec- Sharpstown Center
(Sharpston Center) 04
0215 Space #347, Houston, TX 77060 Harris 30-Nov- GPM Houston Properties,
(Greenspoint Mall) 08 LTD
0216 915 NASA Rd. 1, Houston, TX Harris 31-Aug- GEIRP-Houston-Village
77058 02 Real
0217 11251 Fondren, Houston, TX Harris 30-Sep- P. R. I. Investments
77035 09
0217 11251 Fondren, Houston, TX Harris 30-Sep- Weingarten Realty
A 77035 09 Management
0219 Space #6000, Houston, TX 77521 Harris 31-Jan- San Jacinto Mall
(San Jacinto Mall) 02
0220 Space #1338, Houston, TX 77070 Harris 01-Jan- Sarsaparilla Limited
(Willowbrook Mall) 02 Partnership
0221 Space #225, Houston, TX 77506 Harris 04-Mar- JMB Pasadena Properties
(Pasadena Town Square) 02 Co.
0222 Space #1600, Houston, TX 77082 Harris 31-Jan- West Oaks Mall
(West Oaks Mall) 05
0223 1255 West Bay Area Blvd., Harris 20-Mar- P. R. I. Investments
Webster, TX 77598 04
0224 20131 Hwy 59 North, Humble, TX Harris 31-Jan- Deerbrook Mall
77338 05
0225 11939 Bissonnet, Houston, TX Harris 30-Sep- P. R. I. Investments
77099 09
0226 3834 Cartwright Rd., Missouri Fort 31-Oct- P. R. I. Investments
City, TX 77459 Bend 10
0227 23914 U.S. 59 North, Kingwood, Montgome 30-Sep- P. R. I. Investments
TX 77339 ry 11
0228 10000 EF Lowry Expressway, Galvesto 30-Jun- Mainland Holding Corp.
#1152, Texas City, TX 77591 n 11
0229 560 El Dorado Blvd., Webster, Harris 31-Jul- Weingarten Realty
TX 77598 04 Management
0230 3502 Hwy. 6 South, Sugarland, Fort 31-Jan- Weingarten Realty
TX 77478 Bend 01 Management
0231 10831 Jones Rd., Houston, TX Harris 31-Oct- Weingarten Realty
77065 03 Management
0232 511 S. Mason Rd., #3014, Katy, Harris 31-Jan- United Investors Realty
TX 77450 06 Trust
0233 27714 FM 149, Tomball, TX Harris 31-Jan- CenterAmerica Property
77375 01 Trust, LP
0234 6696 Antoine Dr., Houston, TX Harris 30-Jun- Inwood Shopping Center
77091 00
0235 Space #6540, Houston, TX 77056 Harris 31-Dec- Woodway Village, LP
(Woodway Village) 08
0236 1201 The Woodlands Mall, Montgome 31-Jan- The Woodlands Mall
#2212, Woodlands, TX 77380 ry 10
0237 1701 Fairway, Alvin, TX 77511 Brazoria 31-Jan- 9SC Associates Ltd
10
0238 Space #144, Beaumont, TX 77706 Jefferso 31-Oct- Parkdale Mall
n 03 Associates
0239 2642 W. MacArthur, Orange, TX Orange 30-Apr- United Shopping
77630 05 Centers, Inc.
0240 Space #1006, Corpus Christi, Nueces 31-Jan- Roy M. Smith & W. M.
TX 78411 08 Bevly
0241 3267 E. Broadway, Pearland, TX Brazoria 31-Jan- Center America Property
77581 10 Trust, L. P.
0242 6863 N. Hwy. 6 @ FM 529, Harris 31-Jan- Copperwood Shopping
Houston ,TX 77094 12 Center, L. P.
0244 2323 N. Main St., Liberty, TX Liberty 31-Jan- BLI Liberty, Ltd
77575 08
0245 1711 E. Houston St., Liberty 31-Jan- The Ben Tobin
Cleveland, TX 77327 08 Companies, Ltd
0247 10957 Westheimer, Houston, TX Harris 31-Jan- Weingarten Realty
77042 13 Investors
0248 5782 Fairmont Parkway, Paris 31-Jan- Fairway Plaza
Pasadena, TX 15 Associates
0260 641 Country Side Dr., Columbia Whitley 31-Jan- Wilbert and Peggy
City, IN 46725 09 Hamstra
0261 2535 Colorado Blvd., Lawrence 31-Jan- High Plains Plaza
Spearfish, SD 57783 09 Limited Partnership
0262 434 Stage Plaza, Unit S, Mt. Posey 31-Jan- Winvern, L.L.C.
Vernon, IN 47620 09
0263 175 N. Brindlee Mountain Marshall 31-Jan- Gateway Commercial
Parkway, Arab, AL 35016 09 Brokerage, Inc
0264 903 Hwy. 82 East, Indianola, Sunflowe 31-Jan- Indianola Foods Inc.
MS 38751 r 09
0265 200 W. High Ave., Suite D, Mahaska 31-Jan- Oskaloosa Partners, LP
Oskalossa, IA 52577 09
0266 200 W. Greenway, Derby, KS Sedgwick 31-Jan- McNeil Real Estate Fund
67037 09 XXIV
0267 1947 Valley Pine Circle, #3, Koochich 31-Jan- International Mall
International Falls, MN 56649 ing 04
0268 1450 W. Pleasant Run Rd., Dallas 31-Jan- Lakewood Village JV
Suite 160, Lancaster, TX 75146 09
0269 537 N. Madison Dr., Orange, VA Orange 3-Jan- Orange Village Shopping
22960 09 Center
0270 1564 Simpson Highway 49, Simpson 31-Jan- E&A Southeast, LP
Magee, MS 39111 09
0271 1001 Center Point Dr., Stevens Portage 31-Jan- Center Point Mall
Point, WI 54481 14 Corporation
0272 210 S. Main St., Rushville, IN Rush 31-Jan- Rushville Plaza
46173-1635 09
0273 Space #206, McCook, NE 69001 Red 31-Jan- Wal-Mart Stores, Inc.
Willow 11
0274 1100A W. Main, Gun Barrell Kaufman 31-Jan- Wal-Mart Stores, Inc.
City, TX 75147 09
0275 1827 Wilson Rd., Space #50, Newberry 31-Jan- I45 Associates, Ltd.
New Berry, SC 29108 09
0276 155 Crown Hill Rd., Excelsior Clay 31-Jan- Crown Hill Plaza,
Springs, MO 64024 09 L.L.C.
0277 2204 Princeton Circle Rd., Franklin 31-Aug- Wal-Mart Stores, Inc.
Ottawa, KS 66067 08
0278 1030 I Freeport Rd., Defuniak Walton 31-Jan- Defuniak Square
Springs, FL 32433 09 Partners
0279 1310 Woodlawn Rd., Lincoln, IL Logan 31-Jan- Malan Realty Investors
62656 09
0280 118 E. Polk St., Burnet, TX Burnet 31-Jan- Limited Partners on the
78611 09 Square Ltd.
0281 6900 FM 1960 East, Humble, TX Harris 31-Jan- TCP Realty Services,
77338 01 LLC
0282 1412 E. Main St., Gillespi 31-Jan- Hill Country Holding
Fredricksburg, TX 78624 e 09 Company, Inc.
0284 1701 S. Jefferson, Lebanon, MO Laclede 28-Feb- Wal-Mart Stores East,
65536 06 Inc
0285 2306 E. Jackson Rd., Macomb, McDonoug 31-Jan- Wal-Mart Stores East,
IL 61455 h 11 Inc
0286 736 Winchester Dr. West, West Clay 31-Jan- West Point Properties,
Point, MS 39773 09 Inc
0288 521 S. Mill, Pryor, OK 74361 Mayes 31-Jan- Wal-Mart Stores East,
02 Inc.
0289 311 Hwy. 1 South, Natchito 03-Feb- Wal-Mart Stores, Inc.
Natchitoches, LA 71457 ches 06
0290 924 Hwy. 13 South, Columbia, Marion 31-Jan- Daniel G. Kamin
MS 39429 0
0291 2411 Highway 36, Gatesville, Coryell 31-Jan- The Sandra Corporation
TX 76528 09
0292 509A Linden Ave., Pocomoke Worceste 31-Jan- Chesapeake Investment
City, MD 21851 r 09 Company
0294 1165 W. Fifth St., Marysville, Union 31-Aug- Marysville Plaza
OH 43040 03
0295 Northwest Plaza Shopping Tate 31-Jan- Mark D. Utley
Center, Senatobia, MS 38668 14
0296 2800 New Pinery Rd., Portage, Columbia 31-Jan- Pine Tree Portage L. L.
WI 53901 09 C.
0297 4009 7th St., Bay City, TX Matagord 31-Jan- Caltim, LTD
77414 a 09
0298 786 W. Spring, Monroe, GA Walton 31-Jan- BPT Southeastern
30656 09 Centers II, LTD
0299 1314 E. Florence Blvd., Suite Pinal 31-Jan- Lawrence & Geyser
2, Casa Grande, AZ 10 Development Corp.
0301 3069 E. Main St., Pope 31-Jan- DDR DownREIT LLC
Russellville, AR 72801 05
0302 2901 Pines Mall Dr., Suite F, Jefferso 31-Jan- The Pines Mall
Pine Bluff, AR 71601 n 07
0303 4501 Central Ave., Hot Garland 29-Jul- Hot Springs Mall
Springs, AR 71913 02 Associates
0304 201 Hwy. 65 North, Space #40, Faulkner 31-Jul- EIC - Arkansas, L. C.
Conway, AR 72032 05 C.
0305 103 Poplar St., Searcy, AR White 31-Jan- Wal-Mart Stores, Inc.
72143 05
0306 1308-D Main St., Crossett, AR Ashley 30-Jun- Lloyd E. Lindsey and
71635 02 Joe E. Hawkins
0307 1137 W. Washington St., Suite Ouachita 31-Jan- Camden Center #23
128, Camden, AR 71701 03
0308 2013 N. West Ave., Space #735, Union 28-Feb- Mellor Park Mall
El Dorado, AR 71730 09
0309 213 Fredrick St., Magnolia, AR Columbia 31-Jul- University Plaza #43
71753 05
0310 100 N. Dixieland Rd., Rogers, Benton 13-Aug- Dixieland Mall, LLC
AR 72756 05
0311 517 N. Hervey, Hope, AR 71801 Hempstea 31-Aug- Hervey Square L.P.
d 03
0313 2501 West Kings Hwy., Greene 30-Apr- Wal-Mart Stores East,
Paragould, AR 72450 06 Inc.
0314 107 Gregory Place, Pulaski 31-Jan- Jacksonville Properties
Jacksonville, AR 72076 07
0315 324 Park Plaza Dr., New Union 31-Jan- S & E Farms, Inc.
Albany, MS 38652 14
0316 601 L. Hwy. 71 N., Mena, AR Polk 31-Jan- Rodgers Family Ltd Ptn
71953 03
0317 5252 W. Sunset, Springdale, AR Washingt 31-Jan- Ozark Factory Outlet
72764 on 09 Stores, Inc.
0318 1304 Military Rd., Benton, AR Saline 31-Jan- B & D Property
72015 08
0320 2104 S. Baltimore St., Adair 31-Jan- Raul J. Walters
Kirksville, MO 63501 10
0321 3105 W. Broadway, Sedalia, MO Pettis 31-Mar- Thompson Hills Corp
65301 02
0322 531 W. Jackson, Mexico, MO Audrain 31-Jan- Westlake Hardware, Inc
65205 08
0323 1740 First St., Kennett, MO Dunklin 31-Jan- Western Meat Packers,
63857 06 Inc.
0324 1720 Crete, Space D, Moberly, Randolph 31-Jan- Orscheln Properties
MO 65270 07 Co., LLC
0325 2410 Grand, Carthage, MO 64836 Jasper 31-Jan- Carthage Village
07 Redevelopment, L.C.
0326 729 N. Westwood Blvd., Poplar Butler 31-Jan- McLane Investment
Bluff, MO 63901 08 Company
0327 1360 Southern Hills, West Howell 31-Jan- Southern Hills Shopping
Plains, MO 65775 08 Center
0334 507 N. Hwy. 77, Suite 1000, Ellis 31-Jan- Maclay Northgate, Ltd.
Waxahachie, TX 75205 04
0336 1023 N. Texas Blvd., Weslaco, Hidalgo 31-Jan- Rohde Realty
TX 78596 04 Corporation
0337 328 Homer Rd., Minden, LA Webster 31-Jan- Smith-Jenkins Company
71055 04 of Minden
0338 650 S. Jefferson, Mt. Titus 31-Jan- CenterAmerica Property
Pleasant, TX 75455 04 Trust, L. P.
0339 1135 S. Wheeler, Jasper, TX Jasper 31-Jan- Phelan - Phelan
75951 08
0340 844 Hwy. 12 West, Starkville, Oktibbeh 28-Feb- Developers Diversified
MS 39759 a 06 Realty
0341 1404 Old Aberdeen Rd., Space Lowndes 31-Jul- Coyote Management, LP
#39, Columbus, MS 39701 04
0342 Space #15, Natchez, MS 39120 Adams 31-Mar- Natchez Mall, L.L.C.
01
0343 1111 Jackson Ave. West, Lafayett 01-Jan- Aegis Oxford, LLC
Oxford, MS 38655 e 04
0344 1722 Smithdale Rd., Bldg. B-7, Pike 28-Feb- Edgewood Mall
McComb, MS 39648 07 Developers LTD
0345 834 Brookway Blvd., Lincoln 31-Jan- Brookhaven, (TN limited
Brookhaven, MS 39601 08 partnership)
0346 3505 Pemberson Blvd., Warren 30-Nov- CBL & Associates
Vicksburg, MS 39180 03
0347 1229 Sunset Dr., Space C, Grenada 31-Jan- Green Realty Management
Grenada, MS 38901 09 Corp.
0348 781 Hwy. 43 South, Suite 10, Pearl 31-Jan- Wal-Mart Stores East
Picayune, MS 39466 River 12 Inc.-Realty Management
0349 844 Creswell Ln., Opelousas, St. 31-Jan- Succession of Jacob
LA 70570 Landry 04 Abdalla
0350 300 Early Blvd., Space 32 & Brown 31-Jan- Sequoia Investments II,
34, Early, TX 76802 04 LLC
0358 1814 Main St., Franklin, LA St. Mary 31-Jan- Brown Partnership
70538 09
0359 5460 Hwy. 64, Zachary, LA S. Baton 30-Apr- Wal-Mart Stores East,
70791 Rouge 06 Inc.
0360 1604 Ruth, Sulphur, LA 70663 Calcasie 31-Mar- Strauss, Chamblee,
u 02 Hart, Reinauer and
Landry
0361 Space #14, Lake Charles, LA Calcasie 31-Mar- Weingarten Realty
70601 u 03 Management
0362 3437 Masonic Dr., Space #1106, Radipes 28-Feb- Alexandria Mall Company
Alexandria, LA 71301 01
0363 4066 Ryan St., Lake Charles, Calccasi 31-Oct- Weingarten Realty
LA 70601 eu 00 Management
0365 4700 Mill Haven Rd., Suite Quachita 01-Jan- Southwest Shopping
1252, Monroe, LA 71203 06 Centers Co. II LLC
0366 1508 N. Parkerson Ave., Acadia 10-Apr- Lynda Corp
Crowley, LA 70526 05
0367 931 S. Lewis St., New Iberia, St. 31-Jan- Center America Property
LA 70560 Martin 09 Trust
0368 357-A N. Canal Blvd., Laforche 31-Mar- Hasco Properties #15
Thibodaux, LA 70301 05
0369 636 Creswell Ln., Opelousas, Saint 28-Feb- Succession of Jacob
LA 70570 Landry 05 Abdalla
0370 1404 W. Airline Hwy., La St. John 31-Jul- Riverlands Shopping
Place, LA 70068 01 Center
0372 1800 NE Evangeline Fwy., Lafayett 31-Jan- Today Northgate, LP
Lafayette, LA 70501 e 05
0373 1818 N. Causeway Approach, St. 31-Jan- Northlake Partners
Mandeville, LA 70448 Tammany 02
0374 2770 Old Erath Rd., Abbeville Vermilli 28-Feb- Tiffany Plaza
LA 70510 on 04 Acquisition, LLC
0375 328 Homer Rd., Minden, LA Webster 31-Mar- Smith - Jenkins Company
71055 02
0376 201 N. Service Rd. East, Lincoln 30-Sep- Ruston Center, LLC
Ruston, LA 71270 01
0377 401 E. Main St., Jonesboro, LA Jackson 31-Jan- C. H. Allen and Chatham
71251 04 Land Co., Inc.
0378 451 Bertrand Dr., Lafayette, Lafayett 31-Jan- Weingarten Realty
LA 70506 e 07 Management
0379 Space #320, Natchitoches, LA Natchito 31-Jul- Dixie Plaza #16
71457 ches 01
0380 1776 S. 5th St., Leesville, LA Vernon 31-Aug- Leesville, LA,
71446 04 Commercial
0381 1117 N. Pine St., DeRidder, LA Beaurega 30-Apr- Weingarten Realty
70634 rd 02 Management
0382 Space #67, Shreveport, LA Caddo 31-Jan- South Park Mall
71118 05
0383 1716 E. 70th St., Shreveport, Caldo 30-Jun- Eastgate Associates
LA 71105 04
0384 2950 E. Texas, Space #400, Bossier 31-Jan- Pierre Bossier Mall
Bossier City, LA 71111 03
0385 3000 N. Market St., Suite 120, Caddo 15-Jul- North Market Place
Shreveport, LA 71107 01
0386 1133 St. Vincent Ave., Space Caddo 31-Jan- Mall St. Vincent
#120, Shreveport, LA 71104 04
0387 1039 Washington Ave., Desoto 31-Jan- Desoto Plaza
Mansfield, LA 71052 08 Associates, LLC
0388 2021 E. Madison Ave., Bastrop, Morehous 31-Jan- Cansan Partnership
LA 71220 e 08
0389 3426 Cypress St., W. Monroe, Ouachita 31-Jan- Sunshine Heights
LA 71291 08 Corporation
0391 2021 E. Madison Ave., Space Saline 28-Feb- Warmack-Salina
#167, Salina, KS 67401 07 Partnership
0392 2601 Central, Dodge City, KS Ford 31-Jul- DCM Ltd, LLC - C/o
67801 06 Admin Office
0393 900 E. 23rd St., Fremont, NE Dodge 31-Jan- Simon Property Group
68025 0
0394 202 E. Centennial Dr., Crawford 31-Jan- Great Plains
Pittsburg, KS 66762 07 Developments, LLC
0395 601 N. Main St., Newton, KS Harvey 31-Jan- Janzen
67114 03
0396 1500 E. 11th, Hutchinson, KS Reno 31-Jan- Simon Property Group
67501 08
0400 901 W. Morton, Jacksonville, Morgan 31-Jan- Lincoln Square
IL 62650 05 Partnership
0401 1105 W. Broadway, Centralia, Marion 30-Jun- Fairview Park Plz #1
IL 62801 05 1998 LLC
0402 Space #120, Mt. Vernon, IL Jefferso 31-Oct- DDR DownREIT LLC
62864 n 04
0403 216 Pratt St., Streator, IL La Salle 31-Jan- Westgate, Inc.
61364-2762 06
0404 901 11th St., S.W. Bay, Space Clay 31-Jan- Sequoia Investments I,
#7, Spencer, IA 51301 06 LLC
0405 1501 1st Ave. E., Newton, IA Jasper 31-Jan- First Management, Inc.
50208 06
0406 100 E. Washington St., Platt 31-Jan- Robert H. Kaiser Trust
Monticello, IL 61856 06
0408 Space #50, Washington, IL Tazewell 31-Jan- Draper and Kramer
61571 02 Retail Property Mgmt
0409 107 M. Main St., East Peoria, Tazewell 31-Jan- Cullinan Asset
IL 61611 03 Management, LLC
0410 2125 S. Main St., Morton, IL Tazewell 31-Jan- Zobrist Development
61550 01 Company
0411 100 W. Locust St., Fairbury, Livingst 31-Jan- Fairbury Hospital
IL 61739 on 01
0412 1150 W. Carl Sandburg Dr., Peoria 31-Jan- Equity Properties and
Galesburg, IL 61401 06 Development Limited
Partnershi
0413 400 S. Plaza Dr., Chillicothe, Knox 31-Jan- Central Laborer's
IL 61523 06 Pension Fund
0415 800 Blunt Parkway. Space #125, Loyd 31-Mar- The Walker Property
Charles City, IA 50616 06 Group
0417 300 Main St., Keokuk, IA 52632 Lee 31-Jan- Freeport Holdings LLC
07
0420 South Route 45, Space #59, Effingha 31-Jan- Effingham 95, LTD
Effingham, IL 62401 m 07
0421 Space #25, Carlinville, IL Macoupin 31-May- Carlinville Plaza
62626 03
0423 1350 W. State Rd. 2, LaPorte, LaPorte 31-Jan- NBD Bank, NA
IN 46350-4672 08
0424 1323 Broadway, Denison, IA Crawford 31-Jul- Knowles Family
51442 00 Enterprises, Ltd
0425 1104 2nd St., Perry, IA 50220 Dallas 30-Jun- Wenger
00
0430 800 N. Washington, Lexington, Dawson 11-Jun- Malonley
NE 68850 00
0432 3322 Front St., Winnsboro, LA Franklin 30-Apr- AZT Winnsboro, LA, Inc.
71295 06
0433 320 Ichord Ave., Suite U, Pulaski 31-Jan- Industrial Development
Waynesville, MO 65583 03 Authority of the City
of Waynesville, MO
0435 138 5th Ave. So., Clinton, IA Clinton 31-Jan- SU & SK, LLC
52732 05
0435 419 S. 2nd Street, Clinton, IA Clinton 31-Jan- E. M. Howes Company
A 52733 05
(E.M. Howes Building)
0436 1216 N. Lake Arthur Ave., Jefferso 31-Jan- Jennings Village S C
Jennings, LA 70546 n Davis 08
0437 571 S. Main St., Springhill, Webster 31-Jan- Springhill Shopping
LA 70175 08 Center, LLC
0438 910 16th Ave., Monroe, WI Green 31-Jan- Monroe Speed Wash
53566 01
0439 1750 Highway 100, Port Cameron 31-Jan- Tres Palmas. Inc.
Isabel, TX 08
0440 405 Park Ln., Chillicothe, MO Livingst 31-Jan- 145 Associates, Ltd
64601 on 08
0442 952 22nd Ave. So., Brookings, Brooking 31-Jan- Vision Developers, Inc.
SD 57006 s 08
0447 Space #2398, Alpena, MI 49707 Alpena 31-Jan- Alpena Mall, LLC
08
0448 200 Western Ave., Fairbault, Rice 31-Jan- Faribo West Mall
MN 55021 0
0450 1000 19th St. S.W., Space #3, Beadle 31-Jan- Huron Mall, LLC
Huron, SD 57530 08
0452 546 Plaza Dr., Fostoria, OH Hancock 31-Jan- Midstates Property Co.,
44830 08 Ltd, Ptn
0453 1420 E. College Dr., Marshall, Lyon 31-Jan- Marshall Square
MN 46258 08 Shopping Center
0454 990 W. 41st St., Space #87, Saint 31-Jan- Irongate Enterprises,
Hibbing, MN 55746 Louis 08 Inc.
0456 19 E. Highway 66, Tell City, Perry 31-Jan- Ramsey Real Estate
IN 47586 08 Enterprises
0457 1500 Winchester Rd., Decatur, Adams 31-Jan- Deactur Plaza
IN 46733 08
0459 Space #1648, Crawfordsville, Montgome 31-Jan- Crawfordsville Square,
IN 47933 ry 07 L.L.C.
0460 3918 E. Market St., Cass 31-Aug- Kite Rubloff,
Logansport, IN 46947 00 Logansport LLC
0461 2028 N. Jefferson St., Huntingt 31-Jan- Huntington #1 1996, LLC
Huntington, IN 46750 on 07
0462 117 Second St., Port Clinton, Ottawa 15-Sep- Stinson
OH 43452 00
0463 1100 N. High St., Hillsboro, Highland 31-Mar- K-Mart Corporation
OH 45133 04 #6536
0464 1305 N. Cass St., Wabash, IN Wabash 31-Aug- Wabash Stations
46992 03
0465 106 N. Michigan Ave., Big Mecosta 28-Feb- Berglund
Rapids, MI 49307 01
0466 1384 Rombach Ave., Wilmington, Clinton 31-Dec- The Clintmont Company
OH 45177 04
0467 1851 Oakwood Ave., Suite 501, Henry 31-May- Napoleon Partners, Ltd.
Napoleon, OH 43545 02
0468 1935 Havemann Rd., Celina, OH Mercer 30-Sep- E. H. Properties, L. P.
45822 05
0469 1140 S. Shannon, Van Wert, OH Van Wert 30-Apr- National Investors, Inc
45891 05
0469 1140 S. Shannon, Van Wert, OH Van Wert 30-Apr- EIG Operating
45891 05 Partnership, LP
0470 106-108 S. Sandusky Ave., Wyandot 15-Jul- Brian L. Meek
Upper Sandusky, OH 00
0471 4170 E. Bluegrass Rd., Mt. Isabella 31-Aug- DDR Michigan II, LLC
Pleasant, MI 48858 00
0472 23543 U.S. Route 23, Pickaway 31-Mar- KR Circleville, Inc
Circleville, OH 43113 00
0473 400 River St., Manistee, MI Manistee 31-Jan- ISO
49660 09
0474 115 S. Mitchell Ave., Wexford 31-Jan- J & K Fund II, L.L.C.
Cadillac, MI 49601 09
0474 111 South Mitchell, Cadillac, Wexford 28-Feb- Clark, Trustee
A MI 49601 01
0475 211 S. Main St., Mt. Vernon, Knox 31-Jan- Ritter & Rose Building
OH 43050 01
0476 537 Broadway, Greenville, OH Darke 31-Oct- Prestige Properties
45331 05
0477 1831 W. Main St., Troy, OH Miami 31-May- Troy Towne Center
45373 05
0478 425 Main St., Coshocton, OH Coshocto 31-Jul- Paul E. Bryant
43812 n 02
0479 301 Huron Ave., Port Huron, MI St. 30-Apr- J. B. Sperry Company
48060 Clair 02
0480 204 E. Front St., Traverse Grand 30-Apr- J. D. & S. B.
City, MI 49684 Traverse 00 Enterprises, Inc.
0480 204 East Front Street, Grand 31-Jan- Hartford-LaFave, Inc.
A Traverse City, MI 49684 Traverse 09
0480 210 East Front Street, Grand 30-Apr- Dickson, Jr.
B Traverse City, MI 49684 Traverse 99
0482 201 S. Sandusky St., Bucyrus, Crawford 31-Jan- Wilson
OH 44820 02
0483 35-38 Monument Square, Urbana, Champaig 31-Jan- First Weston, Ltd.
OH 43078 n 07
0484 2290 W. Michigan Ave., Sidney, Shelby 31-May- R. G. Properties
OH 45365 04
0485 116 Madison St., Port Clinton, Ottawa 28-Feb- FOUR, Ltd.
OH 43402 02
0485 112 - 116 Madison Street, Port Ottawa 31-Jan- Four, Ltd
B Clinton, OH 43402 10
0487 116 W. Columbus St., Kenton, Hardin 31-Jul- B. B. G. an Ohio
OH 43326 03 Partnership
0487 116 West Columbus, Kenton, OH Hardin 31-Jul- Telljohann
A 43326 03
0487 116 West Columbus, Kenton, OH Hardin 31-Jan- First Weston, Ltd.
B 43326 12
0488 680 W. Market, Tiffin, OH Hopewell 31-Mar- Tiffin Westgate Company
44883 05
0489 2836 Frontage Rd., Warsaw, IN Kosciusk 31-Aug- RD Management Corp
46580 o 06
0490 127 S. Front St., Fremont, OH Sandusky 31-Mar- El Dee Realty
43420 02
0491 18-20 Sandusky St., Delaware, Delaware 15-Jul- The Peoples Store, Inc.
OH 43015 00
0492 713 Main St., Rochester, IN Fulton 30-Sep- Wabash County Farm
46975 01 Bureau Credit Union
0493 115-123 S. Main St., Bryan, OH Williams 31-May- Cletus and Marian
43506 01 Dreher
0493 115 - 123 South Main, Bryan, Williams 30-May- Hawk's Clothing, Inc.
A OH 43506 01
0493 115 - 123 South Main, Bryan, Williams 31-May- Robert Uhlman
B OH 43506 01
0494 139 S. Main St., Bowling Wood 31-Jan- Newcraft Partners, Ltd.
Green, OH 43402 09
0495 104-112 S. Main St., Logan 31-Jan- Premier Properties
Bellefontaine, OH 43311 05
0495 114 South Main, Bellefontaine, Logan 31-Jan- First Weston, Ltd.
A OH 43311 09
0496 115 S. Main St., Washington C. Fayette 30-Jun- The Masonic Temple
H., OH 43160 02 Company
0497 308 1/2 S. State St., Martin 31-Jan- Five Lakes Centre
Fairmont, MN 56031 07
0498 2101 Broadway, Yankton, SD Yankton 31-Jan- Yankton-Omaha
57078 07 Partnership
0499 Sanborn @ N. Main St., Space Davison 31-Jan- EIG Palace Mall, LLC
#10C, Mitchell, SD 57301 07
0500 401 16th St. @ Tremont, Denver 30-Sep- Congress Resources,
Denver, CO 80202 00 Inc.
0504 302 W. Main, Lewistown, MT Fergus 30-Jun- King
59457 00
0509 U.S. 5 @ U. S. 50, Grand Mesa 31-Jan- SDG Macerich
Junction, CO 81501 01 Properties, L.P., Mesa
Mall
0516 2825 W. Main, Bozeman, MT Gallatin 31-Jul- Gallatin Mall Group,
59715 00 LLC
0517 717 W. Sheridan, Shenandoah, Freemont 31-Oct- Brannen
IA 51601 0
0520 219 S. Washington St., Redwood Redwood 31-May- Meadow Lane L. L. C.
Falls ,MN 56283 03
0523 51027 Hwy. 6 @ Hwy. 24, Garfield 31-Jan- Glenwood Springs Mall,
Glennwood Springs, CO 81601 06 L. L. P.
0524 1217 W. Main St., Stirling, CO Logan 31-Jan- High Plains Shopping
80751 08 Center
0525 501-503 Chestnut St., Cass 31-Oct- Bullock Brothers
Atlantic, IA 50022 00 Building
0526 340 W. Mariposa Rd., Nogales, Santa 31-Jan- Vestar Property
AZ 85621 Cruz 02 Management
0527 1316 Iron Springs Rd., Yavapai 31-Jan- Bonanza, LLC
Prescott, AZ 86301 07
0530 251 N. Main Ave., Space #211, Sioux 28-Feb- The Incorporated City
Sioux Center, IA 51250 03 of Sioux Center, Iowa
0531 122-124 N. Washington, Sumner 31-Aug- J & E Enterprises
Wellington, KS 67152 02
0532 18 S. Main, Fort Scott, KS Bourbon 30-Sep- Parsons
66701 02
0533 912 Main, Winfield, KS 67156 Cowley 30-Sep- Richardson Bros.
01
0534 211 S. Summitt, Arkansas City, Cowley 30-Apr- Warren Realty, Inc.
KS 67005 03
0536 904 Hall, Coffeyville, KS Mongomer 31-Jan- Coffeyville Center LLC
67337 y 01
0538 107 N. Main, El Dorado, KS Butler 31-Mar- Naill
67042 01
0539 1031 S. Washington, Junction Geary 31-Oct- Weaver
City, KS 66441 03
0541 621 Commercial, Atchison, KS Atchison 30-Sep- Herman Freldman Trust
66002 00
0542 504 "E" St., Fairbury, NE Jefferso 28-Feb- Oregon Trail
68352 n 03 Development, LLC
0546 612 Broadway, Larned, KS 67550 Pawnee 11-Jun- A. A. Doerr Merchantile
00 Co.
0547 228 W. 6th St., Concordia, KS Cloud 31-Mar- Peoples National Bank
66901 02
0548 1010 S Kansas, Liberal, KS Seward 30-Nov- I.C.A., L.L.C.
67901 02
0549 69 Fossell St., Russell, KS Russell 31-Jul- Klema Plaza, Inc.
67665 00
0550 409 Main, Garden City, KS Finney 31-Dec- J. E. & G. E. Wharton
67846 04
0551 4903 W. 10th, Great Bend, KS Barton 31-Aug- Equity Investment Group
67530 0
0552 300 S. Main, Pratt, KS 67124 Pratt 31-Oct- 4 - T Investments
00
0553 1923 S. Range, Suite 2, Colby, Thomas 31-Jan- Colby Grocery Kart,
KS 67701 08 Inc.
0554 24535 Highway One, Plaquemine, Ibervill 31-Jan- Investment Equities,
LA 70764 e 04 Inc.
0555 6435 Hwy. 90 East, Morgan Saint 30-Apr- Finkelstein-Levy, Inc.
City, LA 70380 Mary 04
0556 337 W. 16th St., Yuma, AZ Yuma 31-Mar- Yuma-Mesa Shopping
85364 01 Center
0557 3559 B Ambassador Caffery Lafayett 30-Sep- K-Mart Corp
Parkway, Lafayette, LA 70503 e 01
0559 627 W. Lincoln Rd., Ville Evangeli 28-Feb- Parkview Development
Platte, LA 70586 ne 02 Co.
0560 325 Fisher, Oakdale, LA 71463 Allen 30-Apr- Karam
02
0561 2370 W. Laurel St., Eunice, LA Saint 31-Oct- Spiegel and Spiegel,
70535 Landry 02 Money Purchase Plan
0562 116 S. Main St., Lamar, CO Prowers 30-Sep- Peery
81052 00
0563 1451 Dewar Dr., Rock Springs, Sweetwat 31-Jan- TRB No. 3 Corp
WY 82901 er 03
0565 227 N. Bent St., Powell, WY Park 31-Jul- Lynn
82435 00
0565 227 N. Bent St., Powell, WY Park 31-Jul- Wilkins
A 82435 00
0566 514 E. Pershing, Riverton, WY Fremont 31-Aug- Zaser & Longston, Inc.
82501 02
0567 2216 E. Main St., Cortez, CO Montezum 31-Jan- P. D. S. I., Inc.
81321 a 04
0568 820 Big Horn Ave., Worland, WY Washakie 30-Jun- Earl Bower Farms Co.
82401 00
0571 1111 W. Victory Way, Craig, CO Moffat 31-Aug- Centennial Mall
81625 01
0572 900 Camel Dr., Gillette, WY Campbell 31-Jan- Rockwell Farms, Inc.
82716 01
0579 116-120 S. Madison St., Dunklin 30-Sep- Welch
Malden, MO 63863 00
0580 107 E. 4th St., Salem, MO Dent 31-Jul- William E. Bottorff
65560 00 Revocable Living Trus
0581 1622 N. Business Hwy. 9, Conway 31-Jul- Preferred Equities,
Morrilton, AR 72110 03 Inc.
0582 1401 U.S. Hwy. 412 West, Benton 31-May- Connolly
Siloam Springs, AR 72761 02
0583 1324 N. College Ave., Washingt 30-Apr- Weingarten Nostat, Inc.
Fayetteville, AR 72703 on 07
0584 16 W. Walnut, Paris, AR 72855 Logan 30-Nov- Clarkston
00
0585 602 W. Lockling, Brookfield, Linn 30-Nov- Brookfield Plaza
MO 64628 00 Center, L.L.C.
0586 116 N. 3rd St., DeQueen, AR Sevier 31-Oct- Arrendondo
71832 01
0587 1100 Spur Dr., Suite 50, Webster 30-Nov- Biggs
Marshfield, MO 65706 01
0588 316 N. Main, Mountain Grove, Wright 28-Feb- Gasperson
MO 65711 03
0589 830 W. Harmony, Neosho, MO Newton 31-May- Republic Square
64850 03 Shopping Center
0590 1638-A W. Business Hwy. 60, Stoddard 30-Apr- Sells Property 4
Dexter, MO 63841 03 Development Inc
0591 1601 Hwy. 270 W, Malvern, AR Hot 31-Aug- River Park Limited
72104 Springs 00 Partnership
0596 1515-D W. Bell St., Glendive, Dawson 31-Dec- Janoff & Olshan, Inc.
MT 59330 01
0598 618 N. Center Ave., Hardin, MT Big Horn 31-Jan- R. & S. Musicus
59034 02
0599 1327 Main St., Billings, MT Yellowst 31-Aug- Popelka
59105 one 03
0602 2921 Boca Chica Blvd., Cameron 31-Jul- LGR Investment Fund,
Brownsville, TX 78520 02 Ltd
0603 118 W. Rice St., Falfurrias, Brooks 31-Jul- Sandra Corporation
TX 78355 04
0604 321 E. University, Edinburg, Hidalgo 31-Aug- B-Y Edinburg Center
TX 78539 04 Ltd.
0605 2270 E. Main, Uvalde, TX 78801 Uvalde 30-Jun- CBL Management, Inc.
02
0606 Space #111, Rio Grande, TX Starr 31-Oct- RGC Starr Plaza, Ltd
78582 03
0607 1200 S. 15th St., Harlingen, Cameron 31-Oct- Laurel Park Shopping
TX 78550 03 Center
0608 621 St. Joseph, Gonzales, TX Gonzales 31-Jul- Christian
78629 02
0609 1020 Andrews Hwy., Midland, TX Midland 30-Nov- The Bonner Group, Inc
79701 0
0610 210 Commercial, Coleman, TX Coleman 31-Jan- Jones
76834 01
0611 601 Elm, Graham, TX 76450 Young 31-Jan- Harbison & Morrison
01
0612 203 E. Second, Colorado City, Mitchell 31-Jan- Brownfield
TX 79512 02
0613 Space #4115, Vernon, TX 76384 Wilbarge 30-Nov- John Hancock Mutual
r 05 Life Insurance Company
0614 2308 Lubbock Hwy., Lamesa, TX Dawson 31-Jan- Musgrave Enterprises
79331 03
0616 3210 College Ave., Snyder, TX Scurry 31-Jan- C & S Company
79549 05
0617 1220 Grape St., Abilene, TX Taylor 28-Feb- Merchant Park Shopping
79601 03 Center
0618 1407 Tahoka, Brownfield, TX Terry 31-Jan- BL Brownfield L. P.
79316 03
0619 Space #9, Cameron, TX 76520 Milam 30-Nov- Culpepper
00
0620 223 W. Walker St., Stephens 31-Jan- Wimberly, Inc.
Breckenridge, TX 76424 01
0621 138 Live Oak, Marlin, TX 79323 Falls 30-Jun- Champion Credit Corp.
02
0622 206 S. Bridge, Brady, TX 76825 McCulloc 30-Jun- Roper
h 02
0623 9 N. Avenue "E", Haskell, TX Haskell 30-Sep- Development Corporation
79521 01 of Haskell, Inc.
0624 109 E. Avenue A, Seminole, TX Gaines 31-Jul- Larue & J. F. Svacek
79360 02
0625 2554 Barrow St., Abilene, TX Taylor 31-Mar- Equity Development
79605 01 Corp.
0626 2230 W. Beauregard, San Tom 31-Aug- Perth Company
Angelo, TX 76901 Green 02
0627 Bender @ Dal Paso, Hobbs, NM Lea 31-Dec- Bel-Aire Development
88240 05 Corp
0628 610 N. Main, Andrews, TX 79714 Andrews 31-Jan- Max Ramsey
01
0629 1515 E. "8" St., Odessa, TX Ector 31-Jan- Live Oak Plaza Shopping
79761 01 Center
0630 3300 Andrews Hwy., Odessa, TX Ector 31-Jul- One Energy Realty, Ltd
79762 02
0631 623 W. County Rd., Odessa, TX Ector 31-Jan- David Salomon
79763 04
0632 700 Gaston, Crane, TX 79731 Crane 28-Feb- Covill
00
0633 910 S. Eddy St., Pecos, TX Reeves 28-Feb- W. J. Investment
79772 02 Corporation
0634 1401 N. Turner, Hobbs, NM Lea 31-Jan- Broadmoor Shopping
88240 05 Center Association,
L.P.
0635 1404 W. Dickinson, Fort Pecos 31-Jan- Irwin
Stockton, TX 79735 03
0635 1404 W. Dickinson, Fort Pecos 31-Jan- Urias
Stockton, TX 79735 03
0636 910 E. Holland, Alpine, TX Brewster 31-Jul- Coggins, Jr
79830 03
0637 354 E. Hwy. 302, Kermit, TX Winkler 31-Aug- Kermit Square Shopping
79745 01 Center
0638 217 N. Main, Denver City, TX Yoakum 31-May- Pate
79323 02
0639 938 W. Avenue D, Lovington, NM Lea 30-Apr- Duncan
88260 04
0640 1203 S. Stockton, Monahans, TX Ward 30-Apr- Chimney Creek, Ltd
79756 02
0641 4221 W. 45th, Amarillo, TX Randall 28-Feb- Western Square
79109 02 Investments, Inc.
0642 326 University Ave., Lubbock, Lubbock 25-Aug- Weingarten Realty
TX 79415 01 Investments
0643 531 N. 25-Mile Ave., Hereford, Deaf 31-Mar- Omni Capital Corp.
TX 79045 Smith 03
0645 117 S.E. 2nd, Dimmitt, TX Castro 30-Apr- Block 73 Partnership
79027 01
0646 904 S. Main, Perryton, TX Ochiltre 31-Aug- Wheatheart Plaza, Ltd
79070 e 03
0647 3510 I-40 East, Unit B, Potter/R 30-Nov- Weingarten Nostat, Inc.
Amarillo, TX 79107 andall 04
0648 2731 50th St., Lubbock, TX Lubbock 31-Jan- Weingarten Realty
79413 10 Investors
0649 321 S. Main St., Muleshoe, TX Bailey 31-Jul- Dr. Charles Pummill
79347 00
0650 208 Clubview Dr., Levelland, Hockley 31-Mar- TGAAR Properties III,
TX 79336 05 Ltd
0651 707 Marshall Howard Blvd., Lamb 30-Sep- Littlefield Plaza, Inc
Littlefield, TX 79339 00
0652 1910 Hwy. 64 N.W., Guymon, OK Texas 31-Jan- Northridge Shopping
73942 03 Center
0653 1534 Guy Lane, Dumas, TX 79029 Moore 31-Oct- Guylane Plaza Center,
03 Ltd
0654 2815 8th St., Woodward, OK Woodward 31-Aug- Frost
73801 03
0655 1621 Tennessee Blvd., Dalhart, Dallam 31-Mar- Apache Development
TX 79022 01 Corp.
0656 425 Big Rock, Espanola, NM Rio 31-Jul- Santa Clara Pueblo
87532 Arriba 04
0657 3030-C E. Main St., San Juan 30-Apr- San Juan Association
Farmington, NM 87401 05
0658 700 Zaragosa Rd., El Paso, TX El Paso 31-Jan- Property Trust of
79907 99 America
0659 1700 W. Main St., Suite B, Eddy 30-Jun- Blue Quail L.L.C.
Artesia, NM 88210 04
0660 2150 E. Hwy. 180, Silver City, Grant 31-Dec- MLS Development and
NM 88061 06 Services, LLC
0661 9155 Dyer St., El Paso, TX El Paso 31-Mar- TGK Properties
79924 01
0662 6007 Mesa, El Paso, TX 79912 El Paso 30-Apr- Weingarten Realty
01 Management Co.
0663 106-116 Caldwell, Belen, NM Valencia 31-Jan- Del Rio Plaza
87002 03 Associates
0665 601 W. 18th St., Portales, NM Roosevel 30-Nov- Berlin
88130 t 02
0666 1217 S. 2nd St., Raton, NM Colfax 30-Jun- Fortier Properties
87740 00
0667 2200 Yarbrough Dr., El Paso, El Paso 30-Nov- Mountwood Shopping
TX 79925 01 Center, Ltd
0668 804 Douglas, Las Vegas, NM San 30-Apr- Joe G. Maloof Realty
87701 Miguel 02 Co.
0669 110 E. Santa Fe, Grants, NM Valencia 30-Apr- Bond-Gunderson Co.
87020 01
0670 1544 S.W. 27th, El Reno, OK Canadian 31-Jan- El Reno LLC
73036 05
0671 1624 S.W. 74th St., OKC, OK Oklahoma 31-Aug- 74th & Penn Partners,
73159 05 L. L. C.
0673 50 E. 15th St., Edmond, OK Oklahoma 09-Jun- Edmond Plaza
73034 03 Corporation
0674 9275 N. May Ave., OKC, OK Oklahoma 30-Jun- Colonial Center, Ltd
73120 02
0675 907 S. Muskogee, Talequah, OK Cherokee 30-Apr- Felts Plaza Inc.
74464 03
0676 8357 N. Rockwell, OKC, OK Oklahoma 31-Aug- Rockwell Acquistions,
73132 04 Inc.
0677 14351 N.E. 23rd, Choctaw, OK Oklahoma 30-Apr- Choctaw Plaza Shopping
73020 01 Center
0679 4621 N.W. 23rd, OKC, OK 73127 Oklahoma 28-Feb- Weingarten Nostat, Inc.
03
0680 Space #310, Enid, OK 73703 Garfield 31-Mar- Nicholas Investment
03 Company
0681 2107 College Blvd., Alva, OK Woods 30-Nov- Value Added Products
73717 00 (VAP)
0682 108 W. Oklahoma, Guthrie, OK Logan 31-May- Joe B and Bilie Stanbro
73044 01
0683 Space #1616, Stillwater, OK Payne 30-Apr- Today Cimarron L.P.
74075 02
0686 2108 E. Main St., Cushing, OK Payne 31-Oct- Parkview Management Co,
74023 02 LLC
0688 120 W. Taft, Sapulpa, OK 74066 Creek 30-Apr- Robson Properties
05
0689 507 E. 2nd Ave., Owasso, OK Tulsa 31-Aug- Ramsey
74055 02
0690 2021 N. Main St., Miami, OK Ottawa 31-Oct- Robson Properties
74354 04
0692 802 E. Illinois Hwy. 66 E., Craig 30-Jun- Robson
Vinita, OK 74301 01
0693 512 S.E. Washington Blvd., Washingt 31-Mar- Eastland, Inc
Bartlesville, OK 74003 on 01
0694 1017 W. Will Rogers, Rogers 31-Aug- Neely-Barstow
Claremore, OK 74017 02 Investments
0696 119 N. Broadway, Hugo, OK Choctaw 31-May- Red River Investments
74743 02
0697 1110 Main St., Grove, OK 74344 Delaware 31-Jan- Winters
06
0698 805 W. Ayre, Shawnee, OK 74801 Pottawat 28-Feb- Schneiter Enterprises
omie 01
0699 30 E. Choctaw, McAlester, OK Pittsbur 30-Jun- Mike & Lisa Kirk
74501 g 00
0700 2001 Center, Okmulgee, OK Okmulgee 30-Nov- Robson
74447 04
0701 1725 N. Milt Phillips, Seminole 31-Jan- Broadland Properties,
Seminole, OK 74868 03 Inc.
0703 605 S. Green, Purcell, OK McClain 31-Aug- Trend Venture
73080 01 Corporation
0704 1114 N. Pacific Ave., Mineola, Wood 31-Oct- Hughes Appliance, Inc.
TX 75773 02
0705 1209 Washington, Commerce, TX Hunt 30-Sep- Joe & Charlotte Embro
75428 0
0706 427 N. Main, Bonham, TX 75418 Fannin 31-Aug- Bewley
02
0707 30 N. Sheridan Rd., Lawton, OK Comanche 02-Nov- Rogers Commercial
73501 00 Property
0708 729 Moore Ave., Moore, OK Clevelan 31-Mar- New City Center
73160 d 09
0708 729 Moore Ave., Moore, OK Clevelan 31-Mar- TMP Investments, Inc.
73160 d 09
0709 615 W. Main, Norman, OK 73069 Clevelan 31-Mar- Safeway-Willard Venture
d 00
0709 615 W. Main, Norman, OK 73069 Clevelan 31-Mar- CBB Management Corp
d 00
0710 1235 Washington Ave., Custer 31-Oct- H B & B Company
Weatherford, OK 73096 03
0711 2003 S. Main, Elk City, OK Beckham 30-Apr- Hill
73644 03
0712 911 S. 10th, Clinton, OK 73601 Custer 30-Sep- JC 10 Properties LLC
02
0714 409 W. Main, Henryetta, OK Okmulgee 30-Apr- Estate of Doris Y.
74437 01 Bollinger
0716 1417 S. Midwest Blvd., Midwest Oklahoma 31-Jul- Atkinson Properties
City, OK 73110 03
0717 124-126 Burr Ave., Pauls Garvin 31-Oct- Pauls Valley Center,
Valley, OK 73075 00 Ltd.
0718 1027 W. Main, Durant, OK 74701 Bryan 31-Mar- Sooner Petroleum
01
0719 115 E. Main, Holdenville, OK Hughes 15-Jul- EMLO
74848 00
0720 1510 N. Hwy. 81, Duncan, OK Stephens 30-Apr- Fallis, Beall, Thomas
73533 02 Goodner
0721 1421 S. E. Washington, Space McCurtai 31-Mar- The Choctaw Nation of
#22, Idabel, OK 74745 n 03 Oklahoma
0722 2301B N. Broadway, Poteau, OK LeFlore 31-Aug- Wal-Mart Stores, Inc.
74953 05
0723 1900 E. Cherokee, Suite M, Sequoyah 31-Aug- Ocwen Federal Bank, FSB
Sallisaw, OK 74955 99
0724 301B. E. Main St., Atlanta, TX Cass 31-May- Clements Construction &
75551 02 Realty Co.
0725 304 W. Grand, Yoakum, TX 77995 Lavaca 31-May- O. B. Stanley
03
0726 100 E. Pine St., Deming, NM Luna 30-Sep- Stone
88031 02
0727 760 E. Charles Page Blvd., Tulsa 31-Aug- The Trust Company of
Sand Springs, OK 74063 04 Oklahoma
0728 623 1/2 Grand Ave., Chickasha, Grady 31-Jan- Grandview Limited
OK 73018 09
0732 2509 19th St. (Hwy 90), Hondo, Medina 31-Jan- Highway 90 Development,
TX 78861 08 LLC
0733 901 N. Sheppard Dr., Houston, Harris 31-Jan- CA Investments, LP
TX 77008 08
0734 3600 Country Club Dr., Space Cole 31-Jan- Capital Mall
#516, Jefferson City, MO 65109 08
0735 1213 Gilmore Ave., Winona, MN Winona 31-Jan- Winona Mall, Inc.
55987 08
0736 865 Hwy. 90 E., Bayou Vista, Saint 31-Jan- Kim Martin Company
LA 70380-5154 Mary 08
(St. Mary Plaza Shopping
Center)
0737 832 W. Washington Ave., #19, Becker 31-Jan- Washington Square, LP
Detroit Lakes, MN 56502 08
0743 1711 S. Memorial Dr., New Henry 31-Jan- New Castle Associates
Castle, IN 47362 10
0744 2333 N. Sixth St., Vincennes, Knox 31-Jan- Wayne Eisenbaum
IN 47591 09
0746 510 S. College Ave., Jasper 31-Jan- Wilbert and Peggy
Rensselaer, IN 47978 09 Hamstra
0747 120 First St. South, Buffalo, Wright 31-Jan- H and L Properties
MN 55313 09
0748 190 E. Main St., Cobleskill, Schohori 31-Jan- New Cobleskill
NY 12043 e 09 Associates, LP
0749 602 Shelton St., Suite B, Union 31-Jan- State Savings Bank,
Creston, IA 50801 City 09 Inc.
0750 160 N. Buchanan, Cambridge, MN Isanti 31-Jan- Cambridge Mall
55008 09 Receivership
0751 312 E. Young St., Suite F, Johnson 31-Jan- Warrensburg Development
Warrensburg, MO 64093 09 Co.
0752 366 W. Washington St., Bath, Steuben 31-Jan- Cavalier Development,
NY 14810 09 Ltd
0753 900 W. National Hwy., Space Daviess 31-Jan- Samuel & Sons Realty
#15, Washington, IN 47501 09 L.L.C.
0754 Space #605B, Oak Hill, WV Fayett 31-Jan- Libby-Fayette LLC
25901 09
0755 806 Pelham R. So., Calhoun 31-Jan- Porter Properties Inc.
Jacksonville, AL 36265 09
0757 Space #1, Shamokin, PA 17866 Northtum 31-Jan- Anthra Plaza
berland 09 Associates, Inc.
0758 1615 N. Harrison, Space #2, Hughes 31-Jan- Sequoia Investments I,
Pierre, SD 57501 09 LLC
0759 1001 E. Main St., Bradford, PA McKean 31-Jan- KR Bradford Mall, LP
16701 09
0760 1801 12th St., Hood River, OR Hood 30-Jul- Pan Pacific Retail
River 06 Properties, Inc.
0761 2660 S. Santiam Hwy., Lebanon, Linn 31-Jan- Lebanon Shopping Plaza
OR 97355 03
0762 880 Hwy. 395 So., Hermiston, Umatilla 31-Aug- Pan Pacific Retail
OR 97838 00 Properties, Inc
0763 1141 Pacific Hwy., Cottage Lane 31-Jan- Spring Investments, LLC
Grove, OR 97424 05
0764 1458 West Park Plaza, Ontario, Malheur 31-Jan- Alscott Real Estate,
OR 97914 01 LLC
0765 4157 N.W. Hwy. 101, Space Lincoln 31-Jan- Lighthouse Square
#130, Lincoln City, OR 97367 00
0766 16261 Hwy. 101, Brookings, OR Curry 31-Jan- South Coast Center LLC
97415 05
0767 1700 Mile Hill Dr., Port Kitsap 30-Dec- Albertson's, Inc.
Orchard, WA 98366 05
0768 8815 272nd Ave. N.W., Snohomis 31-Jan- Shopping Center
Stanwood, WA 98292 h 02 Properties of Stanwood
0769 405 Auburn Way South, Auburn, King 15-Jul- Sue Li Orwig
WA 98002 00
0770 703 Omache Dr., Omak, WA 98841 Okanogan 31-Jan- Targa Real Estate
05 Services. Inc.
0771 3100 Harrison Ave., Butte, MT Silver 31-Jan- Center Properties
59701 Bow 05
0772 1460 W. Winnemucca Blvd., Humboldt 31-Jan- Valley View Center
Winnemucca, NV 89445 04
0773 1825 W. Williams, Fallon, NV Churchil 30-Jun- Western Properties
89406 l 03 Trust
0774 2100 Idaho St., Elko, NV 89801 Elko 31-Jan- Elko Shopping Plaza
05
0816 11703A U.S. Highway 59 North, Harris 31-Jan- CenterAmerica Property
Houston, TX 77039 02 Trust, LP
0833 3305 Olton Rd., Plainview, TX Hale 31-Jan- BLI Plainview, Ltd
79072 05
0834 10th @ College, Alamogordo, NM Otero 10-Jul- Norwest Bank of New
88310 00 Mexico
0838 1801 E. FM 700, Space #M1, Big Howard 30-Apr- Alpha Lake, Ltd
Spring, TX 79720 05
0839 124 W. 22nd St., Clovis, NM Curry 31-Jan- Parkway Development
88101 01 Company
0841 Hwy. 84 Bypass, #5, Slaton, TX Lubbock 30-Sep- Dawkns
79364 00
0842 1601 W. Pierce, Carlsbad, NM Eddy 31-Jan- Northgate Corp.
88220 00
0846 1700 N. Main, Space #3, Altus, Jackson 31-Aug- Cossey
OK 73521 03
0847 Space #914, Ada, OK 74820 Pontotoc 31-Dec- Arlington Center, Ltd
02
0848 728 W. New Orleans, Broken Tulsa 30-Jun- Guardian Investors -
Arrow, OK 74012 02 Broken Arrow
0849 613 Hwy. 62/65 N. Bypass, Boone 31-Jan- Wal-Mart Stores, Inc.
Harrison, AR 72601 08
0850 412 S. Bryant, Edmond, OK Oklahoma 31-May- Weingarten Oklahoma,
73034 04 Inc.
0852 Space #725, Anadarko, OK 73005 Caddo 31-May- Uhlmann
04
0853 1107 S. Garth Brooks Blvd., Canadian 31-Aug- Chisholm West Shopping
Yukon, OK 73099 05 Center
0855 100 N. Dixieland Rd., Rogers, Benton 31-Jul- Dixie Land Mall, LLC
AR 72756 03
0856 Space #24, Ardmore, OK 73401 Carter 07-Mar- Raptor Investments
01 Limited Liability
Company
0857 1509 E. Main, Russellville, AR Pope 31-Jan- Keith Cogswell
72801 01
0858 1701 N. 14th St., Dodge City, Ford 31-Jan- Comanche Plaza
KS 67801 01
0859 2306 S. Jefferson, Suite A, Titus 31-Jan- Airport Plaza
Mount Pleasant, TX 75455 02 Associates
0860 2700 Ryan St., Lake Charles, Calcasie 30-Nov- Weingarten Realty
LA 70601 u 02 Investors
0861 833 Jct. Highway, Kerrville, Kerr 31-Jul- Chilcutt
TX 78028 03
0862 2900 W. Washington, Box #3, Erath 30-Sep- Bosque River Associates
Stephenville, TX 76401 00
0863 1510 E. Main St., Alice, TX Jim 30-Jun- Alicia Corporation
78332 Wells 02
0865 2320 S. Brahma Blvd., Kleberg 30-Jun- Alpha Lake, Ltd
Kingsville, TX 78363 05
0869 455 S. Bibb St., Space #9, Maverick 30-Apr- Enterprise Eagle Pass
Eagle Pass, TX 78852 04 Associates, LP
0870 2742 Old Erath Rd., Abbeville, Vermilli 31-Oct- Tiffany Plaza
LA 70510 on 04 Acquisition, LLC
0871 254 W. Main St., New Iberia, Iberia 30-Apr- Laure C. Landry,
LA 70560 01 Partnership
9004 6808 South Memorial, Suite Tulsa 31-Jan- Southwest Properties
200, Tulsa, OK 74133 02 Group - Tulsa L.P.
9006 121 North Popular, Searcy, AR White 30-Jul- Concord Milestone Plus
72143 01 L.P.
9009 4715 Billingsley Blvd., Unit Midland 30-Nov- Wal-Mart Stores, Inc.
C, Midland, TX 79701 04
9038 1102-B E. Broadway, Nolan 31-Aug- Great Southern life
Sweetwater, TX 79556 02 Insurance Company
9039 5525 Alameda Ave., Space #9, El Paso 30-Nov- Recal-Fox Plaza, LTD.
El Paso, TX 79905 03
9040 575 S. Main, Las Cruces, NM Donna 31-Mar- Campo Loretto Operating
88001 Anna 03 Assoc. LP
9202 10201 Main Street, Houston, TX Harris 31-Jul- P. R. I. Investments
77025 32
9206 2575 West Belfort, Houston, TX Harris 31-Oct- Mary Lake Realty
77025 13 Company
9207 7350 Mykawa, Houston, TX Harris 30-Nov- ProLogis Trust
02
9208 3936 East I-240, OKC, OK Oklahoma 31-Oct- Pioneer Park, LLC
02
SCHEDULE 4.01(w)
List of investments as of June 2, 2000, held by any Loan Party
and its Subsidiaries with the amount, obligor, issuer and
maturity.
Outstand
Grantor Debt Issuer Description Debt Maturity ing
Certificate Principa
No(s). l Amount
Specialty Carl Tooker Loan N/A 04/15/1998 140,000.
Retailers, 00
Inc.
Specialty Carl Tooker Loan N/A 04/15/1998 203,200.
Retailers, 00
Inc.
Specialty Carl Tooker Loan N/A 07/15/1999 175,000.
Retailers, 00
Inc.
Specialty Carl Tooker Loan N/A 09/15/1999 125,000.
Retailers, 00
Inc.
Specialty Carl Tooker Loan N/A 04/14/2000 200,000.
Retailers, 00
Inc.
Specialty Carl Tooker Loan N/A 11/03/2000 200,000.
Retailers, 00
Inc.
Specialty Stephen Lovell Loan N/A 06/01/2000 150,000.
Retailers, 00
Inc.
Specialty Stephen Lovell Loan N/A 04/01/1999 125,000.
Retailers, 00
Inc.
Specialty Stephen Lovell Loan N/A 02/27/1999 142,679.
Retailers, 00
Inc.
Specialty Stephen Lovell Loan N/A 04/14/2000 25,000.0
Retailers, 0
Inc.
Specialty Stephen Lovell Loan N/A 10/06/2000 20,000.0
Retailers, 0
Inc.
Specialty Stephen Lovell Loan N/A 11/03/2000 71,814.5
Retailers, 9
Inc.
Specialty Ron Lucas Loan N/A 04/29/1999 377,194.
Retailers, 61
Inc.
Specialty Ron Lucas Loan N/A 04/14/2000 145,000.
Retailers, 00
Inc.
Specialty Ron Lucas Loan N/A 11/03/2000 107,298.
Retailers, 00
Inc.
Specialty Tom Buttaccio Loan N/A 11/15/2001 8,427.86
Retailers,
Inc.
Specialty Bernie Locklear Loan N/A Demand 33,172.2
Retailers, 6
Inc.
Specialty Jonathan Pike Loan N/A Demand 20,000.0
Retailers, 0
Inc.
Specialty Bruce Harsha Relocation N/A Demand 4,000.00
Retailers, Advance
Inc.
Specialty Charles Sledge Bonus Advance N/A Demand 31,000.0
Retailers, 0
Inc.
SRI (NV) Specialty Loan N/A Open 191,867,
Retailers, Inc. 527.74
Specialty SRI Receivables Intercompany N/A Open 19,765,4
Retailers, Purchase Co. Payable 41.16
Inc.
Stage Stores, SRI (NV) Intercompany N/A Open 59,637.0
Inc. Payable 0
SCHEDULE 4.01(x)
List of patents, trademarks, trade names, service marks,
copyrights, applications therefor, and licenses thereof of any
Loan Party and its Subsidiaries with the jurisdiction of
registration, registration number, registration date and
expiration date.
Seria Reg.
Mark Loc l No. No. Class Goods/Services Statu Due
ali (i) (ii) s Date
ty Filin Reg.
g Date
Date
7 N. Fed 73/43 1,314, Int'l Shoes Regis Renew:
BROADWAY era 0,098 725 25 tered 01/15/0
l 06/13 01/15/ 5
/83 85
701 Fed 73/45 1,314, Int'l Children's, ladies' and Regis Renew:
COLLECTIO era 3,286 752 25 men's wearing tered 01/15/0
N l 11/17 01/15/ apparel-namely, pants, 5
/83 85 shirts and coats
A T B & Fed 73/26 1,211, Int'l Pants and shirts Regis Renew:
Design era 6,361 638 25 tered 10/05/0
l 06/16 10/05/ 2
/80 82
ANTHONYS Fed 73/72 1,517, Int'l Department store services Regis Renew:
stylized era 5,854 648 42 tered 12/20/0
letters l 05/02 12/20/ 8
/88 88
ANTHONY'S Fed 73/52 1,356, Int'l Men's underwear briefs Regis Renew:
& Design era 2,014 890 25 and tops tered 08/27/0
l 02/13 08/27/ 5
/85 85
ANTHONY'S Fed 73/52 1,355, Int'l Men's underwear briefs Regis Renew:
era 2,015 562 25 and tops tered 08/20/0
l 02/13 08/20/ 5
/85 85
ANTINOS Fed 73/31 1,205, Int'l Shoes Regis Renew:
Stylized era 7,757 553 25 tered 08/17/0
Letters l 07/06 08/17/ 2
/81 82
ATB Fed 73/37 1,248, Int'l Shoes Regis Renew:
Stylized era 1,721 443 25 tered 08/16/0
Letters l 06/25 08/16/ 3
/82 83
ATB & Fed 73/11 1,178, Int'l Shirts and pants Regis Renew:
Design era 7,054 224 25 tered 11/17/0
l 02/25 11/17/ 1
/77 81
ATB Fed 74/31 1,773, Int'l Western-style pants and Regis Renew:
AUTHENTIC era 9,746 061 25 shirts tered 05/25/0
WESTERN l 10/5/ 05/25/ 3
WEAR & 92 93
Design
AUSTIN Fed 75/82 Int'l clothing, namely men's Pendi
STEELE era 0,736 25 shirts, sweaters, sport ng
LTD. l 10/12 shirts, slacks, woven
/99 shirts, and sportswear.
BEALLS Fed 73/56 1,563, Int'l Retail store services for Regis Renew:
era 0,559 887 42 clothing, shoes, jewelry, tered 10/31/0
l 09/27 10/31/ accessories, cosmetics 9
/85 89 and other soft goods
BEALLS Fed Int'l Retail store services in Propo
era 35 home decorative sed
l accessories including
glass, crystal, silver,
pottery, furniture, and
picture frames; retail
stores services in
kitchen accessories
including plates,
glasses, place mats,
napkins; retail store
services in bedroom
accessories including
sheets, comforters,
throws, decorative
pillows, towels; retail
store services in
stationary supplies
including bags, tissue
and albums; retail store
services in sporting
apparel and sporting
goods including clothing,
sportswear, shoes, bats,
balls, mitts, wrist
banks, knee pads, golf
gloves, batting gloves,
footballs, basketballs,
soccer balls, and
sporting accessories
BEALLS Fed Int'l Retail store services in Propo
HOME era . 35 home decorative sed
l accessories including
glass, crystal, silver,
pottery, furniture, and
picture frames; retail
stores services in
kitchen accessories
including plates,
glasses, place mats,
napkins; retail store
services in kitchen
accessories including
sheets, comforters,
throws, decorative
pillows, towels; retail
store services in
stationary supplies
including bags, tissue
and albums;
BEALLS Fed Int'l Retail store services in Propo
SPORTS era 35 sporting apparel and sed
l sporting goods including
clothing, sportswear,
shoes, bats, balls,
mitts, wrist banks, knee
pads, golf gloves,
batting gloves,
footballs, basketballs,
soccer balls, and
sporting accessories
BUCKHIDE Fed 71/29 268,76 Int'l Work pants, work shirts, Renew Renew:
tylized era 1,197 0 25 work coats, overalls, for ed 03/18/0
Letters l 10/18 03/18/ men and boys; play suits 0
/29 30 for children
CHEVRON OK None 29144 State Games, toys and sporting Regis Renew:
DESIGN 01/21 01/21/ 22 goods tered 01/23/0
/83 83 3
CHEVRON Fed 73/52 1,590, Int'l Athletic shoes Regis Renew:
DESIGN era 7,017 004 25 tered 04/03/0
l 03/15 04/03/ 0
/85 90
CHEVRON OK None 29143 State Clothing Regis Renew:
DESIGN 01/21 01/21/ 39 tered 01/23/0
/83 83 3
CHEVRON Fed 73/26 1,265, Int'l Athletic shoes Regis Renew:
DESIGN era 5,314 050 25 tered 01/24/0
l 06/09 01/24/ 4
/80 84
COPPER Fed 74/58 1,984, Int'l Sportswear, viz, men's Regis 8&15
CREEK era 1,484 674 25 and women's sport shirts, tered Due:
l 10/03 07/02/ shorts and trousers 07/02/0
/94 96 1-02
Renew:
07/02/0
6
COPPER Fed Int'l Clothing, namely - Propo
CREEK era 25 sweaters, t-shirts, and sed
l jeans
DOUBLE CO None 901053 State Clothing Regis Renew:
EXPOSURE 141 39 tered 05/18/0
05/18/ 0
90
DOUBLE WY None 260464 State Regis Renew:
EXPOSURE 05/18/ 39 tered 05/18/0
90 0
FASHION Fed 73/66 1,475, Int'l (25) Men's and women's Regis Renew:
BAR era 0,674 069 25 ready to wear apparel, tered 02/02/0
l 05/14 02/02/ Int'l namely suits, dresses, 8
/87 88 42 slacks, trousers, sport
coats, skirts, shirts,
blouses, sweaters,
jackets, coats,
underwear, sleepwear,
head-wear, hosiery,
belts, shoes, ties, and
scarves ; (42) Retail
store services in the
field of men's and
women's ready to wear
apparel
FASHION CO None T9943 State Advertising and business Regis Renew:
BAR 06/06/ 101 tered 06/06/0
72 2
FASHION CO None 851009 State Clothing Regis Renew:
BAR 933 39 tered 06/04/0
06/04/ 2
72
FAST BAK Fed 73/26 1,201, 25 Athletic shoes Regis Renew:
era 5,502 207 tered 07/13/0
l 06/09 07/13/ 2
/80 82
FB PETITE Fed 73/66 1,475, Int'l (25) Women's ready to Regis Renew:
era 0,675 070 25 wear, apparel, namely tered 02/02/0
l 05/14 02/02/ Int'l dresses, slacks, skirts,
/87 88 42 blouses, sweaters,
jackets, coats,
sleepwear, headwear,
hosiery, belts and
scarves; (42) Retail
store services in the
field of women's ready to
wear apparel
GRAFFICS CO None 901109 State For clothing Regis Renew:
983 39 tered 12/27/0
12/27/ 0
90
GRAPHITE Fed 74/80 1,938, Int'l Men's jeans, shirts, Regis 8&15
era 2,481 934 25 t-shirts and fleece tops. tered Due:
l 07/08 11/28/ 11/28/0
/94 95 0-01
Renew:
11/28/0
5
GRAPHITE Fed 75/97 2,011, Int'l Watches Clothing namely, Regis 8&15
era 5,306 195 14 junior's and infant's tered Due:
l 07/08 10/22/ Int'l clothing namely, jeans, 10/22/0
/94 96 25 shirts, t-shirts, fleece 1-02
tops, shorts, skirts, and Renew:
bottoms; and men's 10/22/0
clothing namely, shorts 6
and bottoms
GRAPHITE Fed 75/13 2,242, Int'l Sunglasses Regis 8&15
era 7,592 181 9 tered Due:
l 07/22 04/27/ 04/27/0
/96 99 4-05
Renew:
04/27/0
9
GRAPHITE Fed Intl. Jewelry in International Propo
era 14, Class 14; Clothing, sed
l 25 namely - juniors tops and
bottoms, children's
socks, in International
Class 25.
HANNAH Fed 73/66 1,475, Int'l (25) Women's ready to Regis Renew:
era 0,672 067 25 wear apparel, namely tered 02/02/0
l 05/14 02/02/ Int'l dresses, slacks, skirts, 8
/87 88 42 blouses, sweaters,
jackets, coats,
sleepwear, headwear,
hosiery, belts, shoes and
scarves; (42) Retail
store services in the
field of women's ready to
wear apparel
HANNAH CA None 89074 State Women's ready to wear Regis Renew:
12/14/ 39 apparel tered 12/14/0
88 8
PALAIS AR TM1128 State Advertising and business Regis Renew:
ROYAL 01/04/ 101 tered 01/04/0
99 4
PALAIS Fed 75/74 Int'l Retail stores services Pendi Respons
ROYAL era 4,175 35 featuring men's, women's, ng e to
l 07/06 children's and infant's Office
/99 clothing and accessories, Action
head coverings, hats, Due:
caps, scarves, shoes, 04/05/0
jewelry, hosiery, 0
foundations, lingerie,
watches, sunglasses, swim
wear, cosmetics, perfume,
health and beauty aides,
leather goods, wallets,
handbags, candles,
glassware, crystal,
picture frames, and gift
items
PALAIS Fed 75/74 Int'l Retail sale of men's, Pendi Respons
ROYAL era 4,411 42 women's, children's and ng e to
l 07/07 infant's clothing and Office
/99 accessories, head Action
coverings, hats, caps, Due:
scarves, shoes, jewelry, 04/05/0
hosiery, foundations, 0
lingerie, watches,
sunglasses, swim wear,
cosmetics, perfume,
health and beauty aides,
leather goods, wallets,
handbags, candles,
glassware, crystal,
picture frames, and gift
items
PALAIS Fed Retail store services in
ROYAL era kitchen accessories
l including sheets,
comforters, throws,
decorative pillows,
towels; retail store
services in stationary
supplies including bags,
tissue and albums; retail
store services in
sporting apparel and
sporting goods including
clothing, sportswear,
shoes, bats, balls,
mitts, wrist banks, knee
pads, golf gloves,
batting gloves,
footballs, basketballs,
soccer balls, and
sporting accessories
PALAIS LA None State Miscellaneous Services Regis Renew:
ROYAL 08/03/ 42 tered 08/03/0
98 8
PALAIS TX None 28128 State Advertising and business Regis Renew:
ROYAL 01/23/ 101 tered 01/23/1
70 0
PALAIS TX None 28129 State Clothing Regis Renew:
ROYAL 01/23/ 25 tered 01/23/1
70 0
PALAIS Fed Int'l Retail store services in Propo
ROYAL era 35 home decorative sed
HOME l accessories including
glass, crystal, silver,
pottery, furniture, and
picture frames; retail
stores services in
kitchen accessories
including plates,
glasses, place mats,
napkins; retail store
services in bedroom
accessories including
sheets, comforters,
throws, decorative
pillows, towels; retail
store services in
stationary supplies
including bags, tissue
and albums.
PALAIS Fed Int'l (35) Retail store Propo
ROYAL era 35 services in the field of sed
SPORTS l Int'l sporting apparel and
TBA goods; (TBA) Sporting
apparel and goods,
namely, sport wear,
shoes, bats, balls,
mitts, wrist bands, knee
pads, golf gloves,
batting gloves,
footballs, basketballs,
soccer balls, sporting
accessories.
REBECCA CO None 901053 State Clothing Regis Renew:
MALONE 142 39 tered 05/18/0
05/18/ 0
90
REBECCA WY None 260465 State Clothing Regis Renew:
MALONE 05/18/ 39 tered 05/18/0
90 0
REBECCA Fed 75/88 Int'l (25) Women's clothing Pendi
MALONE era 2,619 14 apparel; namely, blouses, ng
l 12/28 Int'l pants, shirts, sweaters,
/99 25 jackets, knit tops and
handbags (14) Jewelry
ROYAL Fed 74/60 2,041, Int'l Clothing, including Regis 8&15
WEAR era 5,688 095 25 casual and dress tered Due:
l 10/05 02/25/ clothing, namely jeans, 02/25/0
/94 97 slacks, shorts, shirts, 2-03
blouses, jackets and Renew:
sweaters 02/25/0
7
ROYAL Fed 74/51 1,972, Int'l Ladies sportswear, namely Regis 8&15
STUDIO era 6,571 203 25 shirts, blouses, tered Due:
l 04/21 05/07/ sweaters, slacks, shorts, 05/07/0
/94 96 skirts and jackets 1-02
Renew:
05/07/0
6
ROYAL Fed 74/51 1,964, Int'l Ladies sportswear, namely Regis 8&15
SPORT era 6,052 989 25 shirts, blouses, tered Due:
l 04/21 04/02/ sweaters, slacks, shorts, 04/02/0
/94 96 skirts, jackets and 1-02
fleece tops and bottoms Renew:
04/02/0
6
ROYAL Fed 74/51 2,044, Int'l Dickies Regis 8&15
ACCESSORI era 6,574 111 25 tered Due:
ES l 04/21 03/11/ 03/11/0
/94 97 2-03
Renew:
03/11/0
7
ROYAL Fed 75/97 2,031, Int'l (18) Handbags, (25) Regis 8&15
ACCESSORI era 5,499 265 18 scarves tered Due:
ES l 04/21 01/14/ Int'l 01/14/0
/94 97 25 2-03
Renew:
01/13/0
7
ROYAL Fed 74/51 1,972, Int'l Plus size ladies Regis 8&15
WOMAN era 6,572 204 25 sportswear; namely, tered Due:
l 04/21 05/07/ shirts, blouses, 05/07/0
/94 96 sweaters, slacks, shorts, 1-02
skirts and jackets Renew:
05/07/0
6
ROYAL Fed 74/65 2,022, Int'l Ladies sportswear, namely Regis 8&15
PETITE era 0,357 556 25 shirts, blouses, tered Due:
l 03/20 12/10/ sweaters, slacks, shorts, 12/10/0
/95 96 skirts and jackets. 1-02
Renew:
12/10/0
6
ROYAL Fed 74/51 2,022, Int'l Socks Regis 8&15
LEGWEAR era 6,053 381 25 tered Due:
l 04/21 12/10/ 12/10/0
/94 96 1-02
Renew:
12/10/0
6
SPECIALTY OH None TM14,9 State Men's, women and Regis Renew:
COLLECTIO 89 25 children's clothing & tered 04/11/0
N 04/11/ accessories. 7
97 Mark
not
used
per
client.
SPECIALTY OK None 26222 State Men's, women's and Regis Renew:
COLLECTIO 01/27/ 39 children's clothing and tered 01/27/0
N 94 accessories. 4
Mark
not
used
per
client.
SPECIALTY NM None TK9402 State Men's, women's and Regis Renew:
COLLECTIO 0302 children's clothing and tered 02/03/0
N 02/03/ accessories. 4
94 Mark
not
used
per
client.
SPECIALTY TX None 53190 State Man's, women's and Regis Renew:
COLLECTIO 01/27/ 25 children's clothing and tered 01/27/0
N 94 accessories. 4
Mark
not
used
per
client.
SPECIALTY WI None State Clothing Regis Renew:
COLLECTIO 10/01/ 39 tered 10//01/
N 97 07
Mark
not
used
per
client.
SPECIALTY MT 019600 State Clothing Regis Renew:
OLLECTIO 10/06/ 2 MM tered 10/06/0
N 97 7
Mark
not
used
per
client.
SPECIALTY MO None 13120 State Men's, women's and Regis Renew:
COLLECTIO 01/23/ 39 childrens' clothing and tered 01/23/0
N and 95 accessories. 5
Design Mark
not
used
per
client.
SPECIALTY MS None None State Men's, women's and Regis Renew:
COLLECTIO 05/18/ 39 children's clothing and tered 05/18/0
N and 95 accessories 5
Design Mark
not
used
per
client.
SPECIALTY ND None None State Clothing Regis Renew:
COLLECTIO 02/19/ 39 tered 02/19/0
N 98 8
Mark
not
used
per
client.
SPECIALTY MN None 25,335 State Men's, women and Regis Renew:
COLLECTIO 09/09/ 25 children's clothing & tered 09/09/0
N 96 accessories. 6
Mark
not
used
per
client.
SPECIALTY KS None None State Clothing for; men's, Regis Renew:
COLLECTIO 05/19/ 39 women's and children's tered 05/19/0
N and 95 clothing and accessories. 5
Design Mark
not
used
per
client.
SPECIALTY IN None 1997-0 State Men's, women and Regis Renew:
COLLECTIO 068 39 children's clothing & tered 02/06/0
N 02/17/ accessories. 7
97 Mark
not
used
per
client.
SPECIALTY IL None 076577 State Men's, women's and Regis Renew:
COLLECTIO 05/25/ 39 children's clothing and tered 05/25/0
N and 95 accessories. 5
Design Mark
not
used
per
client.
SPECIALTY CO None 941009 State Clothing Regis Renew:
OLLECTIO 832 25 tered 01/26/0
N and 01/26/ 4
Design 94 Mark
not
used
per
client.
SPECIALTY AZ None TM0003 State Men's, women and Regis Renew:
OLLECTIO 8211 25 children's clothing & tered 08/23/0
N 08/23/ accessories. 6
96 Mark
not
used
per
client.
SPECIALTY AR None 130-95 State Men's, women and Regis Renew:
COLLECTIO 05/17/ 39 children's clothing & tered 05/17/0
N 95 accessories. 0
Mark
not
used
per
client.
SPECIALTY AL None 105-92 State Men's, women's and Regis Renew:
COLLECTIO 5 25 children's clothing and tered 01/27/0
N and 01/27/ accessories. 4
Design 94 Mark
not
used
per
client.
SPECIALTY WY None 94-228 State Men's, women's and Regis Renew:
COLLECTIO 8248 39 children's clothing and tered 01/26/0
N 01/26/ accessories 4
94 Mark
not
used
per
client.
SPECIALTY NE None 54,848 State Men's, women and Regis Renew:
COLLECTIO 09/09/ 25 children's clothing & tered 09/09/0
N 96 accessories. 6
Mark
not
used
per
client.
SPECIALTY LA None None State Clothing; men's, women's Regis Renew:
COLLECTIO 05/17/ 25 and children's clothing tered 05/17/0
N and 95 accessories 5
Design Mark
not
used
per
client.
SPECIALTY MI None M01-51 State Men's, women and Regis Renew:
COLLECTIO 6 39 children's clothing & tered 08/04/0
N 08/04/ accessories 7
97 Mark
not
used
per
client.
SPECIALTY SD None None State Men's, women and Regis Renew:
LLECTIO 09/16/ 25 children's clothing & tered 09/16/0
N 96 accessories. 6
Mark
not
used
per
client.
SPIRIT CO None 851016 State Clothing Regis Renew:
100 39 tered 06/09/0
06/09/ 9
79
SPIRIT KS None 07/31/ State Advertising and business Regis Renew:
80 02 for retail sales of tered 04/19/0
women's clothing 0
SPIRIT NM None TK9005 Regis Renew:
0304 tered 07/10/0
05/03/ 0
80
SPIRIT Fed Int'l New Goods - t-shirts, Propo
era 25 shorts, children's & sed
l men's active wear
STAGE CO None 198510 State Women's ready to wear of Regis Renew:
15480 101 all kinds tered 11/08/0
11/08/ 8
78
STAGE CO None 198510 State Women's, girl's, Regis Renew:
15479 39 children's, men's and tered 02/17/0
02/17/ boy's ready to wear of 9
69 all kinds
STAGE CA None 89104 State Garments, women's ready Regis Renew:
12/16/ 39 to wear apparel such as tered 12/16/0
88 dresses and sportswear 8
STAGE Fed Bubble bath, non- Propo
era medicated bath crystals, sed
l bath scrubs, hand and
body lotions, perfumes
and skin soaps in
international class 3;
hand held mirrors in
international class 20;
hair brushes and hair
combs in international
class 21; and men's,
women's and children's
ready wear clothing,
namely, underwear,
hosiery, socks, suits,
blouses, sweaters,
jackets, coats, sleep
wear, robes, lounge wear,
head wear, pants, jeans,
short, t-shirts, fleece
tops, sweat suits in
international class 25;
STAGE Fed Int'l Retail store services in
era 35 men's, women's and
l children's ready to wear
clothing, including
underwear, hosiery,
socks, suits, blouses,
sweaters, jackets, coats,
sleep ware, robes, lounge
wear, head wear, pants,
jeans, shorts, t-shirts,
fleece tops, sweat suits;
retail store services in
sporting merchandise,
including sportswear,
shoes, bats, balls,
mitts, wrist bands, knee
pads, golf gloves,
batting gloves,
footballs, basketballs,
soccer balls, and
sporting accessories;
retail store services in
home merchandise,
including, furniture,
house wares, and
decorative accessories of
glass and crystal, silver
accessories, pottery,
picture frames, kitchen
accessories, including
plates, glasses, place
mats, napkins, and
bedroom accessories,
including sheets,
comforters, throws,
decorative pillows
towels; retail store
services in stationary,
including bags, tissue,
and albums.
Fed 73/66 1,525, Int'l (25) Women's ready to Regis Renew:
era 0,706 762 25 wear apparel, namely, tered 02/21/0
STAGE l 05/14 02/21/ Int'l shirts, dresses, coats, 9
/87 89 42 belts and shoes; (42)
Retail store services in
the field of clothing,
shoes and accessories
STAGE NY Propo
sed
STAGE PA Propo
sed
STAGE Fed Int'l Retail store services in Propo
HOME era 35 home merchandise, sed
l including, furniture,
house wares, and
decorative accessories of
glass and crystal, silver
accessories, pottery,
picture frames, kitchen
accessories, including
plates, glasses, place
mats, napkins, and
bedroom accessories,
including sheets,
comforters, throws,
decorative pillows
towels; retail store
services in stationary,
including bags, tissue,
and albums.
STAGES Fed Propo
era sed
l
STAGE Fed Int'l Retail store services in Propo
SPORTS era 35 sporting merchandise, sed
l including sportswear,
shoes, bats, balls,
mitts, wrist bands, knee
pads, golf gloves,
batting gloves,
footballs, basketballs,
soccer balls, and
sporting accessories
STG Fed 75/89 Int'l Pendi
STUDIO era 5,717 25 ng
l 01/12
/00
SUN RIVER Fed 75/04 2,285, Int'l Clothing for adults and Regis 8&15
CLOTHING era 0,261 764 25 children, namely, tops, tered Due:
. l 01/04 10/12/ bottoms, shirts, 10/12/0
/96 99 sweaters, sweatshirts, 4-05
t-shirts, jeans, slacks, Renew:
shorts, hosiery, shoes, 10/12/0
sneakers, scarves, ties, 9
belts and suspenders
SUN RIVER Fed 75/97 2,080, Int'l Clothing for adults, Regis 8&15
CLOTHING era 6,054 349 25 namely, tops, bottoms, tered Due:
CO. l 01/04 07/15/ jeans sweatshirts, 07/15/0
/96 97 slacks, and shorts 2-03
Renew:
07/15/0
7
SUN RIVER Fed 74/69 2,088, Int'l Women's clothing, Regis 8&15
CLOTHING era 2,574 109 25 including casual and tered Due:
CO. l 06/23 08/12/ dress clothing, namely 08/12/0
/95 97 pants, t-shirts, 2-03
sweatshirt, blouses and Renew:
shoes 08/12/0
7
SUN RIVER Fed 75/97 2,051, Int'l Women's clothing, Regis 8&15
CLOTHING era 5,639 646 25 including casual and tered Due:
CO. l 06/23 04/08/ dress clothing, namely 04/08/0
/95 97 jeans, dresses, skirts, 2-03
shorts, shirts and Renew:
sweaters 04/08/0
7
SUN RIVER Fed 75/11 2,089, Int'l Women's clothing, namely Regis 8&15
CLOTHING era 6,355 020 25 skorts and rompers tered Due:
. l 06/10 08/19/ 08/19/0
/96 97 2-03
Renew:
08/19/0
7
SUN RIVER Fed Clothing, namely - mens's Propo
CLOTHING era sweaters, jogging suits, sed
CO. l woven shirts, and casual
pants.
WHISPERS Fed 74/65 2,094, Int'l Cosmetics, namely, body Regis 8&15
era 5,468 031 3 lotion, bath & shower tered Due:
l 04/03 09/09/ gel, bubble bath, bath 09/09/0
/95 97 scrub, bath crystals, 2-03
soap and potpourri Renew:
09/09/0
7
WHISPERS Fed 433,7 1,294, Int'l Lingerie Regis Renew:
era 57 565 25 tered 09/11/0
l 07/08 09/11/ 4
/83 84
ISPERS Fed 74/65 2,032, Int'l Legwear, namely Regis
era 5,469 862 25 pantyhose, banded tights tered 8&15
l 04/03 01/21/ and socks Due:
/95 97 01/21/0
2-03
Renew:
01/21/0
7
WHISPERS Fed Int'l Additional Goods - Propo
era 25 clothing, namely - sed
l sleepwear and panties
CO None 881057 State Clothing Aband Renew:
368 39 oned 06/01/98
and 06/01/
Design 88
BY CO None 881007 State Clothing Regis Renew:
REQUEST 229 39 tered 02/23/08
02/23/
88
APHITE Fed 74/54 Int'l Handbags Aband S
era 7279 18 oned tatement
l 07/08 of Use
/94 due:
01/16/98
6th
extensio
n not
availabl
e
DOUBLE R Fed 75/41 Int'l Cosmetics, lotions and Aband
DESIGN era 3,239 3 bubble bath oned
l 01/02
/98
HANNAH CA none 89074 State Women's ready to wear Aband Renew:
12/14/ 39 apparel. oned 12/14/98
88
MISS Fed 74/20 1,705, Int'l Shoes Aband 8 &
JENNIFER era 1,058 125 25 oned 15 Due:
l 09/06 08/04/ 08/04/98
/91 92 Renew:
08/04/02
CAREER CO None T33578 State Clothing Expir Renew:
DESIGNS 07/13/ 39 ed 07/13/97
87
BY WY None 246761 State For clothing Expir Renew:
REQUEST 02/23/ 39 ed 02/23/98
(Stylized 88
)
DIMENSION Fed 560,8 1,391, Int'l Shoes Cance
80 era 81 685 25 lled
l 09/30 04//29
/85 /86
DOUBLE WY None 260464 State Ladies clothing Regis Renew:
EXPOSURE 05/18/ 39 tered 05/18/00
90
ETHAN CO None T31258 State Clothing Expir
07/25/ 39 ed
86
EXPRESSIO CO None 851027 State Advertising and business Expir
NS 057 101 ed
09/10/
94
FB Fed 670,2 1,543, Int'l (25) Men's and women's Cance
(Stylized era 95 605 25 ready to wear apparel, lled
) l 07/06 06/13/ Int'l namely suits, dresses,
/87 89 42 slacks, trousers, sport
coats, skirts, shirts,
blouses, sweaters,
jackets, coats,
underwear, sleepwear,
headwear, hosiery, belts,
shoes, ties and scarves;
(42) Retail store
services in men's and
women's ready to wear
apparel and intimate
apparel, shoes and
accessories
FB CO None T32864 State Clothing Expir Renew:
04/06/ 39 ed 04/06/97
87
FB CO None T32863 State Advertising and business Expir Renew:
04/06/ 101 ed 04/06/97
87
FB Fed 660,6 1,475, Int'l (25) Women's ready to Cance
CAREERS era 73 068 25 wear apparel, namely lled
l 05/14 02/02/ Int'l dresses, slacks, skirts,
/87 88 42 blouses, sweaters,
jackets, coats,
sleepwear, headware,
hosiery, belts,
underwear, shoes; (42)
Retail store services in
women's ready to wear
apparel
FB CO None T19339 State Ladies ready to wear of Expir
CAREERS 04/16/ 39 all kinds ed
81
FB DESIGN CO None None State Furniture, furnishings, Expir
10/01/ 23, fixtures, accessories and ed
73 30, related items and
32, articles appertaining
33, thereto of all kinds;
39, clothing.
42,
50,
101
FB DESIGN WY None 02884 State Advertising and business Expir
10/25/ 101 ed
79
FB CO None T26504 State Advertising and business Expir
EXPRESSIO 06/13/ 101 ed
NS 84
FB LTD. CO None T19333 State Men's clothing of all Expir
04/16/ 39 kinds ed
81
FB PETITE CO None T31518 State On labels attached to Expir
09/12/ 39 ladies' ready-to-wear. ed
86
FB PETITE CO None T29404 State Advertising and business Expir
09/27/ 101 ed
85
HANNAH CO None T31517 State Ladies' ready to wear. Expir
09/12/ 39 ed
86
HANNAH CO None T31519 State Retail sales of women's Expir
09/12/ 101 ready to wear. ed
86
I'M CO None None State Clothing Expir Renew:
OLORADO 12/29/ 39 ed 12/29/97
PROUD 87
J.B. CO None T3129? State Men's shirts, ties, suits Expir
BRITTON 07/25/ 39 and sweaters ed
86
JEFFREY Fed 560,5 1,400, Int'l Men's shirts, shorts, Cance
BROWN era 62 432 25 pants and sweatsuits lled
l 09/27 07/08/
/85 86
KENDRA CO None T33576 State Clothing Expir Renew:
07/13/ 39 ed 07/13/97
87
KENDRA WY None 243632 State Clothing Expir Renew:
08/10/ 39 ed 08/10/97
87
KENDRA CO None T33577 State Clothing Expir Renew:
SPORT 07/13/ 39 ed 07/13/97
87
NDRA WY None 243631 State Clothing Expir Renew:
PORT 08/10/ 39 ed 08/10/97
87
L'UOMO CO None T31256 State Men's wearing apparel Expir
07/25/ 39 ed
86
L'UOMO KS None None State Retail sales of women's Expir
07/21/ 2 clothing ed
80
L'UOMO NM None 13,856 None Business and advertising Regis Renew:
07/10/ tered 07/10/00
80
MISS Fed 73/56 Int'l Shoes Aband
JENNIFER era 0,807 25 oned
l 09/30
/85
REBECCA WY None 260465 State Ladies clothing Regis Renew:
MALONE 05/18/ 39 tered 05/18/00
90
ROYAL Fed 74/51 Int'l Clothing and accessories Aband
ACTIVE era 6,573 25 oned
l 04/21
/94
SPIRIT CA None 088573 None Ready to wear apparel Regis Renew:
09/21/ such as dresses and tered 09/21/98
88 sportswear
SPIRIT KS None None State Retail sales of women's Regis Renew:
07/31/ 2 clothing tered 07/31/00
90
SPIRIT NM None 13853 None Retail sales of women's Regis Renew
07/10/ clothes tered 07/10/00
80
SPIRIT WY None 80- State Clothing Regis Renew:
177708 39 tered 08/16/99
08/16/
89
STAGE KS None None State Retail sales of women's Regis Renew:
07/31/ 2 clothing tered 07/31/00
90
STAGE NM None 13845 None Business and Advertising Regis Renew:
07/10/ tered 07/10/00
80
STAGE AZ None 26826 State Unknown Expir Renew:
WOMENS 11/18/ 25 ed 11/18/98
APPAREL 88
TAMARON CO None T31257 State Ladies wearing apparel, Expir
07/25/ 39 fashion accessories, ed
86 shoes and accessories
TIMBRE CO None T31259 State Men's wearing apparel Expir
07/25/ 39 ed
86
TURTLE Fed 683,3 1,553, Int'l Men's and women's Cance
CREEK era 37 797 25 apparel, namely shorts, lled
l 09/10 08/29/ skirts, pants, woven
/87 89 skirts, sweaters, skit
tops, woven tops, fleece
tops, coats and woven
skirts
WHISPERS Fed 73/56 Int'l Ladies' sleepwear Aband
era 0,561 25 oned
l 09/27
/85
WHISPERS Fed 74/65 Int'l Womens', juniors' and Cance 8 and
era 5,467 25 childrens' sportswear, lled 15 Due
l 04/03 namely shirts, blouses, 06/10/97
/95 sweaters, slacks, shorts,
skirts and jackets,
dresses and coats
WYNNWOOD Fed 73/68 1,583, Int'l Men's apparel and Cance
COLLECTIO era 3,336 731 25 accessories, namely, lled
N l 09/10 02/20/ suits, sport coats, dress
/87 90 shirts, dress slacks,
casual slacks, woven
sport shirts, ties,
sweaters, knit shirts,
coats and hosiery
WYNWOOD Fed 73/69 1,568, Int'l Men's apparel and Cance
COLLECTIO era 1,051 465 25 accessories, namely, lled
N and l 10/22 11/28/ suits, sport coats, dress
Design /87 89 shirts, dress slacks,
casual slacks, woven
sport shirts, ties,
sweaters, knit shirts,
coats and neckwear, shoes
and hosiery
WHISPERS Fed 75/18 Int'l (3) Bubble bath, Close
SPA era 0,409 3 non-medicated bath d
COLLECTIO l 10/11 Int'l crystals, bath scrubs,
N /96 20 hand and body lotions,
Int'l perfumes and soaps; (20)
21 Hand held mirrors;(21)
Int'l Hair brushes and hair
25 combs; (25) Clothing,
namely, ladies'
sleepwear, robes,
loungewear, underwear,
slippers and head bands
Young Set CO None 248/33 State Women's, girl's, Cance
10/01/ 39 children's, men's and lled
73 boy's ready to wear of
all kinds
Patents and copyrights, and licenses or applications therefore:
None
SCHEDULE 5.02(a)
ARTICLE 15 LIENS
(I) Mortgages/Deeds of Trust:
1. Deed of Trust, Assignment, Security Agreement and Financing
Statement dated June 16, 1997, granted by Specialty
Retailers, Inc. in favor of Kenneth Kraus as Trustee for the
benefit of Credit Suisse First Boston, recorded in the
Office of the County Clerk of Cherokee County, Texas
covering certain real property more particularly described
therein and commonly known as the Distribution Center
physically located at 506 Bealls Boulevard, Jacksonville,
Texas 75766.
2. Deed of Trust, Security Agreement, Assignment of Rents and
Financing Statement dated February 1, 1983, granted by
Bealls Properties, Inc. in favor of Angela M. DeMeo as
Mortgage Trustee for the benefit of Port Arthur (Park
Central) Industrial Development Corporation, recorded in the
Office of the County Clerk of Jefferson County, Texas
covering certain real property more particularly described
therein and known as Store #120 located at 3100 FM 365, #57,
Port Arthur, Jefferson County, Texas 77640.
3. Deed of Trust and Assignment of Rents dated February 1,
1983, granted by Central Mall Joint Venture in favor of
Angela M. DeMeo as Mortgage Trustee for the benefit of
Bealls Properties, Inc., recorded as Instrument Number in
the Office of the County Clerk of Jefferson County, Texas
covering certain real property more particularly described
therein and known as Store #120 located at 3100 FM 365, #57,
Port Arthur, Jefferson County, Texas 77640 subsequently
assigned from Bealls Properties, Inc. to Chemical Bank.
UCC Financing Statements:
SECTION 15.02 Secured PartyStat Instrument Filing(a) Description of Collateral
Debtor e Date
Specialty CIT Group Equipment AL B 98- 07/22/ Satellite equipment wherever
Retailers, Financing, Inc. 31048FS 98 located
Inc.
Specialty Credit Suisse First Boston AL B00- 03/13/ Unspecified and proceeds.
Retailers, as Collateral Agent 103640FS 00
Inc. B00-10365FS
Specialty OroAmerica, Inc. AR 1203078 08/17/ Consignor's 10 karat and 14
Retailers, 99 karat gold jewelry
Inc.
Specialty General Electric Capital AR 1203237 08/19/ Retail store security equi
Retailers, Corp. 99
Inc.
Specialty CIT Group Equipment AR 1143013 07/21/ Satellite equipment wherever
Retailers, Financing, Inc. 98 located
Inc.
Specialty CIT Group Equipment AR 1145863 08/10/ Satellite equipment wherever
Retailers, Financing, Inc. 98 located
Inc.
Specialty Sensormatic Electronics AR. 1143019 07/21/ All equipment owned leased
Retailers, Corp. 98 by Specialty Retailers, Inc.,
Inc. provided by Sensormatic
Electronics Corp., in the
stores on the list attached to
the financing statement
Specialty Credit Suisse First Boston AR 1232896 03/10/ Inventory, proceeds and
Retailers, as Collateral Agent 1232897 00 products.
Inc. 03/10/ Equipment, contract rights,
00 general intangibles and
proceeds.
Specialty CIT Group Equipment AZ 01025716 07/21/ Satellite equipment wherever
Retailers, Financing, Inc. 98 located
Inc.
Specialty Credit Suisse First Boston AZ 1197732 03/10/
Retailers, 1107733 00
Inc.
Specialty OroAmerica, Inc. CO 19992044408 08/05/ Consigned 10 karat and 14 karat
Retailers, 99 gold jewelry
Inc., Beall's, modifi
Palais Royal, ed
Stage Stores, 08/19/
Inc. 99
Specialty OroAmerica, Inc. CO 19992054496 09/30/
Retailers, 99
Inc.
Specialty CIT Group Equipment CO 19982051389 08/10/ Satellite equipment wherever
Retailers, Financing, Inc. 98 located
Inc.
Palais Royal, SRI Receivables Purchase 932056618 07/29/ Certain accounts rec
Inc. Co., Inc. 93 rights related thereto in
connection with Receivables
Purchase Agreement dated
July 30, 1993
Palais Royal, SRI Receivables Purchase CO 19972127037 12/30/ Continua
Inc. Co., Inc.. 97
Specialty CIT Group Equipment CO 19982047083 07/21/ Satellite equip wherever
Retailers, Financing, Inc. 98 located
Inc.
Specialty Credit Suisse First Boston CO 20002021734 03/10/ Inventory, proceed
Retailers, 20002021735 00 products.
Inc. 03/10/ Contract rights, equipment,
00 purchase money security
interests and proceeds.
Specialty Credit Suisse First Boston GA 06000004664 03/13/ Inventory, proceeds
Retailers, as Collateral Agent 06000004465 00 products.
Inc. 03/13/ Inventory, proceeds and
00 products.
Specialty CIT Group Equipment IA K941437 08/10/ Satellite equip wherever
Retailers, Financing, Inc. 98 located
Inc.
Specialty CIT Group Equipment IA K937652 07/21/ Satellite equipment wherever
Retailers, Financing Inc. 98 located
Inc.
Specialty Credit Suisse First Boston IA P088340 03/10/ Inventory, proceeds and
Retailers, as Collateral Agent P088341 00 products.
Inc. 03/10/ Equipment, contract rights,
00 general intangibles, accounts,
fixtures, inventory, assets,
machinery, computer equipment,
business machinery/equipment,
negotiable instruments,
proceeds and products.
Specialty CIT Group Equipment IL 003882163 07/21/ Satellite equip wherever
Retailers, Financing, Inc. 98 located
Inc.
Specialty Credit Suisse First Boston IL 004179041 03/10/ Equipment.
Retailers, as Collateral Agent 004179042 00 Inventory.
Inc. 03/10/
00
Specialty CIT Group Equipment IN 2202193 07/21/ Satellite equip wherever
Retailers, Financing, Inc. 98 located
Inc.
Specialty CIT Group Equipment KS 2475026 07/21/ Satellite equip wherever
Retailers, Financing Inc. 98 located
Inc.
Specialty CIT Group Equipment KS 2480606 08/10/ Satellite equip wherever
Retailers, Financing Inc. 98 located
Inc.
Specialty Credit Suisse First Boston KS 3389541 03/10/ Inventory, proceeds and
Retailers, as Collateral Agent 3393022 00 products.
Inc. 03/13/ Equipment, contract rights,
00 general intangibles, accounts,
fixtures, inventory, assets,
machinery, business
machinery/equipment, computer
equipment, proceeds and
products.
Specialty OroAmerica, Inc. LA 09-979249 08/12/ Consignor's 10 Karat and 14
Retailers, 99 Karat gold jewelry
Inc.
Specialty General Electric Capital LA 17-1176867 08/19/ Retail store security eq
Retailers, Corporation 99
Inc.
Specialty CSFB LA 36-146278 03/10/ Unspecified and proceeds.
Retailers, as Collateral Agent 36-146279 00 Unspecified and proceeds.
Inc. 03/10/
00
Specialty CIT Group Equipment LA 49-253463 03/08/ Unspecified.
Retailers, Financing, Inc. 00
Inc.
Specialty Credit Suisse First Boston MD 00001810392 03/16/
Retailers, as Collateral Agent 93 00
Inc. 00001810392 03/16/
97 00
Specialty CIT Group Equipment MI 95986B 07/21/ Satellite equipment wherever
Retailers, Financing, Inc. 98 located
Inc.
Specialty CIT Group Equipment MI 96560B 08/10/ Satellite equipment wherever
Retailers, Financing, Inc. 98 located
Inc.
Specialty OroAmerica MI D551029 08/05/ Consignor's 10 karat and 14
Retailers, 99 karat gold jewelry
Inc., Beall's
Palais Royal,
Stage Stores,
Inc.
Specialty CIT Group Equip MN 2063590 08/25/Satellite equip wherever
Retailers, Financing, Inc. 98 located
Inc.
Specialty CIT Group Equip MN 2060342 08/12/Satellite equip wherever
Retailers, Financing Inc. 98 located
Inc.
Specialty CIT Group Equip MS 1242311 08/10/ Satellite equip wherever
Retailers, Financing, Inc. 98 located
Inc.
Specialty CIT Group Equip MO 2938410 07/21/ Satellite equip wherever
Retailers, Financing, Inc. 98 located
Inc.
Specialty CIT Group Equip MO 2944886 08/10/ Satellite equip wherever
Retailers, Financing Inc. 98 located
Inc.
Specialty Credit Suisse First Boston MO 4021038 03/10/
Retailers, 4021039 00
Inc. 03/10/
00
Specialty CIT Group Equip MT 542872 08/18/ Satellite equip wherever
Retailers, Financing Inc. 98 located
Inc.
Specialty CIT Group Equip NE 776972 07/21/ Satellite equip wherever
Retailers, Financing Inc. 98 located
Inc.
Specialty CIT Group Equip NE 778782 08/10/ Satellite equip wherever
Retailers, Financing Inc. 98 located
Inc.
Specialty CSFB NE 9900033435 03/10/ Inventory, proceeds and
Retailers, as Collateral Agent 9900033439 00 products.
Inc. Equipment, contract rights,
accounts, fixtures, inventory,
machinery, business
machinery/equipment, computer
equipment, proceeds and
products.
Specialty CIT Group Equip ND 98000796189 08/10/ Equipment and proceeds.
Retailers, Financing, Inc. 98
Inc.
Specialty CIT Group Equip NM 980721024 07/21/ Satellite equip wherever
Retailers, Financing Inc. 98 located
Inc.
Specialty CIT Group Equip NM 980810051 08/10/ Satellite equip wherever
Retailers, Financing Inc. 98 located
Inc.
Specialty Credit Suisse First Boston NV 0003885 and 03/10/
Retailers, as Collateral Agent. 0003886 00
Inc.
Specialty CIT Group Equip NY 156670 07/21/ Satellite equip wherever
Retailers, Financing Inc 98 located
Inc.
Specialty CSFB NY 00048588 03/10/ Inventory, proceeds and
Retailers, as Collateral Agent 00048591 00 products.
Inc. 03/10/ Equipment, contract rights,
00 computer equipment, fixtures,
inventory, accounts, business
machinery/equipment, general
intangibles and negotiable
instruments.
Specialty OroAmerica OH AP0167799 08/09/ Consignor's merchandise
Retailers, 99
Inc., Bealls,
Palais Royal,
Stage Stores,
Inc.
Specialty Credit Suisse First Boston OH AP0220020 03/10/ Inventory.
Retailers, as Collateral Agent AP0221424 00 Blanket lien.
Inc. 03/16/
00
Specialty CIT Group Equip OK N05696 07/21/ Equip, computer equipment,
Retailers, Financing, Inc. 98 inventory, proceeds and
Inc. products.
Specialty CIT Group Equipment OK N06162 08/10/
Retailers, Financing, Inc. 98
Inc.
Specialty CSFB OR 0000504052 03/10/ Inventory, returned or
Retailers, as Collateral Agent 0000504348 00 repossessed goods, proceeds,
Inc. 03/13/ products.
00 Equipment, contract rights,
machinery, accounts, inventory,
fixtures, negotiable
instruments, general
intangibles, assets, returned
or repossessed goods, proceeds
and products.
Specialty Credit Suisse First Boston PA 31371297 03/10/
Retailers, as Collateral Agent 31371300 00
Inc.
Specialty CSFB SC 0 03/10/ Inventory, proceeds and
Retailers, as Collateral Agent 00310- 00 products.
Inc. 141540A Unspecified and proceeds.
000310-
141945A
Specialty CIT Group Equip SD 99822213036 08/10/ Satellite equip wherever
Retailers, Financing Inc. 91 98 located
Inc.
Specialty CIT Group Equip SD 99820209044 07/21/ Satellite equip wherever
Retailers, Financing Inc. 54 98 located
Inc.
Specialty CSFB SD 97188110292 07/07/ Equipment, contracts rights,
Retailers, as Collateral Agent 1 97 general intangibles, accounts,
Inc. (NV) machinery, business
machinery/equipment, fixtures,
assets, and negotiable
19972950902 10/22/ instruments
696 97
amendment
to
19718811029
21
Specialty CSFB SD 00701102668 03/10/ Inventory, proceeds and
Retailers, 00070110266 00 products.
Inc. 9 03/10/ Equipment, contract
00 rights, general intangibles,
accounts, fixtures, inventory,
assets, machinery, business
00070110267 machinery/equipment, computer
0 03/10/ equipment, negotiable
00070110267 00 instruments, proceeds and
1 03/10/ products.
00 Inventory
Equipment, contract rights,
general intangibles, accounts,
00074090333 fixtures, inventory, assets,
3 03/14/ machinery, business
00 machinery/equipment, computer
equipment, negotiable
instruments, proceeds and
products.
Specialty GE Capital TX 0000401325 01/04/ Radio frequency processing
Retailers, Corporation 00 system
Inc.
Palais Royal, SRPC TX 9300146138, 07/29/ Receivables related to
Inc. with Co., Inc. amended by 93 Receivables Purchase Agreement
name change to 9500614142, 02/11/ dated July 30, 1993
Specialty amended by 95
Retailers, 9700667211 05/30/
Inc. 97
Specialty SRI Receivables Purchase 9700104292 05/30/
Retailers, Co., Inc. filed in 97
Inc. connection
with change
of name not
as an
amendment 04/06/
but as a 98
new filing,
as
continued
by
9800645068
Specialty Bell & Howell Phillipsburg TX 045944 03/08/ Bell&Howell Phillipsburg
Retailers, Company 95 Eight Station AIM III Mailstar
Inc. Inserter
Specialty Allstate Business Systems TX 9500220903 11/14/ Ricoh color copier,
Retailers, 95 editor, document feeder and
Inc. sorter
Specialty GE Capital TX 9700034026 02/20/ 1 jetplane: Hawker Siddeley
Retailers, Corporation 97 with two Garrett Model TFE
Inc. 731-3R engines
Specialty GE Capital TX 9700034978 02/21/ 1 Beechcraft aircraft
Retailers, Corporation 97
Inc.
Specialty First National Bank of TX 9700107470, 06/020 All general intangibles
Retailers, Boston as Agent partial 97 including patents, trademarks,
Inc. release by licenses, copyrights, etc.
9900707631, 06/23/ 2 Bell & Howell MS500/AIM Mail
total 99 Processors
release by
9900712797 07/06/ All general intangibles
99
Specialty First National Bank of TX 9700107471 06/02/ 27.5544 acres
Retailers, Boston as Agent related to 97 Boulevard Property, buildings,
Inc. 017432 structures and improvements
where thereon and thereto and
debtor was insurance proceeds, rents, etc.
named
Palais
Royal, Inc.
Specialty CSFB TX 9700119170 06/20/ All equipment, contracts,
Retailers, as Collateral Agent 97 marks, patents and copyrights,
Inc. computer programs, including
trade secrets, all other
9900707639 general intangibles, LC cash
partial 06/23/ collateral account, interest,
release 99 dividends, cash and instruments
relating to from time to time received
9700119170
0000779958 03/14/
00 Partial release of 2 Bell &
Howell MS500 AIM Mail
Processors
Amendment
Specialty CSFB TX 9700120988 06/24/ Premises known as Beall
Retailers, as Agent 97 Boulevard Property (27.5544
Inc. acres), improvements,
equipment, rents, etc.
Specialty Oce Printing Systems TX 9800004582 01/07/ Led Printing System
Retailers, Inc. 98
Inc.
Specialty CIT Group Equip TX 9800146312 07/21/ Satellite equipment wherever
Retailers, Financing, Inc. 98 located.
Inc.
Specialty Sensormatic Electronics TX 9800149267 07/23/ All equip owned or leased
Retailers, Corp. 98 to Specialty Retailers, Inc.,
Inc. d/b/a provided by Sensormatic
Palais Royal Electronics Corp., in the
Palais Royal stores on the list attached to
the financing statement
Specialty Sensormatic Elec TX 9800149268 07/23/ All equip owned or leased
Retailers, Corp. 98 to Specialty Retailers, Inc.,
Inc. d/b/a provided by Sensormatic
Beall's Electronics Corp., in the
Beall's stores on the list attached to
the financing statement
Specialty CIT Group Equip TX 9800161002 08/10/ Satellite equip wherever
Retailers, Financing, Inc. 98 located
Inc.
Specialty GE Capital TX 9800206819 10/15/ True lease on 313 Hughes PES
Retailers, Corp. 98 5000 personal earth station
Inc.
Specialty City National Leasing TX 9800211537 10/22/ Sullaire Air Compressor
Retailers, 98
Inc.
Specialty GE Capital TX 9800225191 11/13/ True lease on SunMicrosystems
Retailers, Corp. 98 computer equipment
Inc.
Specialty Steelcase Financial 9800246265 12/10/ All furniture and equip
Retailers, Services, Inc. 98 leased or financed from
Inc. Steelcase Financial
Specialty GE Capital TX 9800253259 12/28/ True lease on 29 Hughes model
Inc. stations and 1 Illuminet
console
Specialty GE Capital 9900112905 06/07/ True lease on 2 Bell & Howell
Retailers, Corp. 99 Mail Processers
Inc.
Specialty IBM Credit Corp. 9900130630 06/28/ True lease on IBM computer
Retailers, 99 equipment
Inc.
Specialty OroAmerica, Inc. 9900160416 08/06/ Lumber to be cut, minerals or
Retailers, 99 minerals related accounts,
Inc. crops growing or to be grown on
the real estate described in
Attachment A to filing
Specialty GE Capital 9900161821 08/11/ 2 rapid extraction desks and 1
Retailers, Corp. 99 automatic mail extraction unit
Inc.
Specialty GE Capital 9900168506 08/20/ Retail store security equipment
Retailers, Corp. 99
Inc.
Specialty GE Capital TX 9900233304 11/22/ Computer equipment
Retailers, Corp. 99
Inc.
Specialty El Camino Resources 9900254041 12/27/ Equip leased under Master
Retailers, 99 Lease 4343
Inc.
Specialty Storagetek Financial TX 9700227257 11/30/
Retailers, Services Corporation 97
Inc. (Lessee) (Lessor)
Specialty Credit Suisse First Boston TX 0000448715 03/10/
Retailers, as Collateral Agent 00
Inc.
Specialty Credit Suisse First Boston TX 0000448716 03/10/
Retailers, as Collateral Agent 00
Inc. (NV)
Specialty Credit Suisse First Boston TX 0000448718 03/10/
Retailers, as Collateral Agent 00
Inc.
Specialty Credit Suisse First Boston TX 0000448719 03/10/
Retailers, as Collateral Agent 00
Inc. (NV)
Specialty Oce Printing Systems USA, TX 0000473791 04/12/
Retailers, Inc. 00
Inc.
Specialty Xerox Corporation TX 9700003802 01/08/
Retailers, 97
Inc.
Stage Stores, Federal Sign Division of TX 9900167600 08/16/
Inc. Federal Signal Corp. 99
Stage Stores, Credit Suisse First Boston TX 0000448714 03/10/
Inc. as Collateral Agent 0000448717 00
03/10/
00
Stage Stores,CSFB 9700119169 Collateral Agent 9900707638 97 Partial release.
99
03/14/
00
Stage Stores, Storage Techny Corporation Harr 792629 08/10/ Equipment.
Inc. is 883063 89 Continuation.
Co., 07/14/
TX 94
Stage Stores, El Camino Resources, Ltd. Harr 952698 12/27/ Equipment
Inc. is 99
Co.,
TX
Specialty CSFB VA 000310-7812 03/10/ Inventory, proceeds and
Retailers, as Collateral Agent 000310-7813 00 products.
Inc. 03/10/ Equipment, contract rights,
00 general intangibles, accounts,
fixtures, inventory, assets,
machinery, computer equipment,
business machinery/equipment,
negotiable instruments,
proceeds and products.
Specialty CSFB WA 20000700129 03/10/ Inventory, proceeds and
Retailers, as Collateral Agent 20000700130 00 products.
Inc. 03/10/ Equipment, contract rights,
00 general intangibles, accounts,
fixtures, inventory, assets,
machinery, business
machinery/equipment, computer
equipment, negotiable
instrument, proceeds and
products.
Specialty Credit Suisse First Boston WI 1935153 03/10/
Retailers, as Collateral Agent 1935156 00
Inc. 03/10/
00
Specialty CSFB WV 0535560 and 03/10/ Unspecified and proceeds.
Retailers, as Collateral Agent 0535561 00
Inc.
Specialty CIT Group Equip 0067161A02 03/07/ Computer equipment and
Retailers, Financing, Inc. 00 proceeds.
Inc.
Specialty CSFB 00070151A01 03/10/ Inventory, proceeds and
Retailers, 00 products.
Inc.
Specialty CSFB 00070151A02 03/10/ Equipment, negotiable
Retailers, 00 instruments, contract rights,
Inc. inventory, accounts, assets,
machinery, business
machinery/equipment, computer
equipment, fixtures, general
intangibles.
In addition to the liens listed above, there may be certain
county filings for which search results have not been received.
EXHIBIT A-1
FORM OF
WORKING CAPITAL NOTE
$_______________ Dated: _________ __, ____
FOR VALUE RECEIVED, the undersigned, SPECIALTY
RETAILERS, INC., a Texas corporation and a debtor and debtor-in-
possession under chapter 11 of the Bankruptcy Code (the
"Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its
Applicable Lending Office (as defined in the Credit Agreement
referred to below) the aggregate principal amount of the Working
Capital Advances, Letter of Credit Advances and Swing Line
Advances (each as defined below) owing to the Lender by the
Borrower pursuant to the Credit Agreement dated as of June 2,
2000 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"; terms defined
therein, unless otherwise defined herein, being used herein as
therein defined) among the Borrower, Stage Stores, Inc., a
Delaware corporation and a debtor and debtor-in-possession under
chapter 11 of the Bankruptcy Code, as Parent Guarantor, the
Lender, certain other Lender Parties party thereto and Citicorp
USA, Inc., as Administrative Agent and as Collateral Agent for
the Lender and such other Lender Parties on the Termination Date.
The Borrower promises to pay interest on the unpaid
principal amount of each Working Capital Advance, Letter of
Credit Advance and Swing Line Advance from the date of such
Working Capital Advance, Letter of Credit Advance and Swing line
Advance, as the case may be, until such principal amount is paid
in full, at such interest rates, and payable at such times, as
are specified in the Credit Agreement.
Both principal and interest are payable in lawful money
of the United States of America to CITICORP USA, INC., as
Administrative Agent, at 399 Park Avenue, New York, New York
10043 in same day funds. Each Working Capital Advance, Letter of
Credit Advance and Swing Line Advance owing to the Lender by the
Borrower and the maturity thereof, and all payments made on
account of principal thereof, shall be recorded by the Lender
and, prior to any transfer hereof, endorsed on the grid attached
hereto, which is part of this Promissory Note; provided, however,
that the failure of the Lender to make any such recordation or
endorsement shall not affect the Obligations of the Borrower
under this Promissory Note.
This Promissory Note is one of the Working Capital
Notes referred to in, and is entitled to the benefits of, the
Credit Agreement. The Credit Agreement, among other things, (i)
provides for the making of advances (variously, the "Working
Capital Advances", the "Letter of Credit Advances" or the "Swing
Line Advances") by the Lender to or for the benefit of the
Borrower from time to time in an aggregate amount not to exceed
at any time outstanding the U.S. dollar amount first above
mentioned, the indebtedness of the Borrower resulting from each
such Working Capital Advance, Letter of Credit Advance and Swing
Line Advance being evidenced by this Promissory Note, and
(ii) contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified. The
obligations of the Borrower under this Promissory Note and the
other Loan Documents, and the obligations of the other Loan
Parties under the Loan Documents, are secured by the Collateral
as provided in the Loan Documents.
This Promissory Note shall be governed by, and
construed in accordance with, the laws of the State of New York
and, to the extent applicable, the Bankruptcy Code.
SPECIALTY RETAILERS, INC.
By
Title:
1ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of Unpaid
Amount of Principal Principal Notation
Date Advance Paid Balance Made By
or Prepaid
EXHIBIT A-2
FORM OF
TERM NOTE
U.S. $_____________ Dated: _________ __, ____
FOR VALUE RECEIVED, the undersigned, SPECIALTY
RETAILERS, INC., a Texas corporation and a debtor and debtor-in-
possession under chapter 11 of the Bankruptcy Code (the
"Borrower"), HEREBY PROMISES TO PAY to the order of [NAME OF
LENDER] or its registered assigns (the "Lender") for the account
of its Applicable Lending Office (as defined in the Credit
Agreement referred to below) the principal amount of the Term
Advance (as defined below) owing to the Lender by the Borrower
pursuant to the Credit Agreement dated as of June 2, 2000 (as
amended, amended and restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"; terms defined therein,
unless otherwise defined herein, being used herein as therein
defined) among the Borrower, Stage Stores, Inc., a Delaware
corporation and a debtor and debtor-in-possession under chapter
11 of the Bankruptcy Code, as Parent Guarantor, the Lender,
certain other Lender Parties party thereto and Citicorp USA,
Inc., as Administrative Agent and as Collateral Agent for the
Lender and such other Lender Parties on the Termination Date.
The Borrower promises to pay interest on the unpaid
principal amount of the Term Advance from the date of such Term
Advance until such principal amount is paid in full, at such
interest rates, and payable at such times, as are specified in
the Credit Agreement.
Both principal and interest are payable in lawful money
of the United States of America to Citicorp USA, Inc., as
Administrative Agent, at 399 Park Avenue, New York, New York
10043 in same day funds. The Term Advance owing to the Lender by
the Borrower and the maturity thereof, and all payments made on
account of principal thereof, shall be recorded by the Lender
and, prior to any transfer hereof, endorsed on the grid attached
hereto, which is part of this Promissory Note; provided, however,
that the failure of the Lender to make any such recordation or
endorsement shall not affect the Obligations of the Borrower
under this Promissory Note.
This Promissory Note is one of the Term Notes referred
to in, and is entitled to the benefits of, the Credit Agreement.
The Credit Agreement, among other things, (i) provides for the
making of a single advance (the "Term Advance") by the Lender to
the Borrower in an amount not to exceed the U.S. dollar amount
first above mentioned, the indebtedness of the Borrower resulting
from such Term Advance being evidenced by this Promissory Note,
and (ii) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified. The
obligations of the Borrower under this Promissory Note and the
other Loan Documents, and the obligations of the other Loan
Parties under the Loan Documents, are secured by the Collateral
as provided in the Loan Documents.
This Promissory Note shall be governed by, and
construed in accordance with, the laws of the State of New York
and, to the extent applicable, the Bankruptcy Code.
SPECIALTY RETAILERS, INC.
By
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of Unpaid
Date Amount of Principal Principal Notation
Advance Paid Balance Made By
or Prepaid
EXHIBIT B
FORM OF
NOTICE OF BORROWING
CITICORP USA, INC.
as Administrative Agent
under the Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043 [Date]
Attention: _______________
Ladies and Gentlemen:
The undersigned, Specialty Retailers, Inc., refers to
the Credit Agreement dated as of June 2, 2000 (as amended,
amended and restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"; the terms defined therein
being used herein as therein defined), among the undersigned, as
Borrower, Stage Stores, Inc., as Parent Guarantor, each a debtor
and debtor-in-possession under chapter 11 of the Bankruptcy Code,
the Lender Parties party thereto, Citicorp USA, Inc., as
Administrative Agent and as Collateral Agent for the Lender
Parties, and hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement that the undersigned hereby
requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such
Borrowing (the "Proposed Borrowing") as required by
Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
_________ __, ____.
(ii) The Facility under which the Proposed Borrowing is
requested is the _______________ Facility.
(iii) The Type of Advances comprising the Proposed
Borrowing is [Base Rate Advances] [Eurodollar Rate
Advances].
(iv) The aggregate amount of the Proposed Borrowing is
$__________.
[(v) The initial Interest Period for each Eurodollar
Rate Advance made as part of the Proposed Borrowing is
__________ month[s].]
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the
date of the Proposed Borrowing:
(A) The representations and warranties contained in
each Loan Document are correct on and as of the date of the
Proposed Borrowing, before and after giving effect to the
Proposed Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, other than
any such representations or warranties that, by their terms,
refer to a specific date other than the date of the Proposed
Borrowing, in which case, as of such specific date.
(B) No event has occurred and is continuing, or would
result from such Proposed Borrowing or from the application
of the proceeds therefrom, that constitutes a Default; and.
(C) The sum of the Loan Values of the Eligible
Collateral minus $[_______] exceeds the aggregate principal
amount of the Working Capital Advances plus Swing Line
Advances plus Letter of Credit Advances to be outstanding
plus the Available Amount of all Letters of Credit then
outstanding after giving effect to the Proposed Borrowing.
Manual delivery of an executed counterpart of this
Notice of Borrowing by telecopier shall be effective as delivery
of an original executed counterpart of this Notice of Borrowing.
Very truly yours,
SPECIALTY RETAILERS, INC.
By
Title:
EXHIBIT C
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of
June 2, 2000 (as amended, amended and restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"; the
terms defined therein, unless otherwise defined herein, being
used herein as therein defined) among Specialty Retailers, Inc.,
(the "Borrower"), Stage Stores, Inc., as Parent Guarantor, each a
debtor and debtor-in-possession under chapter 11 of the
Bankruptcy Code, the Lender Parties party thereto and Citicorp
USA, Inc., as Administrative Agent and as Collateral Agent for
the Lender Parties.
Each "Assignor" referred to on Schedule 1 hereto (each,
an "Assignor") and each "Assignee" referred to on Schedule 1
hereto (each, an "Assignee") agrees severally with respect to all
information relating to it and its assignment hereunder and on
Schedule 1 hereto as follows:
1. Such Assignor hereby sells and assigns, without
recourse except as to the representations and warranties made by
it herein, to such Assignee, and such Assignee hereby purchases
and assumes from such Assignor, an interest in and to such
Assignor's rights and obligations under the Credit Agreement as
of the date hereof equal to the percentage interest specified on
Schedule 1 hereto of all outstanding rights and obligations under
the Credit Agreement. After giving effect to such sale and
assignment, such Assignee's Commitments and the amount of the
Advances owing to such Assignee will be as set forth on
Schedule 1 hereto.
2. Such Assignor (i) represents and warrants that its
name set forth on Schedule 1 hereto is its legal name, that it is
the legal and beneficial owner of the interest or interests being
assigned by it hereunder and that such interest or interests are
free and clear of any adverse claim; (ii) makes no representation
or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in
connection with any Loan Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of,
or the perfection or priority of any lien or security interest
created or purported to be created under or in connection with,
any Loan Document or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition
of any Loan Party or the performance or observance by any Loan
Party of any of its obligations under any Loan Document or any
other instrument or document furnished pursuant thereto; and
(iv) attaches the Note or Notes held by such Assignor and
requests that the Administrative Agent exchange such Note or
Notes for a new Note or Notes payable to the order of such
Assignee in an amount equal to the Commitments assumed by such
Assignee pursuant hereto or new Notes payable to the order of
such Assignee in an amount equal to the Commitments assumed by
such Assignee pursuant hereto and such Assignor in an amount
equal to the Commitments retained by such Assignor under the
Credit Agreement, respectively, as specified on Schedule 1
hereto.
3. Such Assignee (i) confirms that it has received a
copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 4.01 thereof and such
other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon any Agent, any Assignor
or any other Lender Party and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action
under the Credit Agreement; (iii) represents and warrants that
its name set forth on Schedule 1 hereto is its legal name;
(iv) confirms that it is an Eligible Assignee; (v) appoints and
authorizes each Agent to take such action as agent on its behalf
and to exercise such powers and discretion under the Loan
Documents as are delegated to such Agent by the terms thereof,
together with such powers and discretion as are reasonably
incidental thereto; (vi) agrees that it will perform in
accordance with their terms all of the obligations that by the
terms of the Credit Agreement are required to be performed by it
as a Lender Party; and (vii) attaches any U.S. Internal Revenue
Service forms required under Section 2.12 of the Credit
Agreement.
4. Following the execution of this Assignment and
Acceptance, it will be delivered to the Administrative Agent for
acceptance and recording by the Administrative Agent. The
effective date for this Assignment and Acceptance (the "Effective
Date") shall be the date of acceptance hereof by the
Administrative Agent, unless otherwise specified on Schedule 1
hereto.
5. Upon such acceptance and recording by the
Administrative Agent, as of the Effective Date, (i) such Assignee
shall be a party to the Credit Agreement and, to the extent
provided in this Assignment and Acceptance, have the rights and
obligations of a Lender Party thereunder and (ii) such Assignor
shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under
the Credit Agreement (other than its rights and obligations under
the Loan Documents that are specified under the terms of such
Loan Documents to survive the payment in full of the Obligations
of the Loan Parties under the Loan Documents to the extent any
claim thereunder relates to an event arising prior to the
Effective Date of this Assignment and Acceptance) and, if this
Assignment and Acceptance covers all of the remaining portion of
the rights and obligations of such Assignor under the Credit
Agreement, such Assignor shall cease to be a party thereto.
6. Upon such acceptance and recording by the
Administrative Agent, from and after the Effective Date, the
Administrative Agent shall make all payments under the Credit
Agreement and the Notes in respect of the interest assigned
hereby (including, without limitation, all payments of principal,
interest and commitment fees with respect thereto) to such
Assignee. Such Assignor and such Assignee shall make all
appropriate adjustments in payments under the Credit Agreement
and the Notes for periods prior to the Effective Date directly
between themselves.
7. This Assignment and Acceptance shall be governed
by, and construed in accordance with, the laws of the State of
New York and, to the extent applicable, the Bankruptcy Code.
8. This Assignment and Acceptance may be executed in
any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of an original executed
counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, each Assignor and each Assignee
have caused Schedule 1 to this Assignment and Acceptance to be
executed by their officers thereunto duly authorized as of the
date specified thereon.
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
ASSIGNORS:
Working Capital Note
Percentage interest assigned % % % % %
Working Capital Commitment $ $ $ $ $
assigned
Aggregate outstanding principal
amount of $ $ $ $ $
Working Capital Advances
assigned
Principal amount of Working
Capital Note $ $ $ $ $
Payable to Assignor
Term Note
Percentage interest assigned % % % % %
Term Commitment assigned $ $ $ $ $
Aggregate outstanding principal
amount of $ $ $ $ $
Term Advances assigned
Principal amount of Term Note
Payable to Assignor $ $ $ $ $
Letter of Credit Facility
Letter of Credit Commitment % % % % %
assigned
Letter of Credit Commitment $ $ $ $ $
retained
ASSIGNEES:
Working Capital Note
Percentage interest assumed % % % % %
Working Capital Commitment $ $ $ $ $
assumed
Aggregate outstanding principal
amount of $ $ $ $ $
Working Capital Advances
assumed
Principal amount of Working
Capital Note $ $ $ $ $
Payable to Assignee
Term Note
Percentage interest assumed % % % % %
Term Commitment assumed $ $ $ $ $
Aggregate outstanding principal
amount of $ $ $ $ $
Term Advances assumed
Principal amount of Term Note
Payable to Assignee $ $ $ $ $
Letter of Credit Facility
Letter of Credit Commitment $ $ $ $ $
assumed
Effective Date (if other than date of acceptance by
Administrative Agent):
_________ __, ____
Assignors
, as
Assignor
[Type or Print Legal Name of
Assignor]
By
Title:
Dated: _________ __, ____
, as
Assignor
[Type or Print Legal Name of
Assignor]
By
Title:
Dated: _________ __, ____
, as
Assignor
[Type or Print Legal Name of
Assignor]
By
Title:
Dated: _________ __, ____
, as
Assignor
[Type or Print Legal Name of
Assignor]
By
Title:
Dated: _________ __, ____
Assignees
, as
Assignee
[Type or Print Legal Name of
Assignor]
By
Title:
Dated: _________ __, ____
Domestic Lending Office:
Eurodollar Lending Office:
, as
Assignee
[Type or Print Legal Name of
Assignor]
By
Title:
Dated: _________ __, ____
Domestic Lending Office:
Eurodollar Lending Office:
, as
Assignee
[Type or Print Legal Name of
Assignor]
By
Title:
Dated: _________ __, ____
Domestic Lending Office:
Eurodollar Lending Office:
, as
Assignee
[Type or Print Legal Name of
Assignor]
By
Title:
Dated: _________ __, ____
Domestic Lending Office:
Eurodollar Lending Office:
Accepted 1[and Approved] this ____
day of ___________, ____
CITICORP USA, INC.,
as Administrative Agent
By
Title:
2[Approved this ____ day
of _____________, ____
STAGE STORES, INC.
By
Title: ]
EXHIBIT D TO THE
CREDIT AGREEMENT
CONFORMED COPY,
AS SEPARATELY EXECUTED
SECURITY AGREEMENT
Dated as of June 2, 2000
From
The Grantors referred to herein
as Grantors
to
CITICORP USA, INC.
as Collateral Agent
Table of Contents
Page
Section 1. Grant of Security 2
Section 2. Security for Obligations 6
Section 3. Grantors Remain Liable 6
Section 4.Perfection and Priority of Security Interests, Mortgages and Liens
Section 5. Delivery and Control of Security Collateral 7
Section 6.Maintaining the Pledged Accounts and the Additional Pledged Accounts
Section 7.Maintaining the Operating Account, the Disbursement Account, the Cash
Concentration Account, the Collateral Account and the L/C Collateral Account
Section 8.Investing of Amounts in the Cash Concentration Account, the Collateral
Account and the L/C Collateral Account 10
Section 9. Release of Amounts 10
Section 10. Representations and Warranties 11
Section 11. Further Assurances 14
Section 12. As to Equipment and Inventory 15
Section 13. Insurance 15
Section 14.Place of Perfection; Records; Collection of Receivables 16
Section 15. As to Intellectual Property Collateral. 17
Section 16. Voting Rights; Dividends; Etc 18
Section 17. As to the Assigned Agreements 19
Section 18. Payments Under the Assigned Agreements 20
Section 19. Transfers and Other Liens; Additional Shares 20
Section 20. Collateral Agent Appointed Attorney-in-Fact 21
Section 21. Collateral Agent May Perform 21
Section 22. The Collateral Agent's Duties 21
Section 23. Remedies 22
Section 24. Indemnity and Expenses 24
Section 25. Amendments; Waivers; Additional Grantors; Etc 25
Section 26. Notices; Etc 25
Section 27.ContinuingSecurity Interest;Assignments under the Credit Agreement 25
Section 28. Release; Termination 26
Section 29. Execution in Counterparts 26
Section 30. The Mortgages 26
Section 31. Credit Agreement Controls 26
Section 32. Governing Law 27
Schedules
Schedule I - Pledged Shares and Pledged Debt
Schedule II - Assigned Agreements
Schedule III - Locations of Equipment and Inventory
Schedule IV - Chief Executive Office and Federal Tax
Identification Number
Schedule V - Patents, Trademarks and Trade Names,
Copyrights and Licenses
Schedule VI - Pledged Accounts and Cash Concentration
Account
Schedule VII - Permitted Unblocked Accounts
Exhibits
Exhibit A - Form of Security Agreement Supplement
Exhibit B - Form of Pledged Account Letter
Exhibit C - Form of Consent and Agreement
Exhibit D - Form of Control Agreement (Securities Account)
Exhibit E - Form of Control Agreement (Commodity Account)
Exhibit F - Form of Intellectual Property Security Agreement
Exhibit G - Form of Intellectual Property Security Agreement
Supplement
Exhibit H - Form of Cash Concentration Account Letter
SECURITY AGREEMENT
SECURITY AGREEMENT dated June 2, 2000 made by the
Persons listed on the signature pages hereof, each a debtor and
debtor-in-possession under Chapter 11 of the U.S. Bankruptcy Code
(11 U.S.C. '101 et seq; the "Bankruptcy Code") (other than the
Non-Filing Subsidiaries, as such term is defined in the Credit
Agreement referred to below) and the Additional Grantors (as
defined in Section 25) (the Persons so listed and the Additional
Grantors being, collectively, the "Grantors"), to CITICORP USA,
INC., as collateral agent (together with any successor collateral
agent appointed pursuant to Article VIII of the Credit Agreement
(as hereinafter defined), the "Collateral Agent") for the Secured
Parties (as defined in the Credit Agreement).
PRELIMINARY STATEMENTS.
(1) SPECIALTY RETAILERS, INC., a Texas corporation
(the "Borrower"), and STAGE STORES, INC., a Delaware corporation
(the "Parent Guarantor"), each a debtor and debtor in possession
under chapter 11 of the Bankruptcy Code, have entered into a
Credit Agreement dated as of the date hereof (said Agreement, as
it may hereafter be amended, amended and restated, supplemented
or otherwise modified from time to time, being the "Credit
Agreement") with the Lender Parties and the Agents (each as
defined therein).
(2) Pursuant to the Credit Agreement, the Grantors are
entering into this Agreement in order to grant to the Collateral
Agent for the ratable benefit of the Secured Parties a security
interest in the Collateral (as hereinafter defined) now owned or
hereafter acquired.
(3) Each Grantor is the owner of the shares (the
"Initial Pledged Shares") of stock set forth opposite such
Grantor's name on and as otherwise described in Part I of
Schedule I hereto and issued by the corporations named therein
and of the indebtedness (the "Initial Pledged Debt") set forth
opposite such Grantor's name on and as otherwise described in
Part II of Schedule I hereto and issued by the obligors named
therein.
(4) The Borrower has opened a collateral securities
account, Account No. 30430976 (the "Collateral Account"), with
Citibank, N.A. at its office at 399 Park Avenue, New York,
New York 10043, in the name of the Collateral Agent and under
the sole control and dominion of the Collateral Agent and subject
to the terms of this Agreement.
(5) The Borrower has opened a collateral securities
account, Account No. 30430984 (the "L/C Collateral Account"),
with Citibank, N.A. at its office at 399 Park Avenue, New York,
New York 10043, in the name of the Collateral Agent and under
the sole control and dominion of the Collateral Agent and subject
to the terms of this Agreement.
(6) The Borrower has opened a cash concentration
deposit account and securities account, Account No. 30430204 (the
"Cash Concentration Account"), with Citibank, N.A. at its office
at 399 Park Avenue, New York, New York 10043, in the name of the
Borrower but under the sole dominion and control of the
Collateral Agent and subject to the terms of this Agreement.
(7) The Borrower has opened an operating deposit
account, Account No. 30430212 (the "Operating Account"), with
Citibank, N.A. at its office at 399 Park Avenue, New York,
New York 10043, in the name of the Borrower and subject to the
terms of this Agreement.
(8) The Borrower has opened a disbursement account
(the "Disbursement Account"), with Chase Bank of Texas, N.A., in
the name of the Borrower and subject to the terms of this
Agreement.
(9) It is a condition precedent to the making of
Advances and the issuance of Letters of Credit by the Lender
Parties under the Credit Agreement from time to time that the
Grantors shall have granted the assignment and security interest
and made the pledge and assignment contemplated by this
Agreement.
(10) Each Grantor will derive substantial direct and
indirect benefit from the transactions contemplated by the Loan
Documents.
(11) Terms defined in the Credit Agreement and not
otherwise defined in this Agreement are used in this Agreement as
defined in the Credit Agreement. Further, unless otherwise
defined in this Agreement or in the Credit Agreement, terms
defined in Article 8 or 9 of the Uniform Commercial Code in
effect in the State of New York ("N.Y. Uniform Commercial Code")
and/or in the Federal Book Entry Regulations (as defined below)
are used in this Agreement as such terms are defined in such
Article 8 or 9 and/or the Federal Book Entry Regulations. The
term "Federal Book Entry Regulations" means (a) the federal
regulations contained in Subpart B ("Treasury/Reserve Automated
Debt Entry System (TRADES)") governing book-entry securities
consisting of U.S. Treasury bonds, notes and bills and Subpart D
("Additional Provisions") of 31 C.F.R. Part 357, 31 C.F.R.
357.2, 357.10 through 357.14 and 357.41 through 357.44
and (b) to the extent substantially identical to the federal
regulations referred to in clause (a) above (as in effect from
time to time), the federal regulations governing other book-entry
securities.
NOW, THEREFORE, in consideration of the premises and in
order to induce the Lender Parties to make Advances and issue
Letters of Credit under the Credit Agreement from time to time,
each Grantor hereby agrees with the Collateral Agent for the
ratable benefit of the Secured Parties as follows:
ARTICLE 16 GRANT OF SECURITY
. Each Grantor hereby assigns and pledges to the
Collateral Agent for the ratable benefit of the Secured Parties,
and hereby grants to the Collateral Agent for the ratable benefit
of the Secured Parties a security interest in, subject only to
any valid and enforceable liens and security interests
specifically contemplated by, and permitted under, the Credit
Agreement and the Interim Order or the Final Order, as
applicable, such Grantor's right, title and interest in and to
the following, in each case, as to each type of property
described below, whether now owned or hereafter acquired by such
Grantor, wherever located, and whether now or hereafter existing
or arising (collectively, the "Collateral"):
SECTION 16.01 all equipment in all of its forms, all fixtures
and all parts thereof and all accessions thereto (any and all
such equipment, fixtures, parts and accessions being the
"Equipment");
SECTION 16.02 all inventory in all of its forms, (including,
without limitation, (i) all items of clothing, clothing
accessories and raw materials and work in process therefor,
finished goods thereof and materials used or consumed in the
manufacture, production, preparation or shipping thereof,
(ii) goods in which such Grantor has an interest in mass or a
joint or other interest or right of any kind (including, without
limitation, goods in which such Grantor has an interest or right
as consignee) and (iii) goods that are returned to or repossessed
or stopped in transit by such Grantor), and all accessions
thereto and products thereof and documents therefor (any and all
such inventory, accessions, products and documents being the
"Inventory");
SECTION 16.03 all accounts, chattel paper, instruments, deposit
accounts, general intangibles and other obligations of any kind,
whether or not arising out of or in connection with the sale or
lease of goods or the rendering of services and whether or not
earned by performance, and all rights now or hereafter existing
in and to all security agreements, leases and other contracts
securing or otherwise relating to any such accounts, chattel
paper, instruments, deposit accounts, general intangibles or
obligations (any and all such accounts, chattel paper,
instruments, deposit accounts, general intangibles and
obligations, to the extent not referred to in clause (d), (e) or
(f) below, being the "Receivables", and any and all such security
agreements, leases and other contracts being the "Related
Contracts");
SECTION 16.04 the following (the "Security Collateral"):
(i) the Initial Pledged Shares and the certificates, if any,
representing the Initial Pledged Shares, and all dividends, cash,
instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange
for any or all of the Initial Pledged Shares;
(ii) the Initial Pledged Debt and the instruments, if any,
evidencing the Initial Pledged Debt, and all interest, cash,
instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange
for any or all of the Initial Pledged Debt;
(iii) all additional shares of stock of any issuer of the
Pledged Shares from time to time acquired by such Grantor in any
manner (such shares, together with the Initial Pledged Shares,
being the "Pledged Shares"), and the certificates, if any,
representing such additional shares, and all dividends, cash,
instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange
for any or all of such shares;
(iv) all additional indebtedness from time to time owed to such
Grantor (such indebtedness, together with the Initial Pledged
Debt, being the "Pledged Debt") and the instruments, if any,
evidencing such indebtedness, and all interest, cash, instruments
and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all
of such indebtedness; and
(v) all other investment property (including, without
limitation, all (A) securities, whether certificated or
uncertificated, (B) security entitlements, (C) securities
accounts, (D) commodity contracts and (E) commodity accounts) in
which such Grantor has now, or acquires from time to time
hereafter, any right, title or interest in any manner, and the
certificates or instruments, if any, representing or evidencing
such investment property, and all dividends, interest,
distributions, value, cash, instruments and other property from
time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such investment
property;
SECTION 16.05 each of the agreements listed on Schedule II
hereto, as such agreements may be amended, amended and restated,
supplemented or otherwise modified from time to time
(collectively, the "Assigned Agreements"), including, without
limitation, (i) all rights of such Grantor to receive moneys due
and to become due under or pursuant to the Assigned Agreements,
(ii) all rights of such Grantor to receive proceeds of any
insurance, indemnity, warranty or guaranty with respect to the
Assigned Agreements, (iii) claims of such Grantor for damages
arising out of or for breach of or default under the Assigned
Agreements and (iv) the right of such Grantor to terminate the
Assigned Agreements, to perform thereunder and to compel
performance and otherwise exercise all remedies thereunder (all
such Collateral being the "Agreement Collateral");
SECTION 16.06 the following (collectively, the "Account
Collateral"):
(i) the Collateral Account, all financial assets from time to
time credited to the Collateral Account (including, without
limitation, all Cash Equivalents from time to time credited to
the Collateral Account), and all dividends, interest, cash,
instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange
for any or all of such financial assets;
(ii) the L/C Collateral Account, all financial assets from time
to time credited to the L/C Collateral Account (including,
without limitation, all Cash Equivalents from time to time
credited to the L/C Collateral Account), and all dividends,
interest, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of such financial assets;
(iii) the Cash Concentration Account, all financial assets
from time to time credited to the Cash Concentration Account
(including, without limitation, all Cash Equivalents from time to
time credited to the Cash Concentration Account), and all
dividends, interest, cash, instruments and other property from
time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such financial
assets, and all funds held therein and all certificates and
instruments, if any, from time to time representing or evidencing
the Cash Concentration Account;
(iv) all Pledged Accounts and all Additional Pledged Accounts (as
hereinafter defined) from time to time, all funds held therein
and all certificates and instruments, if any, from time to time
representing or evidencing the Pledged Accounts and the
Additional Pledged Accounts;
(v) all other deposit accounts (including, without limitation,
the Operating Account and the Disbursement Account) of such
Grantor from time to time, all funds held therein and all
certificates and instruments, if any, from time to time
representing or evidencing such deposit accounts;
(vi) all notes, certificates of deposit, deposit accounts, checks
and other instruments from time to time delivered to or otherwise
possessed by the Collateral Agent for or on behalf of such
Grantor, including, without limitation, those delivered or
possessed in substitution for or in addition to any or all of the
then existing Account Collateral; and
(vii) all interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the
then existing Account Collateral; and
SECTION 16.07 the following (collectively, the "Intellectual
Property Collateral"):
(i) all United States, international and foreign patents, patent
applications and statutory invention registrations, including,
without limitation, the patents and patent applications set forth
in Schedule V hereto (as such Schedule V may be supplemented from
time to time by supplements to this Agreement, each such
supplement being in substantially the form of Exhibit G hereto
(an "IP Security Agreement Supplement"), executed and delivered
by such Grantor to the Collateral Agent from time to time),
together with all reissues, divisions, continuations,
continuations-in-part, extensions and reexaminations thereof, all
inventions therein, all rights therein provided by international
treaties or conventions and all improvements thereto, and all
other rights of any kind whatsoever of such Grantor accruing
thereunder or pertaining thereto (the "Patents");
(ii) all trademarks (including, without limitation, service
marks), certification marks, collective marks, trade dress,
logos, domain names, product configurations, trade names,
business names, corporate names and other source identifiers,
whether or not registered, whether currently in use or not,
including, without limitation, all common law rights and
registrations and applications for registration thereof,
including, without limitation, the trademark registrations and
trademark applications set forth in Schedule V hereto (as such
Schedule V may be supplemented from time to time by IP Security
Agreement Supplements executed and delivered by such Grantor to
the Collateral Agent from time to time), and all other marks
registered in the U.S. Patent and Trademark Office or in any
office or agency of any State or Territory of the United States
or any foreign country (but excluding any United States intent-to-
use trademark application prior to the filing and acceptance of a
Statement of Use or an Amendment to allege use in connection
therewith to the extent that a valid security interest may not be
taken in such an intent-to-use trademark application under
applicable law), and all rights therein provided by international
treaties or conventions, all reissues, extensions and renewals of
any of the foregoing, together in each case with the goodwill of
the business connected therewith and symbolized thereby, and all
rights corresponding thereto throughout the world and all other
rights of any kind whatsoever of such Grantor accruing thereunder
or pertaining thereto (the "Trademarks");
(iii) all copyrights, copyright applications, copyright
registrations and like protections in each work of authorship,
whether statutory or common law, whether published or
unpublished, any renewals or extensions thereof, all copyrights
of works based on, incorporated in, derived from, or relating to
works covered by such copyrights, including, without limitation,
the copyright registrations and copyright applications set forth
in Schedule V hereto including, without limitation, the trademark
registrations and trademark applications set forth in Schedule V
hereto (as such Schedule V may be supplemented from time to time
by IP Security Agreement Supplements executed and delivered by
such Grantor to the Collateral Agent from time to time), together
with all rights corresponding thereto throughout the world and
all other rights of any kind whatsoever of such Grantor accruing
thereunder or pertaining thereto (the "Copyrights");
(iv) all confidential and proprietary information, including,
without limitation, know-how, trade secrets, manufacturing and
production processes and techniques, inventions, research and
development information, technical data, financial, marketing and
business data, pricing and cost information, business and
marketing plans and customer and supplier lists and information
(the "Trade Secrets");
(v) all computer software programs and databases (including,
without limitation, source code, object code and all related
applications and data files), firmware, and documentation and
materials relating thereto, and all rights with respect to the
foregoing, together with any and all options, warranties, service
contracts, program services, test rights, maintenance rights,
improvement rights, renewal rights and indemnifications and any
substitutions, replacements, additions or model conversions of
any of the foregoing (the "Computer Software");
(vi) all license agreements, permits, authorizations and
franchises, whether with respect to the Patents, Trademarks,
Copyrights, Trade Secrets or Computer Software, or with respect
to the patents, trademarks, copyrights, trade secrets, computer
software or other proprietary right of any other Person,
including, without limitation, the license agreements set forth
in Schedule V hereto (as such Schedule V may be supplemented from
time to time by IP Security Agreement Supplements executed and
delivered by such Grantor to the Collateral Agent from time to
time), and all income, royalties and other payments now or
hereafter due and/or payable with respect thereto, subject, in
each case, to the terms of such license agreements, permits,
authorizations and franchises, (the "Licenses"); and
(vii) any and all claims for damages for past, present and
future infringement, misappropriation or breach with respect to
the Patents, Trademarks, Copyrights, Trade Secrets, Computer
Software or Licenses, with the right, but not the obligation, to
sue for and collect, or otherwise recover, such damages; and
SECTION 16.08 all proceeds of any and all of the Collateral
(including, without limitation, proceeds that constitute property
of the types described in clauses (a) through (g) of this
Section 1 and this clause (h)) and, to the extent not otherwise
included, all (i) payments under insurance (whether or not the
Collateral Agent is the loss payee thereof), or any indemnity,
warranty or guaranty, payable by reason of loss or damage to or
otherwise with respect to any of the foregoing Collateral and
(ii) cash.
ARTICLE 17 SECURITY FOR OBLIGATIONS
. (a) This Agreement secures, in the case of each
Grantor, the payment of all Obligations of such Grantor now or
hereafter existing under the Loan Documents, whether direct or
indirect, absolute or contingent, and whether for principal,
reimbursement obligations, interest, fees, premiums, penalties,
indemnifications, contract causes of action, costs, expenses or
otherwise (all such Obligations being the "Secured Obligations").
Without limiting the generality of the foregoing, this Agreement
secures, as to each Grantor, the payment of all amounts that
constitute part of the Secured Obligations and would be owed by
such Grantor to any Secured Party under the Loan Documents but
for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar
proceeding involving a Loan Party.
SECTION 17.02 This Agreement shall, in the case of each Grantor
that is a debtor in a Case, be subject to the approval of the
Bankruptcy Court.
ARTICLE 18 GRANTORS REMAIN LIABLE
. Anything herein to the contrary notwithstanding,
(a) each Grantor shall remain liable under the contracts and
agreements included in such Grantor's Collateral to the extent
set forth therein to perform all of its duties and obligations
thereunder to the same extent as if this Agreement had not been
executed, (b) the exercise by the Collateral Agent of any of the
rights hereunder shall not release any Grantor from any of its
duties or obligations under the contracts and agreements included
in the Collateral and (c) no Secured Party shall have any
obligation or liability under the contracts and agreements
included in the Collateral by reason of this Agreement or any
other Loan Document, nor shall any Secured Party be obligated to
perform any of the obligations or duties of any Grantor
thereunder or to take any action to collect or enforce any claim
for payment assigned hereunder.
ARTICLE 19 PERFECTION AND PRIORITY OF SECURITY INTERESTS,
MORTGAGES AND LIENS
. At the request of the Collateral Agent, the Grantors
shall execute and deliver to the Lenders documentation
satisfactory to the Lenders evidencing the security interests,
charges, mortgages and liens granted hereby and providing for the
perfection of such security interests, mortgages and liens, and
the automatic stay provisions of section 362 of the Bankruptcy
Code (if and to the extent applicable) are modified pursuant to
the Interim Order to permit the execution, delivery and filing of
such documentation; provided that (except with respect to
Non-Filing Subsidiaries) no such documentation shall be required
as a condition to the validity, priority or perfection of any of
the security interests, charges, mortgages or liens created
pursuant to this Agreement which security interests, charges,
mortgages and liens shall, pursuant to sections 364(c) and 364(d)
of the Bankruptcy Code, be deemed valid and properly perfected at
all times from and after entry of the Interim Order. The claims
arising under this Agreement and the Loan Documents shall
constitute, in accordance with section 364(c)(1) of the
Bankruptcy Code, (if and to the extent possible) allowed
administrative expense claims having priority over all
administrative expenses of the kind specified in sections 503(b)
or 507(b) of the Bankruptcy Code in accordance with the terms of
Section 5.01(i) of the Credit Agreement, the Interim Order and
the Final Order. Upon the occurrence and during the continuance
of an Event of Default, such priority and security interests,
charges, mortgages and liens shall be subject to the Carve-Out
(except with respect to Non-Filing Subsidiaries).
ARTICLE 20 DELIVERY AND CONTROL OF SECURITY COLLATERAL
. (a) All certificates or instruments representing or
evidencing Security Collateral shall be delivered to and held by
or on behalf of the Collateral Agent pursuant hereto and shall be
in suitable form for transfer by delivery, or shall be
accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance satisfactory to
the Collateral Agent. The Collateral Agent shall have the right,
at any time, after and during the continuance of an Event of
Default, in its discretion and without notice to any Grantor, to
transfer to or to register in the name of the Collateral Agent or
any of its nominees any or all of the Security Collateral,
subject only to the revocable rights specified in Section 16(a).
In addition, after and during the continuance of an Event of
Default, the Collateral Agent shall have the right at any time to
exchange certificates or instruments representing or evidencing
Security Collateral for certificates or instruments of smaller or
larger denominations. Also, the Collateral Agent shall have the
right at any time to convert Security Collateral consisting of
financial assets credited to any securities account to Security
Collateral consisting of financial assets held directly by the
Collateral Agent, and to convert Security Collateral consisting
of financial assets held directly by the Collateral Agent to
Security Collateral consisting of financial assets credited to
any securities account.
(b) With respect to any Security Collateral in which any Grantor
has any right, title or interest and that constitutes an
uncertificated security, such Grantor will cause the issuer
thereof either (i) to register the Collateral Agent as the
registered owner of such security or (ii) to agree in writing
with such Grantor and the Collateral Agent that such issuer will
comply with instructions with respect to such security originated
by the Collateral Agent without further consent of such Grantor,
such agreement to be in form and substance satisfactory to the
Collateral Agent.
(c) With respect to any Security Collateral in which any Grantor
has any right, title or interest and that constitutes a security
entitlement, such Grantor will cause the securities intermediary
with respect to such security entitlement either (i) to identify
in its records the Collateral Agent as the entitlement holder of
such security entitlement against such securities intermediary or
(ii) to agree in writing with such Grantor and the Collateral
Agent that such securities intermediary will comply with
entitlement orders (that is, notifications communicated to such
securities intermediary directing transfer or redemption of the
financial asset to which such Grantor has a security entitlement)
originated by the Collateral Agent without further consent of
such Grantor, such agreement to be in substantially the form of
Exhibit D hereto or otherwise in form and substance satisfactory
to the Collateral Agent (such agreement being a "Securities
Account Control Agreement").
(d) With respect to any Security Collateral in which any Grantor
has any right, title or interest and that constitutes a commodity
contract, such Grantor shall cause the commodity intermediary
with respect to such commodity contract to agree in writing with
such Grantor and the Collateral Agent that such commodity
intermediary will apply any value distributed on account of such
commodity contract as directed by the Collateral Agent without
further consent of such Grantor, such agreement to be in
substantially the form of Exhibit E hereto or otherwise in form
and substance satisfactory to the Collateral Agent (such
agreement being a "Commodity Account Control Agreement", and all
such agreements, together with all Securities Account Control
Agreements being, collectively, "Control Agreements").
(e) No Grantor will change or add any securities intermediary or
commodity intermediary that maintains any securities account or
commodity account in which any of the Collateral is credited or
carried, or change or add any such securities account or
commodity account, in each case without first complying with the
above provisions of this Section 5 in order to perfect the
security interest granted hereunder in such Collateral.
ARTICLE 21 MAINTAINING THE PLEDGED ACCOUNTS AND THE
ADDITIONAL PLEDGED ACCOUNTS
. On and after the date that is (i) in respect of
lockboxes and deposit accounts listed under the heading "Pledged
Accounts" in Schedule VI hereto (collectively and together with
the Cash Concentration Account, the Operating Account and the
Disbursement Account, the "Pledged Accounts"), 10 days after the
Effective Date, and (ii) in respect of lockboxes and deposit
accounts listed under the heading "Additional Pledged Accounts"
in Schedule VI hereto (collectively, the "Additional Pledged
Accounts"), (A) 30 days after the Effective Date as to no fewer
than 75% of such Additional Pledged Accounts and (B) 60 days
after the Effective Date as to all remaining such Additional
Pledged Accounts, and, in each case, thereafter, so long as any
Advance, Pre-Petition Obligation or any other Obligation of any
Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall
have any Commitment under the Credit Agreement:
(a) Each Grantor will (i) maintain the Pledged Accounts only
with banks (the "Pledged Account Banks") that have entered into
letter agreements in substantially the form of Exhibit B hereto
or otherwise in form and substance satisfactory to the Collateral
Agent with such Grantor and the Collateral Agent (the "Pledged
Account Letters"), other than the Cash Concentration Account, the
Operating Account and the Disbursement Account and (ii) maintain
the Additional Pledged Accounts only with banks (the "Additional
Pledged Account Banks") that have entered into letter agreements
in substantially the form of Exhibit B hereto or otherwise in
form and substance satisfactory to the Collateral Agent with such
Grantor and the Collateral Agent (the "Additional Pledged Account
Letters").
SECTION 21.01 Each Grantor will (i) immediately instruct each
Person obligated at any time to make any payment to such Grantor
for any reason (an "Obligor") to make such payment to a Pledged
Account of such Grantor or to the Cash Concentration Account and
(ii) deposit in a Pledged Account or pay to the Collateral Agent
for deposit in the Cash Concentration Account, at the end of each
Business Day, all proceeds of Collateral and all other cash of
such Grantor except for such cash that is necessary to pay
operating expenses incurred in the normal course of business by
such Grantor for which payment has been issued, including,
without limitation, payroll and benefits costs, telephone,
travel, rent and other occupancy costs, professional expenses
including consulting, audit, account and legal expenses,
corporate insurance expenses and data processing costs.
SECTION 21.02 Concurrently with or promptly after entering into
a Pledged Account Letter or an Additional Pledged Account Letter
with any Pledged Account Bank or Additional Pledged Account Bank,
as applicable, each Grantor will instruct such Pledged Account
Bank or Additional Pledged Account Bank, as applicable, to
transfer to the Cash Concentration Account, at the end of each
Business Day, in same day funds, an amount equal to the credit
balance of the Pledged Account in such Pledged Account Bank or of
the Additional Pledged Account is such Additional Pledged Account
Bank, as applicable. If any Grantor shall fail to give any such
instructions to any Pledged Account Bank or Additional Pledged
Account Bank, the Collateral Agent may do so without further
notice to any Grantor.
SECTION 21.03 Each Grantor agrees that it will not add any bank
as a Pledged Account Bank or Additional Pledged Account Bank or
add any account as a Pledged Account or Additional Pledged
Account to those listed in Schedule VI hereto, unless the
Collateral Agent shall have received at least 10 days' prior
written notice of such addition and shall have received a Pledged
Account Letter or Additional Pledged Account Letter, as
applicable, executed by such new Pledged Account Bank or
Additional Pledged Account Bank, as applicable, and such Grantor
or a supplement to an existing Pledged Account Letter or
Additional Pledged Account Letter, as applicable, covering such
new Pledged Account or Additional Pledged Account, as the case
may be (and, upon the receipt by the Collateral Agent of such
Pledged Account Letter, Additional Pledged Account Letter or
supplement, Schedule VI hereto shall be automatically amended to
include such Pledged Account Bank or Pledged Account or
Additional Pledged Account Bank or Additional Pledged Account, as
applicable). Each Grantor agrees that it will not terminate any
bank as a Pledged Account Bank or Additional Pledged Account Bank
or terminate any account as a Pledged Account or Additional
Pledged Account, unless the Collateral Agent shall have received
at least 10 days' prior written notice of such termination (and,
upon such termination, Schedule VI hereto shall be automatically
amended to delete such Pledged Account Bank or Additional Pledged
Account Bank or Pledged Account or Additional Pledged Account, as
applicable).
SECTION 21.04 Upon any termination of any Pledged Account Letter
or Additional Pledged Account Letter or other agreement with
respect to the maintenance of a Pledged Account or Additional
Pledged Account, as applicable, by any Grantor or any Pledged
Account Bank or Additional Pledged Account Bank, such Grantor
will immediately notify all Obligors that were making payments to
such Pledged Account or Additional Pledged Account, to make all
future payments to another Pledged Account or to the Cash
Concentration Account. Each Grantor agrees to terminate any or
all Pledged Accounts, Additional Pledged Accounts, Pledged
Account Letters and Additional Pledged Account Letters upon
request by the Collateral Agent.
SECTION 21.05 The Borrower will draw checks on, and otherwise
withdraw amounts from, the Operating Account and the Disbursement
Account in such amounts as may be required in the ordinary course
of business (including, without limitation, to pay or prepay Debt
outstanding under the Loan Documents). Subject to Section 9(a),
so long as no Event of Default shall have occurred and be
continuing, the Collateral Agent will direct the applicable
Collateral Bank (as hereinafter defined) to transfer amounts on
deposit in the Cash Concentration Account to the Operating
Account, including for further credit to the Disbursement
Account, to the extent necessary to pay all checks drawn on, and
all amounts otherwise withdrawn from, the Operating Account and
the Disbursement Account.
SECTION 21.06 Each Grantor agrees that it will not add any
account as an unblocked account to those listed in Schedule VII
hereto and will not terminate any account as an unblocked
account, unless the Collateral Agent shall have received at least
10 days' prior written notice of such addition or termination
(and, upon such addition or termination, Schedule VII hereto
shall be automatically amended to add or delete such account, as
applicable).
ARTICLE 22 MAINTAINING THE OPERATING ACCOUNT, THE
DISBURSEMENT ACCOUNT, THE CASH CONCENTRATION ACCOUNT, THE
COLLATERAL ACCOUNT AND THE L/C COLLATERAL ACCOUNT
. So long as any Advance or any other Obligation of
any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender shall have
any Commitment under the Credit Agreement:
(b) The Borrower will maintain the Operating Account, the
Disbursement Account, the Cash Concentration Account, the
Collateral Account and the L/C Collateral Account with the
Collateral Agent or another commercial bank acceptable to the
Collateral Agent and that, in the case of the Cash Concentration
Account, has entered into a letter agreement in substantially the
form of Exhibit H hereto or otherwise in form and substance
satisfactory to the Collateral Agent with the Borrower and the
Collateral Agent and, in the case of the Cash Concentration
Account, the Collateral Account and the L/C Collateral Account,
has entered into a Securities Account Control Agreement (the
Collateral Agent or any bank with which the Operating Account,
the Cash Concentration Account, the Collateral Account or the L/C
Collateral Account are maintained being a "Collateral Bank").
SECTION 22.01 It shall be a term and condition of each of the
Cash Concentration Account, the Collateral Account and the L/C
Collateral Account, notwithstanding any term or condition to the
contrary in any other agreement relating to the Cash
Concentration Account, the Collateral Account or the L/C
Collateral Account, as the case may be, and except as otherwise
provided by the provisions of Sections 6, 9 and 23, that no
amount (including interest on Cash Equivalents credited thereto)
will be paid or released to or for the account of, or withdrawn
by or for the account of, the Borrower or any other Person from
the Cash Concentration Account, the Collateral Account or the L/C
Collateral Account, as the case may be.
ARTICLE 23 INVESTING OF AMOUNTS IN THE CASH CONCENTRATION
ACCOUNT, THE COLLATERAL ACCOUNT AND THE L/C COLLATERAL ACCOUNT
. The Collateral Agent will, subject to the provisions
of Sections 6, 9 and 23, from time to time direct the applicable
Collateral Bank to (a) invest amounts received with respect to
the Cash Concentration Account, the Collateral Account and the
L/C Collateral Account in such Cash Equivalents credited to the
Cash Concentration Account, the Collateral Account and the L/C
Collateral Account, respectively, as the Borrower may select and
the Collateral Agent may approve and (b) invest interest paid on
the Cash Equivalents referred to in clause (a) above, and
reinvest other proceeds of any such Cash Equivalents that may
mature or be sold, in each case in such Cash Equivalents credited
to the Cash Concentration Account, the Collateral Account and the
L/C Collateral Account, respectively, as the Borrower may select
and the Collateral Agent may approve. Interest and proceeds that
are not invested or reinvested in Cash Equivalents as provided
above shall be deposited and held in a deposit account with the
applicable Collateral Bank in the name of the Collateral Agent
and under the sole control and dominion of the Collateral Agent,
such deposit account to be deemed to constitute part of the Cash
Concentration Account, the Collateral Account or the L/C
Collateral Account, as the case may be. In addition, the
Collateral Agent shall have the right at any time to direct the
applicable Collateral Bank to exchange such Cash Equivalents for
similar Cash Equivalents of smaller or larger denominations, or
for other Cash Equivalents, credited to the Cash Concentration
Account, the Collateral Account or the L/C Collateral Account, as
the case may be.
ARTICLE 24 RELEASE OF AMOUNTS
. (a) On each Business Day the available and collected
funds on deposit in the Cash Concentration Account shall be
applied by the Collateral Agent as follows:
(i) first, if an Event of Default has occurred and is
continuing, to make the deposit to the L/C Collateral Account
required by Section 6.02 of the Credit Agreement;
(ii) second, to repay the principal amount of all Swing Line
Advances, if any are then outstanding;
(iii) third, to repay the principal amount of all Working
Capital Advances that are Base Rate Advances (other than Swing
Line Advances), if any are then outstanding, and, if such
Business Day is the last day of an Interest Period for any
Working Capital Advances that are Eurodollar Rate Advances, to
repay all such Advances;
(iv) fourth, to set aside an amount equal to all Working Capital
Advances that are Eurodollar Rate Advances having an Interest
Period ending within the next two succeeding Business Days of
such Business Day; and
(v) fifth, if the Termination Date falls on such Business Day,
to repay the Term Advance,
and thereafter, so long as no Default shall have occurred and be
continuing, in accordance with Section 6(f).
(b) So long as no Default shall have occurred and be
continuing, the Collateral Agent will direct the applicable
Collateral Bank to pay and release to the Borrower or at its
order or, at the request of the Borrower, to the Administrative
Agent to be applied to the Obligations of the Borrower under the
Loan Documents, such amount, if any, as is then on deposit in the
Collateral Account or the L/C Collateral Account, as the case may
be, to the extent permitted to be released under the terms of the
Credit Agreement.
ARTICLE 25 REPRESENTATIONS AND WARRANTIES
. Each Grantor represents and warrants as follows:
(c) All of the Equipment and Inventory of such Grantor are
located at the places specified therefor in Schedule III hereto,
as such Schedule III may be amended from time to time pursuant to
Section 12(a). The chief executive office of such Grantor, and
the original copies of each Assigned Agreement and Related
Contract to which such Grantor is a party and all originals of
all chattel paper that evidence Receivables of such Grantor, are
located at the address specified therefor in Schedule IV hereto,
as such Schedule IV may be amended from time to time pursuant to
Section 14(a). Such Grantor's federal tax identification number
is set forth opposite such Grantor's name in Schedule IV hereto.
All Security Collateral consisting of certificated securities and
instruments have been delivered to the Collateral Agent. None of
the Receivables or Agreement Collateral is evidenced by a
promissory note or other instrument that has not been delivered
to the Collateral Agent.
SECTION 25.01 Such Grantor is the legal and beneficial owner of
the Collateral of such Grantor free and clear of any Lien, claim,
option or right of others, except for the security interest
created under this Agreement or permitted under the Credit
Agreement. No effective financing statement or other instrument
similar in effect covering all or any part of such Collateral or
listing such Grantor or any trade name of such Grantor as debtor
is on file in any recording office, except such as may have been
filed in favor of the Collateral Agent relating to the Loan
Documents or as otherwise permitted under the Credit Agreement.
Such Grantor has the trade names listed on Schedule V hereto.
SECTION 25.02 Such Grantor has exclusive possession and control
of the Equipment and Inventory other than Inventory stored at any
leased premises or warehouse.
SECTION 25.03 The Pledged Shares pledged by such Grantor
hereunder have been duly authorized and validly issued and are
fully paid and non-assessable. The Pledged Debt pledged by such
Grantor hereunder has been duly authorized, authenticated or
issued and delivered, is the legal, valid and binding obligation
of the issuers thereof, may be evidenced by one or more
promissory notes (which notes have been delivered to the
Collateral Agent) and is not in default.
SECTION 25.04 The Initial Pledged Shares constitute the
percentage of the issued and outstanding shares of stock of the
issuers thereof indicated on Schedule I hereto as of the
Effective Date. The Initial Pledged Debt constitutes all of the
outstanding indebtedness owed to such Grantor by the issuers
thereof and is outstanding, as of the Effective Date, in the
principal amount indicated on Schedule I hereto as of the
Effective Date.
SECTION 25.05 All of the investment property owned by such
Grantor as of the Effective Date is listed on Schedule I hereto.
SECTION 25.06 The Assigned Agreements to which such Grantor is a
party, true and complete copies of which have been furnished to
each Secured Party, have been duly authorized, executed and
delivered by all parties thereto, have not been amended, amended
and restated, supplemented or otherwise modified, are in full
force and effect and are binding upon and enforceable against all
parties thereto in accordance with their terms. There exists no
default under any Assigned Agreement to which such Grantor is a
party by any party thereto. Each party to the Assigned
Agreements listed on Schedule II hereto to which such Grantor is
a party other than the Grantors has executed and delivered to
such Grantor a consent, in substantially the form of Exhibit C
hereto or otherwise in form and substance satisfactory to the
Collateral Agent, to the assignment of the Agreement Collateral
to the Collateral Agent pursuant to this Agreement.
SECTION 25.07 Such Grantor has no Pledged Accounts, Additional
Pledged Accounts or other deposit accounts other than the Pledged
Accounts, Additional Pledged Accounts and the Cash Concentration
Account listed on Schedule VI hereto, as such Schedule VI may be
amended from time to time pursuant to Section 6(d) and the
permitted unblocked accounts, including the Operating Account and
the Disbursement Account, listed on Schedule VII hereto, as such
Schedule VII may be amended from time to time pursuant to Section
6(g).
SECTION 25.08 All filings and other actions necessary or
desirable to perfect and protect the security interest in the
Collateral of such Grantor created under this Agreement have been
duly made or taken and are in full force and effect or shall be
made or taken promptly upon the execution of this Agreement, and
this Agreement and the Interim Order or the Final Order, as
applicable, create in favor of the Collateral Agent for the
benefit of the Secured Parties a valid and, together with such
filings and other actions, perfected first priority security
interest in the Collateral of such Grantor, securing the payment
of the Secured Obligations.
SECTION 25.09 Except for the Interim Order or the Final Order,
as applicable, which is in full force and effect, no
authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or any
other third party is required for (i) the grant by such Grantor
of the assignment, pledge and security interest granted hereunder
or for the execution, delivery or performance of this Agreement
by such Grantor, (ii) the perfection or maintenance of the
assignment, pledge and security interest created hereunder
(including the first priority nature of such assignment, pledge
or security interest), except for the filing of financing and
continuation statements under the Uniform Commercial Code, which
financing statements have been duly executed and shall be filed
promptly upon the execution of this Agreement, the recordation of
the Intellectual Property Security Agreements referred to in
Section 15(f) with the U.S. Patent and Trademark Office and the
U.S. Copyright Office, which Agreements have been duly executed
and shall be recorded promptly upon the execution of this
Agreement and the actions described in Section 5 with respect to
Security Collateral, which actions have been taken and are in
full force and effect, or (iii) for the exercise by the
Collateral Agent of its voting or other rights provided for in
this Agreement or the remedies in respect of the Collateral
pursuant to this Agreement, except as may be required in
connection with the disposition of any portion of the Security
Collateral by laws affecting the offering and sale of securities
generally.
SECTION 25.10 The Inventory that has been produced or
distributed by such Grantor has been produced in compliance with
all requirements of applicable law, including, without
limitation, the Fair Labor Standards Act.
SECTION 25.11 As to itself and its Intellectual Property
Collateral:
(i) The rights of such Grantor in or to the Intellectual
Property Collateral do not conflict with, misappropriate or
infringe upon the intellectual property rights of any third
party, and no claim has been asserted that the use of such
Intellectual Property Collateral does or may infringe upon the
intellectual property rights of any third party.
(ii) Such Grantor is the exclusive owner of the entire and,
except as otherwise permitted under the Credit Agreement,
unencumbered right, title and interest in and to the Intellectual
Property Collateral and is entitled to use all such Intellectual
Property Collateral without limitation, subject only to the
license terms of the Licenses.
(iii) The Intellectual Property Collateral set forth on
Schedule V hereto includes all of the patents, patent
applications, trademark registrations and applications, copyright
registrations and applications and Licenses owned by such
Grantor.
(iv) The Intellectual Property Collateral is subsisting and has
not been adjudged invalid or unenforceable in whole or part, and
to the best of such Grantor's knowledge, is valid and
enforceable. Such Grantor is not aware of any uses of any item
of Intellectual Property Collateral that could be expected to
lead to such item becoming invalid or unenforceable.
(v) Such Grantor has made or performed all filings, recordings
and other acts and has paid all required fees and taxes to
maintain and protect its interest in each and every item of
Intellectual Property Collateral in full force and effect, and to
protect and maintain its interest therein including, without
limitation, recordations of any of its interests in the Patents
and Trademarks with the U.S. Patent and Trademark Office and in
corresponding national and international patent offices, and
recordation of any of its interests in the Copyrights with the
U.S. Copyright Office and in corresponding national and
international copyright offices. Such Grantor has used proper
statutory notice in connection with its use of each patent,
trademark and copyright of the Intellectual Property Collateral.
(vi) No action, suit, investigation, litigation or proceeding has
been asserted or is pending or threatened against such Grantor
(i) based upon or challenging or seeking to deny or restrict the
use of any of the Intellectual Property Collateral, or
(ii) alleging that any services provided by, processes used by,
or products manufactured or sold by, such Grantor infringe upon
or misappropriate any patent, trademark, copyright or any other
proprietary right of any third party. To the best of such
Grantor's knowledge, no Person is engaging in any activity that
infringes upon or misappropriates the Intellectual Property
Collateral or upon the rights of such Grantor therein. Except as
set forth on Schedule V hereto, such Grantor has not granted any
license, release, covenant not to sue, non-assertion assurance,
or other right to any Person with respect to any part of the
Intellectual Property Collateral. The consummation of the
transactions contemplated by the Transaction Documents will not
result in the termination or impairment of any of the
Intellectual Property Collateral.
(vii) With respect to each License: (A) such License is valid
and binding and in full force and effect and represents the
entire agreement between the respective licensor and licensee
with respect to the subject matter of such License; (B) such
License will not cease to be valid and binding and in full force
and effect on terms identical to those currently in effect as a
result of the rights and interest granted herein, nor will the
grant of such rights and interest constitute a breach or default
under such License or otherwise give the licensor or licensee a
right to terminate such License; (C) such Grantor has not
received any notice of termination or cancellation under such
License; (D) such Grantor has not received any notice of a breach
or default under such License, which breach or default has not
been cured; (E) such Grantor has not granted to any other third
party any rights, adverse or otherwise, under such License; and
(F) neither such Grantor nor any other party to such License is
in breach or default in any material respect, and no event has
occurred that, with notice or lapse of time or both, would
constitute such a breach or default or permit termination,
modification or acceleration under such License.
(viii) To the best of such Grantor's acknowledge, (A) none of
the Trade Secrets of such Grantor has been used, divulged,
disclosed or appropriated to the detriment of such Grantor for
the benefit of any other Person other than such Grantor; (B) no
employee, independent contractor or agent of such Grantor has
misappropriated any trade secrets of any other Person in the
course of the performance of his or her duties as an employee,
independent contractor or agent of such Grantor; and (C) no
employee, independent contractor or agent of such Grantor is in
default or breach of any term of any employment agreement, non-
disclosure agreement, assignment of inventions agreement or
similar agreement or contract relating in any way to the
protection, ownership, development, use or transfer of such
Grantor's Intellectual Property Collateral.
ARTICLE 26 FURTHER ASSURANCES
. (a) Each Grantor agrees that from time to time, at
the request of the Collateral Agent and at the expense of such
Grantor, such Grantor will promptly execute and deliver all
further instruments and documents, and take all further action,
that may be reasonably necessary or desirable, or that the
Collateral Agent may reasonably request, in order to perfect and
protect any pledge, assignment or security interest granted or
purported to be granted by such Grantor hereunder or to enable
the Collateral Agent to exercise and enforce its rights and
remedies hereunder with respect to any Collateral of such
Grantor. Without limiting the generality of the foregoing, each
Grantor will promptly with respect to Collateral of such Grantor:
(i) if any such Collateral shall be evidenced by a promissory
note or other instrument or chattel paper, deliver and pledge to
the Collateral Agent hereunder such note or instrument or chattel
paper duly indorsed and accompanied by duly executed instruments
of transfer or assignment, all in form and substance satisfactory
to the Collateral Agent; (ii) execute and file such financing or
continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as
the Collateral Agent may request, in order to perfect and
preserve the security interest granted or purported to be granted
by such Grantor hereunder; (iii) deliver and pledge to the
Collateral Agent for benefit of the Secured Parties certificates
representing Security Collateral that constitutes certificated
securities, accompanied by undated stock or bond powers executed
in blank; and (iv) deliver to the Collateral Agent evidence that
all other action that the Collateral Agent may deem reasonably
necessary or desirable in order to perfect and protect the
security interest created by such Grantor under this Agreement
has been taken.
(b) Each Grantor hereby authorizes the Collateral Agent to file
one or more financing or continuation statements, and amendments
thereto, relating to all or any part of the Collateral of such
Grantor without the signature of such Grantor where permitted by
law. A photocopy or other reproduction of this Agreement or any
financing statement covering the Collateral or any part thereof
shall be sufficient as a financing statement where permitted by
law.
(c) Each Grantor will furnish to the Collateral Agent from time
to time statements and schedules further identifying and
describing the Collateral of such Grantor and such other reports
in connection with such Collateral as the Collateral Agent may
reasonably request, all in reasonable detail.
ARTICLE 27 AS TO EQUIPMENT AND INVENTORY
. (a) Each Grantor will keep the Equipment and
Inventory of such Grantor (other than Inventory sold in the
ordinary course of business) at the places therefor specified in
Section 10(a) or, upon 30 days' prior written notice to the
Collateral Agent, at such other places in a jurisdiction where
all action required by Section 11 shall have been taken with
respect to such Equipment and Inventory (and, upon the taking of
such action in such jurisdiction, Schedule III hereto shall be
automatically amended to include such other places).
(b) Each Grantor will cause the Equipment of such Grantor to be
maintained and preserved in the same condition, repair and
working order as when new, ordinary wear and tear excepted, and
in accordance with any manufacturer's manual, and will forthwith,
or in the case of any loss or damage to any of such Equipment as
soon as practicable after the occurrence thereof, make or cause
to be made all repairs, replacements and other improvements in
connection therewith that are necessary or desirable to such end.
Each Grantor will promptly furnish to the Collateral Agent a
statement respecting any material loss or damage to any of the
Equipment or Inventory of such Grantor.
(c) Each Grantor will pay promptly when due all property and
other taxes, assessments and governmental charges or levies
imposed upon, and all claims (including, without limitation,
claims for labor, materials and supplies) against, the Equipment
and Inventory of such Grantor, except to the extent payment
thereof is not required by Section 5.01(b) of the Credit
Agreement. In producing its Inventory, each Grantor will comply
with all requirements of applicable law, including, without
limitation, the Fair Labor Standards Act.
ARTICLE 28 INSURANCE
. (a) Each Grantor will, at its own expense, maintain
insurance with respect to the Equipment and Inventory of such
Grantor in such amounts, against such risks, in such form and
with such insurers, as shall be satisfactory to the Collateral
Agent from time to time. Each policy of each Grantor for
liability insurance shall provide for all losses to be paid on
behalf of the Collateral Agent and such Grantor as their
interests may appear, and each policy for property damage
insurance shall provide for all losses to be paid directly to the
Collateral Agent or deposited directly into the Cash
Concentration Account. Each such policy shall in addition
(i) name such Grantor and the Collateral Agent as insured parties
thereunder (without any representation or warranty by or
obligation upon the Collateral Agent) as their interests may
appear, (ii) contain the agreement by the insurer that any loss
thereunder shall be payable to the Collateral Agent
notwithstanding any action, inaction or breach of representation
or warranty by such Grantor, (iii) provide that there shall be no
recourse against the Collateral Agent for payment of premiums or
other amounts with respect thereto and (iv) provide that at least
10 days' prior written notice of cancellation or of lapse shall
be given to the Collateral Agent by the insurer. Each Grantor
will, if so requested by the Collateral Agent, deliver to the
Collateral Agent original or duplicate policies of such insurance
and, as often as the Collateral Agent may reasonably request, a
report of a reputable insurance broker with respect to such
insurance. Further, each Grantor will, at the request of the
Collateral Agent, duly execute and deliver instruments of
assignment of such insurance policies to comply with the
requirements of Section 11 and cause the insurers to acknowledge
notice of such assignment.
(b) Reimbursement under any liability insurance maintained by
any Grantor pursuant to this Section 13 may be paid directly to
the Person who shall have incurred liability covered by such
insurance. In case of any loss involving damage to Equipment or
Inventory when subsection (c) of this Section 13 is not
applicable, the applicable Grantor will make or cause to be made
the necessary repairs to or replacements of such Equipment or
Inventory, and any proceeds of insurance properly received by or
released to such Grantor shall be used by such Grantor, except as
otherwise required hereunder or by the Credit Agreement, to pay
or as reimbursement for the costs of such repairs or
replacements.
(c) So long as no Default shall have occurred and be continuing,
all insurance payments received by the Collateral Agent in
connection with any loss, damage or destruction of any Inventory
or Equipment will be released by the Collateral Agent to the
applicable Grantor for the repair, replacement or restoration
thereof, subject to such terms and conditions with respect to the
release thereof as the Collateral Agent may reasonably require.
To the extent that (i) the amount of any such insurance payments
exceeds the cost of any such repair, replacement or restoration,
or (ii) such insurance payments are not otherwise required by the
applicable Grantor to complete any such repair, replacement or
restoration required hereunder, the Collateral Agent will not be
required to release the amount thereof to such Grantor and may
hold or continue to hold such amount in the Collateral Account as
additional security for the Secured Obligations of such Grantor
(except that the Collateral Agent will direct the applicable
Collateral Bank to release to such Grantor any such amount if and
to the extent that any prepayment of Obligations is required
under the Credit Agreement in connection with the receipt of such
amount and such prepayment has been made). Upon the occurrence
and during the continuance of any Default or the actual or
constructive total loss of any Equipment or Inventory, all
insurance payments in respect of such Equipment or Inventory
shall be deposited directly into the Cash Concentration Account
or paid to the Collateral Agent and, if paid directly to the
Collateral Agent, shall, in the Collateral Agent's sole
discretion, (i) be released to the applicable Grantor to be
applied as set forth in the first sentence of this subsection (c)
or (ii) be held as additional Collateral hereunder or applied as
specified in Section 23(b).
ARTICLE 29 PLACE OF PERFECTION; RECORDS; COLLECTION OF
RECEIVABLES
. (a) Each Grantor will keep its chief executive
office, and originals of the Assigned Agreements, and Related
Contracts to which such Grantor is a party and all originals of
all chattel paper that evidence Receivables of such Grantor, at
the location therefor specified in Section 10(a) or, upon 30
days' prior written notice to the Collateral Agent, at such other
location in a jurisdiction where all actions required by Section
11 shall have been taken with respect to the Collateral of such
Grantor (and, upon the taking of such action in such
jurisdiction, Schedule IV hereto shall be automatically amended
to include such other location). Each Grantor will hold and
preserve its records relating to the Collateral, the Assigned
Agreements, the Related Contracts and chattel paper and will
permit representatives of the Collateral Agent at any time during
normal business hours to inspect and make abstracts from such
records and other documents.
(b) Except as otherwise provided in this subsection (b), each
Grantor will continue to collect, at its own expense, all amounts
due or to become due such Grantor under the Receivables and the
Related Contracts. In connection with such collections, such
Grantor may take (and, at the Collateral Agent's direction, will
take) such action as such Grantor or the Collateral Agent may
deem necessary or advisable to enforce collection of the
Receivables and the Related Contracts; provided, however, that
the Collateral Agent shall have the right at any time, upon
written notice to such Grantor of its intention to do so, to
notify the Obligors under any Receivables or Related Contracts of
the assignment of such Receivables or Related Contracts to the
Collateral Agent and to direct such Obligors to make payment of
all amounts due or to become due to such Grantor thereunder
directly to the Collateral Agent and, upon such notification and
at the expense of such Grantor, to enforce collection of any such
Receivables or Related Contracts, and to adjust, settle or
compromise the amount or payment thereof, in the same manner and
to the same extent as such Grantor might have done. After
receipt by any Grantor of the notice from the Collateral Agent
referred to in the proviso to the preceding sentence, (i) all
amounts and proceeds (including instruments) received by such
Grantor in respect of the Receivables and the Related Contracts
of such Grantor shall be received in trust for the benefit of the
Collateral Agent hereunder, shall be segregated from other funds
of such Grantor and shall be forthwith paid over to the
Collateral Agent in the same form as so received (with any
necessary endorsement) to be deposited in the Collateral Account
and either (A) released to such Grantor on the terms set forth in
Section 9 so long as no Default shall have occurred and be
continuing or (B) if any Default shall have occurred and be
continuing, applied as provided in Section 23(b) and (ii) such
Grantor will not adjust, settle or compromise the amount or
payment of any Receivable, release wholly or partly any Obligor
thereof, or allow any credit or discount thereon. No Grantor
will permit or consent to the subordination of its right to
payment under any of the Receivables or the Related Contracts to
any other indebtedness or obligations of the Obligor thereof.
ARTICLE 30 AS TO INTELLECTUAL PROPERTY COLLATERAL.
(A) With respect to each item of its Intellectual Property
Collateral, each Grantor agrees to take, at its expense, all
necessary steps, including, without limitation, in the U.S.
Patent and Trademark Office, the U.S. Copyright Office and any
other governmental authority, to (i) maintain the validity and
enforceability of each such item of Intellectual Property
Collateral and maintain each such item of Intellectual Property
Collateral in full force and effect, and (ii) pursue the
registration and maintenance of each patent, trademark, or
copyright registration or application, now or hereafter included
in the Intellectual Property Collateral of such Grantor,
including, without limitation, the payment of required fees and
taxes, the filing of responses to office actions issued by the
U.S. Patent and Trademark Office, the U.S. Copyright Office or
other governmental authorities, the filing of applications for
renewal or extension, the filing of affidavits under Sections 8
and 15 of the U.S. Trademark Act, the filing of divisional,
continuation, continuation-in-part, reissue and renewal
applications or extensions, the payment of maintenance fees and
the participation in interference, reexamination, opposition,
cancellation, infringement and misappropriation proceedings. No
Grantor shall, without the written consent of the Collateral
Agent, discontinue use of or otherwise abandon any Intellectual
Property Collateral, or abandon any right to file an application
for letters patent, trademark, or copyright, unless such Grantor
shall have previously determined that such use or the pursuit or
maintenance of such Intellectual Property Collateral is no longer
desirable in the conduct of such Grantor's business and that the
loss thereof would not be reasonably likely to have a Material
Adverse Effect, in which case, such Grantor will give prompt
notice of any such abandonment to the Collateral Agent.
(b) Each Grantor agrees promptly to notify the Collateral Agent
if such Grantor learns (i) that any item of the Intellectual
Property Collateral may have become abandoned, placed in the
public domain, invalid or unenforceable, or of any adverse
determination or development regarding such Grantor's ownership
of any of the Intellectual Property Collateral or its right to
register the same or to keep and maintain and enforce the same,
or (ii) of any adverse determination or the institution of any
proceeding (including, without limitation, the institution of any
proceeding in the U.S. Patent and Trademark Office or any court)
regarding any item of the Intellectual Property Collateral.
(c) In the event that any Grantor becomes aware that any item of
the Intellectual Property Collateral is being infringed or
misappropriated by a third party, such Grantor shall promptly
notify the Collateral Agent and shall take such actions, at its
expense, as such Grantor or the Collateral Agent deems reasonable
and appropriate under the circumstances to protect such
Intellectual Property Collateral, including, without limitation,
suing for infringement or misappropriation and for an injunction
against such infringement or misappropriation.
(d) Each Grantor shall use proper statutory notice in connection
with its use of each item of its Intellectual Property
Collateral. No Grantor shall do or permit any act or knowingly
omit to do any act whereby any of its Intellectual Property
Collateral may lapse or become invalid or unenforceable or placed
in the public domain.
(e) Each Grantor shall take all steps which it or the Collateral
Agent deems reasonable and appropriate under the circumstances to
preserve and protect each item of its Intellectual Property
Collateral, including, without limitation, maintaining the
quality of any and all products or services used or provided in
connection with any of the Trademarks, consistent with the
quality of the products and services as of the date hereof, and
taking all steps necessary to ensure that all licensed users of
any of the Trademarks use such consistent standards of quality.
(f) With respect to its Intellectual Property Collateral, each
Grantor agrees to execute an agreement, in substantially the form
set forth in Exhibit F hereto (an "Intellectual Property Security
Agreement"), for recording the security interest granted
hereunder to the Collateral Agent in such Intellectual Property
Collateral with the U.S. Patent and Trademark Office, the U.S.
Copyright Office and any other governmental authorities necessary
to perfect the security interest hereunder in such Intellectual
Property Collateral.
(g) Each Grantor agrees that, should it obtain an ownership
interest in any item of the type set forth in Section 1(g) which
is not on the date hereof a part of the Intellectual Property
Collateral (the "After-Acquired Intellectual Property"), (i) the
provisions of Section 1 shall automatically apply thereto, (ii)
any such After-Acquired Intellectual Property and, in the case of
trademarks, the goodwill of the business connected therewith or
symbolized thereby, shall automatically become part of the
Intellectual Property Collateral subject to the terms and
conditions of this Agreement with respect thereto, (iii) such
Grantor shall give prompt written notice thereof to the
Collateral Agent in accordance herewith and (iv) such Grantor
shall execute and deliver to the Collateral Agent an IP Security
Agreement Supplement covering such After-Acquired Intellectual
Property as "Additional Collateral" thereunder and as defined
therein, and shall record such IP Security Agreement Supplement
with the U.S. Patent and Trademark Office, the U.S. Copyright
Office and any other governmental authorities necessary to
perfect the security interest hereunder in such After-Acquired
Intellectual Property.
ARTICLE 31 VOTING RIGHTS; DIVIDENDS; ETC
. SECTION 31.01 So long as no Default shall have
occurred and be continuing:
First: Each Grantor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Security
Collateral of such Grantor or any part thereof for any purpose
other than originate Entitlement Orders (as defined in any
Control Agreement) with respect to any securities account or
commodity account; provided however, that such Grantor will not
exercise or refrain from exercising any such right if such action
would have a material adverse effect on the value of the Security
Collateral or any part thereof.
Second: Each Grantor shall be entitled to receive and retain
any and all dividends, interest and other distributions paid in
respect of the Security Collateral of such Grantor if and to the
extent that the payment thereof is not otherwise prohibited by
the terms of the Loan Documents; provided, however, that any and
all
(A) dividends, interest and other distributions
paid or payable other than in cash in respect of, and
instruments and other property received, receivable or
otherwise distributed in respect of, or in exchange
for, any Security Collateral,
(B) dividends and other distributions paid or
payable in cash in respect of any Security Collateral
in connection with a partial or total liquidation or
dissolution or in connection with a reduction of
capital, capital surplus or paid-in-surplus and
(C) cash paid, payable or otherwise distributed
in respect of principal of, or in redemption of, or in
exchange for, any Security Collateral
shall be, and shall be forthwith delivered to the Collateral
Agent to hold as, Security Collateral and shall, if received
by such Grantor, be received in trust for the benefit of the
Collateral Agent, be segregated from the other property or
funds of such Grantor and be forthwith delivered to the
Collateral Agent as Security Collateral in the same form as
so received (with any necessary endorsement).
Third: The Collateral Agent will execute and deliver (or cause
to be executed and delivered) to each Grantor all such proxies
and other instruments as such Grantor may reasonably request for
the purpose of enabling such Grantor to exercise the voting and
other rights that it is entitled to exercise pursuant to
paragraph (i) above and to receive the dividends or interest
payments that it is authorized to receive and retain pursuant to
paragraph (ii) above.
SECTION 31.02 Upon the occurrence and during the continuance of
a Default:
(i) All rights of each Grantor (x) to exercise or refrain from
exercising the voting and other consensual rights that it would
otherwise be entitled to exercise pursuant to Section 16(a)(i)
shall, upon notice to such Grantor by the Collateral Agent, cease
and (y) to receive the dividends, interest and other
distributions that it would otherwise be authorized to receive
and retain pursuant to Section 16(a)(ii) shall automatically
cease, and all such rights shall thereupon become vested in the
Collateral Agent, which shall thereupon have the sole right to
exercise or refrain from exercising such voting and other
consensual rights and to receive and hold as Security Collateral
such dividends, interest and other distributions.
(ii) All dividends, interest and other distributions that are
received by any Grantor contrary to the provisions of paragraph
(i) of this Section 16(b) shall be received in trust for the
benefit of the Collateral Agent, shall be segregated from other
funds of such Grantor and shall be forthwith paid over to the
Collateral Agent as Security Collateral in the same form as so
received (with any necessary endorsement).
(iii) The Collateral Agent shall be authorized to send to
each Securities Intermediary or Commodity Intermediary as defined
in and under any Control Agreement a Notice of Exclusive Control
as defined in and under such Control Agreement.
ARTICLE 32 AS TO THE ASSIGNED AGREEMENTS
. (a) Each Grantor will at its expense:
(i) perform and observe all terms and provisions of the Assigned
Agreements to be performed or observed by it, maintain the
Assigned Agreements to which it is a party in full force and
effect, enforce the Assigned Agreements to which it is a party in
accordance with the terms thereof and take all such action to
such end as may be requested from time to time by the Collateral
Agent; and
(ii) furnish to the Collateral Agent promptly upon receipt
thereof copies of all notices, requests and other documents
received by such Grantor under or pursuant to the Assigned
Agreements to which it is a party, and from time to time
(A) furnish to the Collateral Agent such information and reports
regarding the Assigned Agreements and such other Collateral of
such Grantor as the Collateral Agent may reasonably request and
(B) upon request of the Collateral Agent make to each other party
to any Assigned Agreement to which it is a party such demands and
requests for information and reports or for action as such
Grantor is entitled to make thereunder.
SECTION 32.02 Each Grantor agrees that it will not, except to
the extent otherwise permitted under the Credit Agreement:
(i) cancel or terminate any Assigned Agreement to which it is a
party or consent to or accept any cancellation or termination
thereof;
(ii) amend, amend and restate, supplement or otherwise modify any
such Assigned Agreement or give any consent, waiver or approval
thereunder;
(iii) waive any default under or breach of any such Assigned
Agreement; or
(iv) take any other action in connection with any such Assigned
Agreement that would materially impair the value of the interests
or rights of such Grantor thereunder or that would materially
impair the interests or rights of any Secured Party.
SECTION 32.03 Each Grantor hereby consents on its behalf and on
behalf of its Subsidiaries to the assignment and pledge to the
Collateral Agent for benefit of the Secured Parties of each
Assigned Agreement to which it is a party by any other Grantor
hereunder.
ARTICLE 33 PAYMENTS UNDER THE ASSIGNED AGREEMENTS
. (a) Each Grantor agrees, and has effectively so
instructed each other party to each Assigned Agreement to which
it is a party, that all payments due or to become due under or in
connection with such Assigned Agreement will be made directly to
the Cash Concentration Account.
(b) All moneys received or collected pursuant to subsection (a)
above shall be (i) released to the applicable Grantor on the
terms set forth in Section 9 so long as no Default shall have
occurred and be continuing or (ii) if any Default shall have
occurred and be continuing, applied as provided in Section 23(b).
ARTICLE 34 TRANSFERS AND OTHER LIENS; ADDITIONAL SHARES
. (a) Each Grantor agrees that it will not (i) sell,
assign or otherwise dispose of, or grant any option with respect
to, any of the Collateral, other than sales, assignments and
other dispositions of Collateral, and options relating to
Collateral, permitted under the terms of the Credit Agreement, or
(ii) create or suffer to exist any Lien upon or with respect to
any of the Collateral of such Grantor except for the pledge,
assignment and security interest created under this Agreement and
Liens permitted under the Credit Agreement.
(b) Each Grantor agrees that it will (i) cause each issuer of
the Pledged Shares pledged by such Grantor not to issue any stock
or other securities in addition to or in substitution for the
Pledged Shares issued by such issuer, except to such Grantor, and
(ii) pledge hereunder, immediately upon its acquisition (directly
or indirectly) thereof, any and all additional shares of stock or
other securities of each issuer of the Pledged Shares.
ARTICLE 35 COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT
. Each Grantor hereby irrevocably appoints the
Collateral Agent such Grantor's attorney-in-fact, with full
authority in the place and stead of such Grantor and in the name
of such Grantor or otherwise, from time to time in the Collateral
Agent's discretion, to take any action and to execute any
instrument that the Collateral Agent may deem necessary or
advisable to accomplish the purposes of this Agreement,
including, without limitation:
(d) to obtain and adjust insurance required to be paid to the
Collateral Agent pursuant to Section 13,
SECTION 35.01 to ask for, demand, collect, sue for, recover,
compromise, receive and give acquittance and receipts for moneys
due and to become due under or in respect of any of the
Collateral,
SECTION 35.02 to receive, indorse and collect any drafts or
other instruments, documents and chattel paper, in connection
with clause (a) or (b) above, and
SECTION 35.03 to file any claims or take any action or institute
any proceedings that the Collateral Agent may deem necessary or
desirable for the collection of any of the Collateral or
otherwise to enforce compliance with the terms and conditions of
any Assigned Agreement or the rights of the Collateral Agent with
respect to any of the Collateral.
ARTICLE 36 COLLATERAL AGENT MAY PERFORM
. If any Grantor fails to perform any agreement
contained herein, the Collateral Agent may, as the Collateral
Agent deems necessary to protect the security interest granted
hereunder in the Collateral or to protect the value thereof, but
without any obligation to do so and without notice, itself
perform, or cause performance of, such agreement, and the
expenses of the Collateral Agent incurred in connection therewith
shall be payable by such Grantor under Section 24(b).
ARTICLE 37 THE COLLATERAL AGENT'S DUTIES
. (a) The powers conferred on the Collateral Agent
hereunder are solely to protect the Secured Parties' interest in
the Collateral and shall not impose any duty upon it to exercise
any such powers. Except for the safe custody of any Collateral
in its possession and the accounting for moneys actually received
by it hereunder, the Collateral Agent shall have no duty as to
any Collateral, as to ascertaining or taking action with respect
to calls, conversions, exchanges, maturities, tenders or other
matters relative to any Collateral, whether or not any Secured
Party has or is deemed to have knowledge of such matters, or as
to the taking of any necessary steps to preserve rights against
any parties or any other rights pertaining to any Collateral.
The Collateral Agent shall be deemed to have exercised reasonable
care in the custody and preservation of any Collateral in its
possession if such Collateral is accorded treatment substantially
equal to that which it accords its own property.
(b) Anything contained herein to the contrary notwithstanding,
the Collateral Agent may from time to time, when the Collateral
Agent deems it to be necessary, appoint one or more subagents
(each a "Subagent") for the Collateral Agent hereunder with
respect to all or any part of the Collateral. In the event that
the Collateral Agent so appoints any Subagent with respect to any
Collateral, (i) the assignment and pledge of such Collateral and
the security interest granted in such Collateral by each Grantor
hereunder shall be deemed for purposes of this Security Agreement
to have been made to such Subagent, in addition to the Collateral
Agent, for the ratable benefit of the Secured Parties, as
security for the Secured Obligations of such Grantor, (ii) such
Subagent shall automatically be vested, in addition to the
Collateral Agent, with all rights, powers, privileges, interests
and remedies of the Collateral Agent hereunder with respect to
such Collateral, and (iii) the term "Collateral Agent," when used
herein in relation to any rights, powers, privileges, interests
and remedies of the Collateral Agent with respect to such
Collateral, shall include such Subagent; provided, however, that
no such Subagent shall be authorized to take any action with
respect to any such Collateral unless and except to the extent
expressly authorized in writing by the Collateral Agent.
ARTICLE 38 REMEDIES
. If any Event of Default shall have occurred and be
continuing:
(e) The Collateral Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for
herein, under the Interim Order or the Final Order, as
applicable, or otherwise available to it, all the rights and
remedies of a secured party upon default under the N.Y. Uniform
Commercial Code (whether or not the N.Y. Uniform Commercial Code
applies to the affected Collateral) and also may: (i) require
each Grantor to, and each Grantor hereby agrees that it will at
its expense and upon request of the Collateral Agent forthwith,
assemble all or part of the Collateral as directed by the
Collateral Agent and make it available to the Collateral Agent at
a place and time to be designated by the Collateral Agent that is
reasonably convenient to both parties; (ii) without notice except
as specified below, sell the Collateral or any part thereof in
one or more parcels at public or private sale, at any of the
Collateral Agent's offices or elsewhere, for cash, on credit or
for future delivery, and upon such other terms as the Collateral
Agent may deem commercially reasonable; (iii) occupy any premises
owned or leased by any of the Grantors where the Collateral or
any part thereof is assembled or located for a reasonable period
in order to effectuate its rights and remedies hereunder or under
law, without obligation to such Grantor in respect of such
occupation; and (iv) exercise any and all rights and remedies of
any of the Grantors under or in connection with the Assigned
Agreements, the Receivables and the Related Contracts or
otherwise in respect of the Collateral, including, without
limitation, any and all rights of such Grantor to demand or
otherwise require payment of any amount under, or performance of
any provision of, the Assigned Agreements, the Receivables and
the Related Contracts. Each Grantor agrees that, to the extent
notice of sale shall be required by law, at least ten days'
notice to such Grantor of the time and place of any public sale
or the time after which any private sale is to be made shall
constitute reasonable notification. The Collateral Agent shall
not be obligated to make any sale of Collateral regardless of
notice of sale having been given. The Collateral Agent may
adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale
may, without further notice, be made at the time and place to
which it was so adjourned. To the extent that any rights and
remedies under this Section 23 would otherwise be in violation of
the automatic stay of section 362 of the Bankruptcy Code, such
stay shall be deemed modified, as set forth in the Interim Order
or Final Order, as applicable, to the extent necessary to permit
the Collateral Agent to exercise such rights and remedies.
SECTION 38.01 Any cash held by or on behalf of the Collateral
Agent and all cash proceeds received by or on behalf of the
Collateral Agent in respect of any sale of, collection from, or
other realization upon all or any part of the Collateral may, in
the discretion of the Collateral Agent, be held by the Collateral
Agent as collateral for, and/or then or at any time thereafter
applied (after payment of any amounts payable to the Collateral
Agent pursuant to Section 24) in whole or in part by the
Collateral Agent for the ratable benefit of the Secured Parties
against, all or any part of the Secured Obligations, in the
following manner:
(i) first, to the Agents for any amounts owing to the Agents
pursuant to Section 9.04 of the Credit Agreement or otherwise
under the Loan Documents, ratably in accordance with such
respective amounts then owing to the Agents;
(ii) second, deposited as Collateral in the L/C Collateral
Account up to an amount equal to 100% of the aggregate Available
Amount of all outstanding Letters of Credit, provided that in the
event that any such Letter of Credit is drawn, the Collateral
Agent shall pay to the Issuing Bank that issued such Letter of
Credit the amount held in the L/C Collateral Account in respect
of such Letter of Credit, provided further that, to the extent
that any such Letter of Credit shall expire or terminate undrawn
and as a result thereof the amount of the Collateral in the L/C
Collateral Account shall exceed the aggregate Available Amount of
all then outstanding Letters of Credit, such excess amount of
such Collateral shall be applied in accordance with the order of
priority set out in this Section 23(b);
(iii) third, to the Issuing Bank and the Swing Line Bank for
any amounts then owing to them, in their capacities as such,
under the Loan Documents ratably in accordance with such
respective amounts then owing to the Issuing Bank and the Swing
Line Bank;
(iv) fourth, Working Capital Lenders for any amount then owing to
them, in their capacities as such, under the Loan Documents
ratably in accordance with such respective amounts then owing to
the Working Capital Lenders; and
(v) fifth, Term Lenders for any amount then owing
to them, in their capacities as such, under the Loan
Documents ratably in accordance with such respective
amounts then owing to the Term Lenders.
Any surplus of such cash or cash proceeds held by or on the
behalf of the Collateral Agent and remaining after payment
in full of all the Secured Obligations shall be paid over to
the applicable Grantor or to whomsoever may be lawfully
entitled to receive such surplus.
SECTION 38.02 All payments received by any Grantor under or in
connection with any Assigned Agreement or otherwise in respect of
the Collateral shall be received in trust for the benefit of the
Collateral Agent, shall be segregated from other funds of such
Grantor and shall be forthwith paid over to the Collateral Agent
in the same form as so received (with any necessary endorsement).
SECTION 38.03 The Collateral Agent may, without notice to any
Grantor except as required by law and at any time or from time to
time, charge, set-off and otherwise apply all or any part of the
Secured Obligations against any funds held in the Cash
Concentration Account, the Collateral Account or the L/C
Collateral Account or in any deposit account related thereto.
SECTION 38.04 In the event of any sale or other disposition of
any of the Intellectual Property Collateral of any Grantor, the
goodwill of the business connected with and symbolized by any
Trademarks subject to such sale or other disposition shall be
included therein, and such Grantor shall supply to the Collateral
Agent or its designee such Grantor's know-how and expertise, and
documents and things relating to any Intellectual Property
Collateral subject to such sale or other disposition, and such
Grantor's customer lists and other records and documents relating
to such Intellectual Property Collateral and to the manufacture,
distribution, advertising and sale of products and services of
such Grantor.
SECTION 38.05 If the Collateral Agent shall determine to
exercise its right to sell all or any of the Security Collateral
of any Grantor pursuant to this Section 23, each Grantor agrees
that, upon request of the Collateral Agent, such Grantor will, at
its own expense:
(i) execute and deliver, and cause each issuer of such Security
Collateral contemplated to be sold and the directors and officers
thereof to execute and deliver, all such instruments and
documents, and do or cause to be done all such other acts and
things, as may be necessary or, in the opinion of the Collateral
Agent, advisable to register such Security Collateral under the
provisions of the Securities Act of 1933 (as amended from time to
time, the "Securities Act"), to cause the registration statement
relating thereto to become effective and to remain effective for
such period as prospectuses are required by law to be furnished
and to make all amendments and supplements thereto and to the
related prospectus that, in the opinion of the Collateral Agent,
are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations
of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to qualify the Security Collateral
under the state securities or "Blue Sky" laws and to obtain all
necessary governmental approvals for the sale of such Security
Collateral, as requested by the Collateral Agent;
(iii) cause each such issuer of such Security Collateral to
make available to its security holders, as soon as practicable,
an earnings statement that will satisfy the provisions of
Section 11(a) of the Securities Act;
(iv) provide the Collateral Agent with such other information and
projections as may be necessary or, in the opinion of the
Collateral Agent, advisable to enable the Collateral Agent to
effect the sale of such Security Collateral; and
(v) do or cause to be done all such other acts and things as may
be necessary to make such sale of such Security Collateral or any
part thereof valid and binding and in compliance with applicable
law.
SECTION 38.06 The Collateral Agent is authorized, in connection
with any sale of the Security Collateral pursuant to this Section
23, to deliver or otherwise disclose to any prospective purchaser
of the Security Collateral: (i) any registration statement or
prospectus, and all supplements and amendments thereto, prepared
pursuant to subsection (f)(i) above; (ii) any information and
projections provided to it pursuant to subsection (f)(iv) above;
and (iii) any other information in its possession relating to
such Security Collateral.
SECTION 38.07 Each Grantor acknowledges the impossibility of
ascertaining the amount of damages that would be suffered by the
Secured Parties by reason of the failure by such Grantor to
perform any of the covenants contained in subsection (f) above
and, consequently, agrees that, if such Grantor shall fail to
perform any of such covenants, it will pay, as liquidated damages
and not as a penalty, an amount equal to the value of the
Security Collateral on the date the Collateral Agent shall demand
compliance with subsection (f) above.
ARTICLE 39 INDEMNITY AND EXPENSES
. (a) Each Grantor agrees to indemnify, defend and
save and hold harmless each Secured Party and each of their
Affiliates and their respective officers, directors, employees,
agents and advisors (each, an "Indemnified Party") from and
against, and shall pay on demand, any and all claims, damages,
losses, liabilities and expenses (including, without limitation,
reasonable fees and expenses of counsel) that may be incurred by
or asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or resulting from this
Agreement (including, without limitation, enforcement of this
Agreement), except to the extent such claim, damage, loss,
liability or expense is found in a final, non-appealable judgment
by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct.
(b) Each Grantor will upon demand pay to the Collateral Agent
the amount of any and all reasonable expenses, including, without
limitation, the reasonable fees and expenses of its counsel and
of any experts and agents, that the Collateral Agent may incur in
connection with (i) the administration of this Agreement,
(ii) the custody, preservation, use or operation of, or the sale
of, collection from or other realization upon, any of the
Collateral of such Grantor, (iii) the exercise or enforcement of
any of the rights of the Collateral Agent or the other Secured
Parties hereunder or (iv) the failure by such Grantor to perform
or observe any of the provisions hereof.
ARTICLE 40 AMENDMENTS; WAIVERS; ADDITIONAL GRANTORS; ETC
. (a) No amendment or waiver of any provision of this
Agreement, and no consent to any departure by any Grantor
herefrom, shall in any event be effective unless the same shall
be in writing and signed by the Collateral Agent, and then such
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. No
failure on the part of the Collateral Agent or any other Secured
Party to exercise, and no delay in exercising any right
hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other
or further exercise thereof or the exercise of any other right.
(b) Upon the execution and delivery by any Person of a security
agreement supplement in substantially the form of Exhibit A
hereto (each a "Security Agreement Supplement"), (i) such Person
shall be referred to as an "Additional Grantor" and shall be and
become a Grantor hereunder and each reference in this Agreement
and the other Loan Documents to "Grantor" shall also mean and be
a reference to such Additional Grantor, and (ii) the supplemental
schedules I, II, III, IV, V, VI and VII attached to each Security
Agreement Supplement shall be incorporated into and become a part
of and supplement Schedules I, II, III, IV, V, VI and VII,
respectively, hereto, and the Collateral Agent may attach such
supplemental schedules to such Schedules; and each reference to
such Schedules shall mean and be a reference to such Schedules as
supplemented pursuant to each Security Agreement Supplement.
ARTICLE 41 NOTICES; ETC
. All notices and other communications provided for
hereunder shall be in writing (including telegraphic, telecopier
or telex communication) and mailed, telegraphed, telecopied,
telexed or delivered to, in the case of the Borrower, the Parent
Guarantor or the Collateral Agent, addressed to it at its address
specified in the Credit Agreement and, in the case of each
Grantor other than the Borrower and the Parent Guarantor,
addressed to it at its address set forth opposite such Grantor's
name on the signature pages hereto or on the signature page to
the Security Agreement Supplement pursuant to which it became a
party hereto; or, as to any party, at such other address as shall
be designated by such party in a written notice to the other
parties. All such notices and other communications shall, when
mailed, telegraphed, telecopied or telexed, be effective when
deposited in the mails, delivered to the telegraph company,
telecopied or confirmed by telex answerback, respectively,
addressed as aforesaid; except that notices and other
communications to the Collateral Agent shall not be effective
until received by the Collateral Agent. Delivery by telecopier
of an executed counterpart of any amendment or waiver of any
provision of this Agreement or of any Security Agreement
Supplement or Schedule hereto shall be effective as delivery of
an original executed counterpart thereof.
ARTICLE 42 CONTINUING SECURITY INTEREST; ASSIGNMENTS UNDER
THE CREDIT AGREEMENT
. This Agreement and the Interim Order or the Final
Order, as applicable, shall create a continuing security interest
in the Collateral and shall (a) remain in full force and effect
until the latest of (i) the payment in full in cash of the
Secured Obligations, (ii) the Termination Date and (iii) the
termination or expiration of all Letters of Credit, (b) be
binding upon each Grantor, its successors and assigns and
(c) inure, together with the rights and remedies of the
Collateral Agent hereunder, to the benefit of the Secured Parties
and their respective successors, transferees and assigns.
Without limiting the generality of the foregoing clause (c), any
Lender Party may assign or otherwise transfer all or any portion
of its rights and obligations under the Credit Agreement
(including, without limitation, all or any portion of its
Commitments, the Advances owing to it and the Note or Notes, if
any, held by it) to any other Person, and such other Person shall
thereupon become vested with all the benefits in respect thereof
granted to such Lender Party herein or otherwise, in each case as
provided in Section 9.07 of the Credit Agreement.
ARTICLE 43 RELEASE; TERMINATION
. (a) Upon any sale, lease, transfer or other
disposition of any item of Collateral of any Grantor in
accordance with the terms of the Loan Documents (other than sales
of Inventory in the ordinary course of business), the Collateral
Agent will, at such Grantor's expense, execute and deliver to
such Grantor such documents as such Grantor shall reasonably
request to evidence the release of such item of Collateral from
the assignment and security interest granted hereby; provided,
however, that (i) at the time of such request and such release no
Default shall have occurred and be continuing, (ii) such Grantor
shall have delivered to the Collateral Agent, at least ten
Business Days prior to the date of the proposed release, a
written request for release describing the item of Collateral and
the terms of the sale, lease, transfer or other disposition in
reasonable detail, including, without limitation, the price
thereof and any expenses in connection therewith, together with a
form of release for execution by the Collateral Agent and a
certificate of such Grantor to the effect that the transaction is
in compliance with the Loan Documents and as to such other
matters as the Collateral Agent may request and (iii) the
proceeds of any such sale, lease, transfer or other disposition
required to be applied, or any payment to be made in connection
therewith, in accordance with Section 2.06 of the Credit
Agreement shall, to the extent so required, be paid or made to,
or in accordance with the instructions of, the Collateral Agent
when and as required under Section 2.06 of the Credit Agreement.
(b) Upon the latest of (i) the payment in full in cash of the
Secured Obligations (except in respect of indemnification that
survives repayment of the indebtedness), (ii) the Termination
Date and (iii) the termination or expiration of all Letters of
Credit, the pledge, assignment and security interest granted
hereby shall terminate and all rights to the Collateral shall
revert to the applicable Grantor. Upon any such termination, the
Collateral Agent will, at the applicable Grantor's expense,
execute and deliver to such Grantor such documents as such
Grantor shall reasonably request to evidence such termination.
ARTICLE 44 EXECUTION IN COUNTERPARTS
. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement. Delivery of an executed counterpart
of a signature page to this Agreement by telecopier shall be
effective as delivery of an original executed counterpart of this
Agreement.
ARTICLE 45 THE MORTGAGES
. In the event that any of the Collateral hereunder is
also subject to a valid and enforceable Lien under the terms of
any Mortgage and the terms of such Mortgage are inconsistent with
the terms of this Agreement, then with respect to such
Collateral, the terms of such Mortgage shall be controlling in
the case of fixtures and real estate leases, letting and licenses
of, and contracts and agreements relating to the lease of, real
property, and the terms of this Agreement shall be controlling in
the case of all other Collateral.
ARTICLE 46 CREDIT AGREEMENT CONTROLS. IN THE EVENT THAT
THERE IS ANY INCONSISTENCY BETWEEN THIS AGREEMENT AND THE CREDIT
AGREEMENT, SUCH INCONSISTENCY SHALL BE RESOLVED IN FAVOR OF THE
CREDIT AGREEMENT.
ARTICLE 47 GOVERNING LAW
. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York and, to the
extent applicable, the Bankruptcy Code.
IN WITNESS WHEREOF, each Grantor has caused this
Agreement to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above written.
SPECIALTY RETAILERS, INC.
By /s/ John Wiesner
Title: Chief Executive
Officer
Address for Notices:
10201 Main Street, Houston,
TX 77025
STAGE STORES, INC.
By /s/ John Wiesner
Title: Chief Executive
Officer
Address for Notices:
10201 Main Street, Houston,
TX 77025
SPECIALTY RETAILERS, INC. (NV)
By /s/ John Wiesner
Title: Agent
Address for Notices:
10201 Main Street, Houston,
TX 77025
SCHEDULES
TO THAT CERTAIN SECURITY AGREEMENT
DATED AS OF JUNE 2, 2000
FROM
STAGE STORES, INC., A DELAWARE CORPORATION,
SPECIALTY RETAILERS, INC., A TEXAS CORPORATION, AND
SPECIALITY RETAILERS, INC. (NV), A NEVADA CORPORATION,
AS GRANTORS
TO
CITICORP USA, INC.,
AS COLLATERAL AGENT
Note: The information set forth in the following Schedules is
cumulative in effect such that information set forth on one
Schedule will be deemed, where appropriate, to have been set
forth on each and every of the following Schedules, whether
or not specifically set forth therein. Any capitalized term
not otherwise expressly defined in the following Schedules
shall have the meaning assigned to such term in that certain
Security Agreement dated as of June 2, 2000 from Stage
Stores, Inc., Specialty Retailers, Inc., and Specialty
Retailers, Inc. (NV), as Grantors, to Citicorp USA, Inc., as
Collateral Agent (the "Security Agreement") or, if such term
is not defined in the Security Agreement, then such term
shall have the meaning assigned to such term in that certain
Debtor-in-Possession Credit Agreement dated as of June 2,
2000 among Specialty Retailers, Inc., as Borrower, Stage
Stores, Inc., as Parent Guarantor, Citibank, as Initial
Lender, as Initial Issuing Bank, and as Swing Line Bank,
Citicorp USA, Inc., as Collateral Agent, and Citicorp USA,
Inc., as Administrative Agent (the "Credit Agreement").
Schedule I
to the
Security Agreement
PLEDGED SHARES AND PLEDGED DEBT
Part I
Par Stock Number % of
Grantor Stock Class of Valu Certificat of Outstanding
Issuer Stock e e No(s) Shares Shares
SSI SRI Common $0.0 5,000 100%
1
SRI SRI (NV) Common $0.0 1,000 100%
1
SRI SRIRPC Common $0.0 3 1,000 100%
1
Part II
Outstand
Grantor Debt Descripti Debt Final ing
Issuer on Certificate Maturity Principa
No(s). l Amount
SRI (NV) SRI Loan - 9% n/a Open 191,867,5
Interest 27.74
SRI SRIRPC Intercompa n/a Open 19,765,44
y 1.16
payable/re
ceivable
SSI SRI (NV) Intercompa n/a Open 59,637.00
y
payable/re
ceivable
SRI Carl Loan n/a 04/15/1998
Tooker 140,000.0
0
SRI Carl Loan n/a 04/15/1998
Tooker 203,200.0
0
SRI Carl Loan n/a 07/15/1999
Tooker 175,000.0
0
SRI Carl Loan n/a 09/15/1999
Tooker 125,000.0
0
SRI Carl Loan n/a 04/14/2000
Tooker 200,000.0
0
SRI Carl Loan n/a 11/03/2000
Tooker 200,000.0
0
SRI Stephen Loan n/a 06/01/2000
Lovell 150,000.0
0
SRI Stephen Loan n/a 04/01/1999
Lovell 125,000.0
0
SRI Stephen Loan n/a 02/27/1999
Lovell 142,679.0
0
SRI Stephen Loan n/a 04/14/2000
Lovell 25,000.00
SRI Stephen Loan n/a 10/06/2000
Lovell 20,000.00
SRI Stephen Loan n/a 11/03/2000
Lovell 71,814.59
SRI Ron Loan n/a 04/29/1999
Lucas 377,194.6
1
SRI Ron Loan n/a 04/14/2000
Lucas 145,000.0
0
SRI Ron Loan n/a 11/03/2000
Lucas 107,298.0
0
SRI Tom Loan n/a 11/15/2001
Buttacci 8,427.86
o
SRI B. Loan n/a Demand
Locklear 33,172.26
SRI Jonathan Loan n/a Demand
Pike 20,000.00
SRI Bruce Relocation n/a Demand
Harsha Advance 4,000.00
SRI Charles Bonus n/a Demand
Sledge Advance 31,000.00
Total $213,996,
392.22
Schedule II to the
Security Agreement
ASSIGNED AGREEMENTS
None.
Schedule III to the
Security Agreement
LOCATIONS OF EQUIPMENT AND INVENTORY
See Schedules 4.01(u) and 4.01(v) to the Credit Agreement.
Schedule IV to the
Security Agreement
CHIEF EXECUTIVE OFFICE
AND FEDERAL TAX IDENTIFICATION NUMBER
Federal Tax
Grantor Chief Executive Identification
Office Number
Stage Stores, Inc. 10201 Main Street 76-0407711
Houston, TX 77025
Specialty Retailers, 10201 Main Street 74-0821900
Inc. Houston, TX 77025
Specialty Retailers, 2101 Broadway 91-1826900
Inc. (NV) Yankton, SD 57078
Schedule V to the
Security Agreement
PATENTS, TRADEMARKS AND
TRADE NAMES, COPYRIGHTS AND LICENSES
Patents:
None
Trademarks:
See Schedule 4.01(x) to the Credit Agreement.
Copyrights:
None
Licensed Patents, Trademarks, Copyrights, Trade Secrets or
Computer Software:
1. Agreement between Stages Stores, Inc. and TSI Tailored
Systems, Inc.
2. Agreement between Specialty Retailers, Inc. and Equinox
Industries, Inc.
3. License of Veritas software in connection with Computer
Equipment Rental by Specialty Retailers, Inc. from General
Electric Capital Corporation.
4. Equipment and Services Agreement between Hughes Network
Services Agreement and Specialty Retailers, Inc.
5. Agreement between Real Applications, Inc. and Specialty
Retailers, Inc.
6. Three Year Agreement for Purchase of hardware and Support
and Licensing of Software between Price Waterhouse Systems
Integration LLC and Specialty Retailers, Inc.
7. Master Product License Agreement between Platinum
Technology, Inc. and Specialty Retailers, Inc.
8. Term Software License Agreement between Sterling Commerce
(Mid America), Inc. and Specialty Retailers, Inc.
9. Agreement between IMR Global and Stage Stores, Inc.
10. Master Services Agreement between Information Management
Resources, Inc. and Specialty Retailers, Inc.
11. Agreement between Sequent Computer Systems, Inc. and Stage
Stores, Inc.
12. Agreement between Computer Associates International, Inc.
and Specialty Retailers, Inc.
13. Retek Software License Agreement between Retek Information
Systems, Inc. and Specialty Retailers, Inc.
14. XBR Track Software License Agreement 728 between the XBR
Company and Specialty Retailers, Inc.
15. Consolidated Agreement between Unisys and Specialty
Retailers, Inc.
16. Master Equipment Service and Software Support Agreement
between Bell & Howell Mail and Messaging Technologies Company and
Specialty Retailers, Inc.
17. License granted under that certain Amended and Restated
Security Agreement dated as of March 6, 2000, between Specialty
Retailers, Inc., Stage Stores, Inc. Specialty Retailers, Inc.
(NV), the Additional Assignors (as defined therein), and Credit
Suisse First Boston, as collateral agent (which agreement is
subject to the Interim Order.
Schedule VI to the
Security Agreement
PLEDGED ACCOUNTS
SRI is the record or beneficial owner of each of the following
accounts:
Name and Address of Mailing Address of
Pledged Account Bank Lockbox Account
Number
Bank of America, N.A. To be determined 68806801
P.O. Box 830175
Dallas, TX 75283-
0175
Bank of America, N.A. To be determined 3750073614
P.O. Box 830175
Dallas, TX 75283-
0175
Norwest Bank, N.A. To be determined 9440102416
6th and Marquette
Minneapolis, MN 55479
Bank One, Texas, N.A. To be determined 1883803387
P.O. Box 92102
Bedford, TX 76095-
2102
Chase Bank of Texas, To be determined 101360700
N.A.
P.O. Box 250
Arlington, TX 76004-
0250
Hibernia To be determined 812460587
P.O. Box 61540
New Orleans, LA 75766
Bank of Oklahoma, To be determined 208317344
N.A.
P.O. Box 2300
Tulsa, OK 74192
Regions To be determined 8010189552
P.O. Box 21116
Shreveport, LA 71154-
0001
Fifth Third To be determined 99942689
38 Fountain Square
Plaza
Cincinnati, OH 45263-
0900
BancFirst To be determined 0091097143
101 N. Broadway
Oklahoma City, OK
73102
US Bank To be determined 153690437261
918 17th Street
Denver, CO 68025-5068
Bank One, Arizona, To be determined 13548956
N.A.
P.O. Box 71
Phoenix, AZ 85001
ADDITIONAL PLEDGED ACCOUNTS
SRI is the record or beneficial owner of each of the
following accounts.
BANK NAME AND ADDRESS ACCT #
1st Mid-Illinois Bank & Trust 223026353
100 West Washington
Monticello, IL 61856
Alpine Bank 1010026425
400 7th Street South, Suite 3300
Rifle, CO 81650
Amarillo National Bank 60542
P.O. Box 1
Amarillo, TX 79105-001
AmCore 148216
1625 10th Street
Monroe, WI 53566-0098
American Bank & Trust 169722
P.O. Box 1579
Opelousa, LA 70570-1579
American Heritage Bank 1003688
P.O. Box 1109
El Reno, OK 73036
American National 0057729
102 W. Moore
Terrell, TX 75160-3129
American National Bank & Trust 121442
P.O. Box 1408
Sapulpa, OK 74067
American National Bank of TX 2300017269
Route 11901519
Terrell, TX 75160-0040
American State Bank 5007204
P.O. Box 1401
Lubbock, TX 79408
Anadarko Bank & Trust 5290016845
P.O. Box 667
Anadarko, OK 73005-2300
Austin County Bank 5200025917
P.O. Box 68
Belville, TX 77418
Bancorp South 60275005
2910 West Jackson Street
Tupelo, MS 38801
Bank Midwest 8101100319
345 S. Washington
Chillicothe, MO 64601
Bank of Commerce 50900506
P.O. Box 246
Crowley, LA 70527-0246
Bank of Crocker 242691
P.O. Box 6000
Waynesville, MO 65583
Bank of Cushing 31419774
224 E. Broadway
Cushing, OK 74023-3336
Bank of Holden 3000768
410 E. Business 50 Hwy.
Warrensburg, MO 64093
Bank of Kirkville 3697
214 S. Franklin
P.O. Box 787
Kirksville, MO 63501-0787
Bank of Richmondville 389734
East Main Street
Cobleskill, NY 12043
Bank of Western Oklahoma 2895
P.O. Box 507
Elk City, OK 73648
BankCorp South 60275005
609 W. Main Street
West Point, MS 399773-2725
Bluestem National Bank 10774
104 E. Locust
Fairbury, IL 61739
Bonham State Bank 3031586
P.O. Box 609
Bonham, TX 75418
Campbell & Fetter Bank 893024
126 S. Orchard Street
P.O. Box 231
Kendallville, IN 46755-0231
Carlinville National Bank 185951
P.O. Box 350
Carlinville, IL 62626
Cedar Creek 13471608
210 Highway 334 Seven Points
Gun Barrel City, TX 75143
Central National Bank 1882155
P.O. Box 700
Junction City, KS66441
Central National Bank 112138
P.O. Box 667
Alva, OK 73717
Central National Bank 1161207
P.O. Box 667
Alva, OK 73717
Central National Bank 212288
P.O. Box 340
Poteau, OK 74953
Chemung Canal Trust Company 143030841
410 West Morris Street
Bath, NY 14810
Chickasha Bank & Trust 107001
1924 S. Fourth Street
Chickasha, OK 73023
Citizen State Bank 78227001
1238 Broad Street
New Castle, IN 47362-4986
Citizens Bank 238007
P.O. Box 151
Center, TX 75935
Citizens Bank 146522
P.O. Box 717
Waxahachie, TX 75168-0717
Citizens Bank 1119966
P.O. Box 598
Ville Platte, LA 70586
Citizens Bank 108235
P.O. Box 727
Slaton, TX 79364
Citizens Bank & Trust 000175
101 E. 6th Street
Okmulgee, OK 74447
Citizen's Bank & Trust 105262
P.O. Box 659
Plaquemine, LA 70765
Citizens Bank of Ardmore 609919
P.O. Box 1689
1100 N. Commerce
Ardmore, OK 73402
Citizens National Bank 146522
P.O. Box 717
Waxahachie, TX 75168
Citizens State Bank of Cortez 22987301
P.O. Box T
Cortez, CO 81321
City National Bank 0001961
1133 Mockingbird Lane
Sulphur Springs, TX 75482
City National Bank 8648
P.O. Drawer 1100
Welasco, TX 78599-1100
City National Bank 154610
116 S. Blossom
Shenandoah, IA 51601
City National Bank 1579201
228 Elm Street
Colorado City, TX 79512
City State Bank 11029
P.O. Box 231
Fort Scott, KS 66701
Civatas Bank 3660068212
112 E. 3rd Street
Mt. Vernon, IN 47620-1887
Colorado East Bank and Trust 232071901
520 S. Main
Lamar, CO 81052
Columbia River Banking 0102006468
420 E. 3rd Street
The City of the Dalles, OR
97058
Commercial National Bank 104851
P.O. Box 591
Brady, TX 76825
Community Bank 20443
P.O. Box 1027
Sedalia, MO 65301
Community Bank 3140607509
150 Market Square
Millersburg, PA 17061
Community First 4370118850
130 N. Third Street
Sterling, CO 80751
Community First 5700100110
P.O. Box 1227
Cheyenne, WY 82003
Community First 4221213636
139 E. Victory Way
Craig, CO 81626
Community First Bank 12179801
P.O. Box 811
Glendive, MT 59330
Community First Bank and Trust 3405165
225 N. Main Street
Celina, OH 45822-0170
Community First Bank and Trust 33553
102 E. Main Street
P.O. Box 111
Van Wert, OH 45891-0111
Compass Bank 0077251510
P.O. Box 4444
Houston, TX 77210-4444
Compass Bank 0076109303
313 E. Central Ave.
Belton, TX 76513
Compass Bank 70968398
P.O. 969
Jacksonville, AL 36265
Compass Bank 0070418614
P.O. 4444
Houston, TX 77210-444
Crossroads Bank 27472
2000 S. Banker Street
P.O. Box 783
Effingham, IL 62401
Del Rio National Bank 205060
P.O. Box 4120
Del Rio, TX 78841-4120
Deposit Guaranty Nat'l. 2300238923
P.O. Box 1200
Jackson, MS 39215-1200
East Texas National Bank 1000756
P.O. Box 770
Palestine, TX 75802
Empire Bank 1066684
P.O. Box 619
Marshfield, MO 65706
Exchange National Bank 58777
132 East High Street
P.O. Box 688
Jefferson City, MO 65102
Exchange National Bank and Trust 139319
P.O. Box 189
Atchison, KS 66002
Family Security 71300032
16271 Hwy. 101 South
Harbor, OR 97415
Farmers Bank & Trust 25742
P.O. Box 250
Magnolia, AR 71753
First Arwest Bank 11023131
P.O. Box 130
Siloam Springs, AR 72761
First Bank 882027
P.O. Box 808
McComb, MS 39648-0808
First Bank & Trust 10007245
400 Twin City Hwy.
Groves, TX 77619-1027
First Bank Muleshoe 006238
P.O. Box 565
Muleshoe, TX 79347
First Bank of Owasso 818582
P.O. Box 1800
Owasso, OK 74055
First Coleman National Bank 1835467
P.O. Box 552
Coleman, TX 76834
First Federal 6069231
P.O. Box 268
Columbia, MS 39429
First Guaranty Bank 9212553292
P.O. Box 21116
Shreveport, LA 71457
First Interstate 2030034181
P.O. Box 578
Bozeman, MT 59771
First Interstate 1901002939
P.O. Box 903
Hardin, MT 59034
First Liberty National Bank 41378
1900 Sam Houston Ave.
P.O. Box 10109
Liberty, TX 77575-7609
First Merit Bank 8240213419
295 First Merit Circle
Akron, OH 44307-2359
First Merit Bank, NA 10009899
295 First Merit Circle
Akron, OH 44307-2359
First Midwest 0182958
P.O. Box 160
Poplar Bluff, MO 63902-0160
First Missouri National Bank 110023925
P.O. Box 190
Brookfield, MO 64628
First National 214999
P.O. Box 300
Decatur, IL 76234
First National 306930
P.O. Box 418
Fairbury, NE 68352
First National 6002757
720 S. Gaston Street
Crane, TX 79731-2619
First National 100101737
P.O. Box 1348
Miami, OK 74355
First National Bank 12501
P.O. Box 520
Gilmer, TX 75644
First National Bank 001008080
P.O. Box 937
Killeen, TX 76540-0937
First National Bank 0670157
P.O. Box 637
Altus, OK 73522-0637
First National Bank 10012660801
P.O. Box 660
Sweetwater, TX 79556-0660
First National Bank 130168
218 Main
Crossett, AR 71635-2926
First National Bank 1044249
P.O. Box 700
DeRidder, LA 70634-0700
First National Bank 3014886
206 E. Harvey
Wellington, KS 67152
First National Bank 102032
P.O. Box 545
Winfield, KS 67156
First National Bank 300043874
P.O. Box 27
Colby, KS 67701
First National Bank 533726
P.O. Box 318
Malden, MO 63863
First National Bank 82724
3rd and Gilson
DeQueen, AR 71832
First National Bank 100172
P.O. Drawer 835
Cameron, TX 76520
First National Bank 200100188
P.O. Box 951
Breckenridge, TX 76424
First National Bank 8028
P.O. Box 527
Haskell, TX 79521
First National Bank 201251
P.O. Box 170
Monahans, TX 79756
First National Bank 1046853
P.O. Box 100
Las Vegas, NM 87701
First National Bank 2008032
P.O. Box 407
Vinita, OK 74301
First National Bank 110664
P.O. Box 610
Henryetta, OK 74437
First National Bank 2001025
P.O. Box 309
Durant, OK 74702
First National Bank 3460
P.O. Box 340
Sallisaw, OK 74955
First National Bank 107518
P.O. Box 1130
Chickasha, OK 73023
First National Bank 2039881
101 W. Adams Street
Creston, IA 50801
First National Bank 1224546
101 E. Main
Ada, OK 74820-5622
First National Bank 109910
120 s. 2ND Street
Blyetheville, AR 72315-3414
First National Bank & Trust 110485
P.O. Box 9
Clinton, OK 73601
First National Bank in Alpine 0108359
P.O. Box 1108
Alpine, TX 79831
First National Bank of Picayune 1003666
121 East Canal Street
P.O. Box 848
Picayune, MS 39466-0848
First National Bank of 223446
Weatherford
P.O. Box 730
220 Palo Pinto
Weatherford, TX 76086
First National Bank-Alvin 160218
P.O. Box 606
Alvin, TX 77512-0606
First National Bank-Chillicothe 16306
P.O. Box 339
900 N. Fourth Street
Chillicothe, IL 61523-0339
First National Bank 99390
P.O. Box 658
Montevideo, MN 56265
First Prosperity Bank 18007
P.O. Box 400
Beeville, TX 78104-0400
First Security Bank 146404
P.O. Box 690
Batesville, MS 38606
First Security Bank & Trust 0606222
809 Clark Street
P.O. Box 607
Charles City, IA 50616
First State 1000489
P.O. Box 471
130 E. Corsicana Street
Athens, TX 75751-0471
First State 004722
P.O. Box 640
Jasper, TX 75951
First State Bank 1010662
P.O. Box 10
Gainesville, TX 76241-0010
First State Bank 87424
P.O. Box 569
Idabel, OK 74745
First State Bank & Trust Co. 28002
P.O. Drawer 579
Carthage, TX 75633-0579
First State Bank of Altus 509953
P.O. Box 979
Altus, OK 73522
First State Bank of Texas 142025518
P.O. Box 939
Burleson, TX 76097-0939
First Texas Bank 1014844
P.O. Box 930
Copperas, Cove, TX 76522
First Texas Bank 3008458
P.O. Box 5
Round Rock, TX 78680
First United Bank 13116282
P.O. Box 929
Dimmitt, TX 79027
Firstar Bank 634976697
340 5th Ave. South
Clinton, IA 52732
Firstar Bank 820423473
Location 0999
Cincinnati, OH 45264-0999
FirstBank Southwest 300010332
P.O. Box 593
Hereford, TX 79045
FirstBank Southwest 100680982
P.O. Box 929
Perryton, TX 79070
Franklin State Bank & Trust 1027905
802 Prairie
Winnsboro, LA 71295
Georgia Central 02005015
238 N. Broad Street
Monroe, GA 30655-1844
Graham National Bank 0044458
P.O. Box 450
Graham, TX 76450
Guaranty Bank 1111558
P.O. Box 1158
Mt. Pleasant, TX 75456
Guaranty Bank and Trust 2030872
800 E. Main Street
Gatesville, TX 76528-1433
Hancock Bank 00272108
P.O. Box 591
Baton Rouge, LA 70821
Hondo National 7001183
1112 18th Street
Hondo, TX 78861
Huntington National Bank 1041315070
P.O. Box 5065
Cleveland, OH 44101-0065
International Bank of Commerce 5551646200
P.O. Box 579
McAllen, TX 78502
Isabella Bank & Trust 144881
P.O. Box 100
Mt. Pleasant, MI 48804-0100
Jonesboro State Bank 11831101
P.O. Box 580
Jonesboro, LA 71251-0580
Keokuk Savings Bank & Trust 26518
P.O. Box 1030
Keouk, IA 52632-1030
Kermit State Bank 100846
P.O. Drawer K
Kermit, TX 79745
Key Bank 370111002595
1920 12th Street
Hood River, OR 97031
Kitsap Bank 0903936811
619 Bay Street
Port Orchard, WA 98366-5301
Kleberg First National 0253251
100 E. Kleberg
Kingsville, TX 78363-4596
Lafayette Bank & Trust 0000150037
P.O. Box 1130
Lafayette, IN 47902-1130
Lake City 00110752
601 Countryside Drive
Columbia City, IN 46725
Lamesa National Bank 10154
P.O. Drawer 301
Lamesa, TX 79331
League City Bank & Trust 020298
303 E. Main Street
League City, TX 77574-0759
Longview Bank & Trust 179116
P.O. Box 3188
Longview, TX 75606-3188
Lott State Bank 51644730
119 Cralk Street
Marlin, TX 76661
Mahaska State 367761
124 S. First
Oskaloosa, IA 52577-3126
Main Street Bank 14540
P.O. Drawer 1648
Cleveland, TX 77237
Malvern National Bank 37966
P.O. Box 370
Malvern, AR 72104
Martin Co. National Bank 13442
P.O. Box 848
Fairmont, MN 56031
McClain County Bank 1416771
131 W. Main
Purcell, OK 73080-4219
McCook National 920694
220 Norris Ave.
McCook, NE 69001-1208
Mercantile Bank 9630004639
73 Central Park Plaza
Jacksonville, IL 62650
Mercantile Bank 4270610043
310 Walnut
Dexter, MO 63841
Mercantile Bank of W. Iowa 2928006143
112 W. 2nd Street South
Newton, IA 50208
Mercedes National Bank 386813
P.O. Box 777
Mercedes, TX 78570-0777
Merchants & Farmers 5056306
501 S. 5th Street
Leesville, LA 71446
Merchants & Farmers Bank 280012343
P.O. Box 520
Kosciusko, MS 39090
Merchants & Planters Bank 1201263
P.O. Box 1017
Camden, AR 71701
Mid AM 820014205
519 Madison Avenue
Toledo, OH 43604
Mid America National 67896
130 North Side Square
Macomb, IL 61455
Minden Bank & Trust 42129
P.O. Box 400
Minden, LA 71058-0400
Minnesota Valley Bank 20116
P.O. Box 439
Redwood Falls, MN 56283
Morgan City Bank and Trust 0123889
P.O. Drawer 2000
Morgan City, LA 70381
Morgan City Bank and Trust 8296014
P.O. Drawer 2000
Morgan City, LA 70381
Morton Community Bank 102288
P.O. Box 104
Morton, IL 61550
Mountain Community Bank 15792
P.O. Box 1070
Los Alamos, NM 87544
National Bank & Trust 538906
P.O. Box 310
LaGrange, TX 78945-0310
National Bank Detroit 4514326695
P.O. Box 206A
Detroit, MI 48232
National Bank of Andrews 110056
P.O. Box 629
Andrews, TX 79714
National Bank of Commerce 361071
P.O. Box 1187
Starksville, MS 39759-1187
National City 6530027629
145 S. Ripley
Alpena, MI 49707
National City Bank 0501765239
1 National City Center
Indianapolis, IN 46255
National City Bank 6230360189
P.O. Box 8043
Royal Oak, MI 48068-8043
National City Bank 150532401
221 N. Main Street
Bryan, OH 43603-1688
National City Bank 239735746
1001 E. Main Street
Bradford, PA 16701-2899
NBC Bank 32859
439 Main Street
Eagle Pass, TX 78853-0969
NBC Bank 940283617
316 N. Main
Taylor, TX 76574
NBC Bank of Eagle Pass 53961
P.O. 969
Eagle Pass, TX 78853
Oakley National Bank 18323
P.O. Box 40
Buffalo, MN 55479
Old Fort Banking Co. 6200429
599 Plaza Drive
Fostoria, OH 44830
Old Kent - Big Rapids 3137083
101 N. Michigan Ave.
Big Rapids, MI 49307
Old Kent Bank-Grand Traverse 8458150
P.O. Box 589
Traverse City, MI 49685-0589
One Valley Bank 0003124708
P.O. Box 370
Summerville, WV 26651
Pauls Valley National Bank 1016164
P.O. Box 420
Pauls Valley, OK 73075
Pecos City State Bank 0100167
P.O. Box 1527
Fort Stockton, TX 79735
Peoples 3507893
201 W. 6th Street
Concordia, KS 66901
People's Bank and Trust 168181
315 1st Ave. N.E.
Sioux Center, IA 51250
Peoples Bank-Taos 10608984
P.O. Box 638
Rancho De Taos, NM 87557
Peoples National 147338
421 S. Hickory Street
Ottawa, KS 66067-2325
Peoples State Bank 6018873
611 5th Avenue
Magee, MS 3911-4212
Peoples State Bank 186442401
300 W. Emerson
Paragould, AR 72450
Planters 4800131946
212 Catchings
Indianola, MS 38751-2408
RCB 25114
222 S.E. 1st Ave.
Pryor, OK 74361
RCB Bank 25114
P.O. Box 189
Claremore, OK 74108
Security State Bank 153370
P.O. Box 2037
Pecos, TX 79772
Security State Bank 760
P.O. Box 470
Littlefield, TX 79339
Seminole National Bank 34746
P.O. Drawer 727
Seminole, TX 79360
Southtrust Bank 60000118
P.O. Box 1717
Silsbee, TX 77656-1717
Southwest Missouri Bank 110012619
300 West 3rd Street
Carthage, MO 64836-0814
Taylor Bank 0972273401
144 Market Street
Pocomoke City, MD 21851-1051
Texas State Bank 80471631
P.O. Box 4797
McAllen, TX 78502-4797
The City National Bank & Trust 839293
P.O. Box 410
Guymon, OK 73942
The First National Bank 1224546
P.O. Box 669
Ada, OK 74821
The First National Bank 1081181
P.O. Box 400
Granbury, TX 76048
The First National Bank 124
P.O. Box 678
Falfurrias, TX 78355
The Herring National Bank 7032420
P.O. 2040
Vernon, TX 76384
The Home National Bank 163333
P.O. Box 1047
Arkansas City, KS 67005
Trustmark National 4907322183
776 Brookway Blvd.
Brookhaven, MS 39601
Trustmark National 8104213815
P.O. Box 39
Vicksburg, MS 39181-0039
Union Bank 3131346301
201 E. Main Street
Streator, IL 61364
Union Bank of Mena 748609
P.O. Box 889
Mena, AR 71953-0898
Union Planters Bank 90128702
P.O. Box 7482
Houston, TX 77248-7842
Union Planters Bank 1908588
P.O. Box 387
Memphis, TN 38147
Union Planters Bank 0030115582
P.O. Box 387
Memphis, TN 38147
Union Planters Bank (Magna) 3726701358
303 S. Kickapoo Street
Lincoln, NE 62656
United Mississippi Bank 148874
P.O. Box 670
Natchez, MS 39120-0670
United Southwest Bank 54135
3115 S.E. 21st Street
Washington, IN 47501-1741
Valley National Bank 801926601
P.O. Box 99
Espanola, NM 87532
Value Bank, Texas 3204391
P.O. Box 4956
Corpus Christi, TX 78469-4956
Washington State Bank 128880
1110 Peoria Street
Washington, IL 61571-0129
Wells Fargo Bank New Mexico, 2810309940
N.A.
201 North 1st
Grants, NM 87020
West Texas State Bank 3502635
P.O. Box 1396
Snyder, TX 79549
Wisconsin Community 423468394
1717-10th Street
Monroe, WI 53566-1828
Wood County Bank 6600548
P.O. Box 1029
Mineola, TX 75773
Yoakum National Bank 1038769
P.O. Drawer 777
Yoakum, TX 77995
Chase Bank of Texas 00102630747
712 Main Street, 24th Floor
Houston, TX 77002
Chase Bank of Texas 00101777994
712 Main Street, 24th Floor
Houston, TX 77002
Chase Bank of Texas 337719
712 Main Street, 24th Floor
Houston, TX 77002
BankBoston 54170856
100 Federal Street, Mail Code:
01-07-01
Boston, MA 02110
BankBoston 52283725
100 Federal Street, Mail Code:
01-07-01
Boston, MA 02110
Schedule VII to the
Security Agreement
PERMITTED UNBLOCKED ACCOUNTS
SRI is the record or beneficial owner of each of the following
accounts:
DEPOSITORY BANK ACCOUNT NUMBER ACCOUNT PURPOSE
Chase Bank of Texas 063-00043281 Associate Benefits
Trust
Chase Bank of Texas 063-00047928 Texas IB (Workers
Compensation)
Chase Bank of Texas 063-00025452 Payroll
Chase Bank of Texas 063-00049338 USPS Postage
Chase Bank of Texas 063-00055905 Accounts Payable
(New)
Citicorp 30433704 Sales Tax and
Payroll Tax
BankBoston 800-17231 Expenses Payable
Exhibit A to the
Security Agreement
FORM OF SECURITY AGREEMENT SUPPLEMENT
[Date of Security Agreement
Supplement]
Citicorp USA, Inc.,
as the Collateral Agent for the
Secured Parties referred to in the
Credit Agreement referred to below
399 Park Avenue
New York, New York 10043
Attn: ___________________
Specialty Retailers, Inc.
Ladies and Gentlemen:
Reference is made to (i) the Credit Agreement dated as
of June 2, 2000 (as amended, amended and restated, supplemented
or otherwise modified from time to time, the "Credit Agreement"),
among SPECIALTY RETAILERS, INC., a Texas corporation, as the
Borrower, STAGE STORES, INC., a Delaware corporation, as the
Parent Guarantor, each a debtor and debtor in possession under
Chapter 11 of the Bankruptcy Code, the Lender Parties party
thereto, CITICORP USA, INC., as collateral agent (together with
any successor collateral agent appointed pursuant to Article VIII
of the Credit Agreement, the "Collateral Agent"), and as
administrative agent for the Lender Parties, and (ii) the
Security Agreement dated June 2, 2000 (as amended, amended and
restated, supplemented or otherwise modified from time to time,
the "Security Agreement") made by the Grantors from time to time
party thereto in favor of the Collateral Agent for the Secured
Parties. Terms defined in the Credit Agreement or the Security
Agreement and not otherwise defined herein are used herein as
defined in the Credit Agreement or the Security Agreement.
Grant of Security
. The undersigned hereby assigns and pledges to the
Collateral Agent for the ratable benefit of the Secured Parties,
and hereby grants to the Collateral Agent for the ratable benefit
of the Secured Parties, a security interest in, all of its right,
title and interest in and to all of the Collateral of the
undersigned, whether now owned or hereafter acquired by the
undersigned, wherever located and whether now or hereafter
existing or arising, including, without limitation, the property
and assets of the undersigned set forth on the attached
supplemental schedules to the Schedules to the Security
Agreement.
Security for Obligations
. The pledge and assignment of, and the grant of a
security interest in, the Collateral by the undersigned under
this Security Agreement Supplement and the Security Agreement
secures the payment of all Obligations of the undersigned now or
hereafter existing under or in respect of the Loan Documents,
whether direct or indirect, absolute or contingent, and whether
for principal, reimbursement obligations, interest, premiums,
penalties, fees, indemnifications, contract causes of action,
costs, expenses or otherwise. Without limiting the generality of
the foregoing, this Security Agreement Supplement and the
Security Agreement secures the payment of all amounts that
constitute part of the Secured Obligations and that would be owed
by the undersigned to any Secured Party under the Loan Documents
but for the fact that such Secured Obligations are unenforceable
or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving a Loan Party.
Supplements to Security Agreement Schedules
. The undersigned has attached hereto supplemental
Schedules I, II, III, IV, V, VI and VII to Schedules I, II, III,
IV, V, VI and VII, respectively, to the Security Agreement, and
the undersigned hereby certifies, as of the date first above
written, that such supplemental schedules have been prepared by
the undersigned in substantially the form of the equivalent
Schedules to the Security Agreement and are complete and correct
in all material respects.
Representations and Warranties
. The undersigned hereby makes each representation and
warranty set forth in Section 10 of the Security Agreement (as
supplemented by the attached supplemental schedules) to the same
extent as each other Grantor.
Obligations Under the Security Agreement
. The undersigned hereby agrees, as of the date first
above written, to be bound as a Grantor by all of the terms and
provisions of the Security Agreement to the same extent as each
of the other Grantors. The undersigned further agrees, as of the
date first above written, that each reference in the Security
Agreement to an "Additional Grantor" or a "Grantor" shall also
mean and be a reference to the undersigned.
Governing Law
. This Security Agreement Supplement shall be governed
by, and construed in accordance with, the laws of the State of
New York and, to the extent applicable, the Bankruptcy Code.
Very truly yours,
[NAME OF ADDITIONAL GRANTOR]
By_______________________________
Title:
Address for notices:
_______________________
_______________________
_______________________
Exhibit B to the
Security Agreement
FORM OF [PLEDGED] [ADDITIONAL PLEDGED] ACCOUNT LETTER
_______________, ____
[Name and address
of [Pledged] [Additional Pledged]
Account Bank]
[Name of the Grantor]
Gentlemen/women:
Reference is made to the lockboxes listed on Schedule I
hereto into which certain monies, instruments and other
properties are deposited from time to time and the deposit
accounts listed on Schedule I hereto (such lockboxes and deposit
accounts being, collectively, the "Pledged Accounts") maintained
with you by ____________________ (the "Grantor"). Pursuant to
the Security Agreement dated June 2, 2000 (as amended, amended
and restated, supplemented or otherwise modified from time to
time, the "Security Agreement"), the Grantor has granted to
Citicorp USA, Inc., as Collateral Agent (together with any
successor collateral agent appointed pursuant to Article VII of
the Credit Agreement, the "Collateral Agent") for the Secured
Parties referred to in the Credit Agreement dated as of June 2,
2000, with [__________] [the Grantor], a security interest in,
and sole dominion and control of, certain property of the
Grantor, including, among other things, the following (the
"Account Collateral"): each Pledged Account, all funds held
therein and all certificates and instruments, if any, from time
to time representing or evidencing such Pledged Account, all
interest, dividends, distributions, cash, instruments and other
property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the
then existing Account Collateral and all proceeds of any and all
of the foregoing Account Collateral. It is a condition to the
continued maintenance of the Pledged Accounts with you that you
agree to this letter agreement.
By executing this letter agreement, you acknowledge
notice of, and consent to the grant of the security interest in,
and the pledge and assignment of, the Account Collateral to the
Collateral Agent for the benefit of the Secured Parties and you
confirm to the Collateral Agent that the description of the
Pledged Accounts set forth on Schedule I hereto is correct and
that you have not received any notice of any other security
interest in, pledge or assignment of, or other claim (other than
that of the Grantor) on, any of the Pledged Accounts. Further,
you hereby agree with the Collateral Agent that:
Notwithstanding anything to the contrary in any
other agreement relating to any Pledged Account, each Pledged
Account is and will be subject to the security interest, pledge
and assignment created under the Security Agreement, will be
maintained solely for the benefit of the Secured Parties, will
have the title set forth opposite the account number therefor on
Schedule I hereto and will be subject to written instructions
only from an officer of the Collateral Agent. Only the
Collateral Agent is authorized to withdraw amounts from, to draw
upon, or, except as otherwise set forth herein, to otherwise
exercise any powers with respect to the Pledged Accounts and the
funds deposited therein. The Collateral Agent authorizes and
directs that the sole signatories authorized to act on behalf of
the Collateral Agent with respect to the Pledged Accounts are and
shall be such officers of the Collateral Agent as the Collateral
Agent may from time to time designate in a writing acceptable to
you. You may rely without liability on any such written
designation, absent manifest error, unless and until you receive
a written designation to the contrary. Any such written
designation shall include the specimen signature of each
authorized officer of the Collateral Agent.
You will collect mail from
each Pledged Account on each of
your business days at times that
coincide with the delivery of mail
thereto.
You will follow your usual
operating procedures for the
handling of any remittance that
contains restrictive endorsements,
irregularities (such as a variance
between the written and numerical
amounts), undated or postdated
items, missing signatures,
incorrect payees, etc. received in
any Pledged Account.
You will endorse and process
all eligible checks and other
remittance items not covered by
paragraph (c) and deposit such
checks and remittance items in the
Pledged Accounts.
You will maintain a record of
all checks and other remittance
items received in each Pledged
Account and, in addition to
providing the Grantor with
photostats, vouchers, enclosures,
etc. of such checks and remittance
items on a daily basis, furnish to
the Collateral Agent (i) a monthly
statement of each Pledged Account
and (ii) a daily collection and
check float report, to be mailed or
telecopied to the Collateral Agent
at: Citicorp USA, Inc., 399 Park
Avenue, New York, New York 10043,
Telecopier No. __________,
Attention: __________.
You will transfer, in same day
funds, on each of your business
days, all amounts collected from
each Pledged Account on such day to
the following account (the "Cash
Concentration Account"):
[Name of the Borrower]
Account No. __________
_____________________
_______________,
________, _____
Attention: ____________________
Each such transfer of funds shall neither comprise only part
of a remittance nor reflect the rounding off of any funds so
transferred.
All transfers referred to in paragraph (f) above shall
be made by you irrespective of, and without deduction for,
any counterclaim, defense, recoupment or set-off and shall
be final, and you will not seek to recover from the
Collateral Agent for any reason any such payment once made.
All service charges and fees
with respect to any Pledged Account
shall be payable by the Grantor,
and deposited checks returned for
any reason shall not be charged to
the applicable Pledged Account.
The Collateral Agent shall be
entitled to exercise any and all
rights of the Grantor in respect of
the Pledged Accounts and the other
Account Collateral in accordance
with the terms of the Security
Agreement, and you shall comply in
all respects with such exercise.
You hereby represent and warrant that the person
executing this letter agreement on your behalf is duly authorized
to do so.
No amendment or waiver of any provision of this letter
agreement, nor consent to any departures by you or the Grantor
herefrom, shall be effective unless the same shall be in writing
as signed by you, the Grantor and the Collateral Agent.
This letter agreement shall be binding upon you and
your successors and assigns and shall inure to the benefit of the
Secured Parties and their successors, transferees and assigns.
You may terminate this letter agreement upon thirty days' prior
written notice to the Grantor and the Collateral Agent. Upon
such termination you shall close the Pledged Accounts and
transfer all funds in the Pledged Accounts to the Cash
Concentration Account or another account as instructed by the
Collateral Agent at such time. After any such termination, you
shall nonetheless remain obligated promptly to transfer to the
Cash Concentration Account or to such other account as instructed
by the Collateral Agent at such time all funds and other property
received in respect of the Pledged Accounts.
This letter agreement may be executed in any number of
counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which when taken together shall
constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this letter agreement by
telecopier shall be effective as delivery of an original executed
counterpart of this letter agreement.
Please indicate your acknowledgment of and agreement to
the provisions of this letter agreement by signing in the
appropriate space provided below and returning this letter
agreement to ________________, _______________, __________,
________ ______, Telecopier No.: (212) ___-____, Attention:
________________. If you elect to deliver this letter agreement
by telecopier, please arrange for the executed original to follow
by next-day courier.
This letter agreement shall be governed by and
construed in accordance with the laws of the State of New York
and, to the extent applicable, the Bankruptcy Code.
Very truly yours,
[NAME OF GRANTOR]
By
Title:
Citicorp USA, Inc., as
Collateral Agent
By
Title:
Acknowledged and agreed to as of
the date first above written:
[NAME OF [PLEDGED] [ADDITIONAL PLEDGED] ACCOUNT BANK]
By
Title:
Schedule I to the
[Pledged] [Additional Pledged] Account Letter
[Lockbox/Account Number [Lockbox/Account
Name
Exhibit C to the
Security Agreement
FORM OF CONSENT AND AGREEMENT
The undersigned hereby (a) acknowledges notice of, and
consents to the terms and provisions of, the Security Agreement
dated June 2, 2000 (as amended, amended and restated,
supplemented or otherwise modified from time to time, the
"Security Agreement", the terms defined therein being used herein
as therein defined) from ____________________ (the "Grantor") and
certain other grantors from time to time party thereto to
Citicorp USA, Inc., as Collateral Agent (the "Collateral Agent")
for the Secured Parties referred to therein, (b) consents in all
respects to the pledge and assignment to the Collateral Agent of
all of the Grantor's right, title and interest in, to and under
the Assigned Agreement (as defined below) pursuant to the
Security Agreement, (c) acknowledges that the Grantor has
provided it with notice of the right of the Collateral Agent in
the exercise of its rights and remedies under the Security
Agreement to make all demands, give all notices, take all actions
and exercise all rights of the Grantor under the Assigned
Agreement, and (d) agrees with the Collateral Agent that:
The undersigned will make all payments to be made
by it under or in connection with the __________ Agreement dated
_______________, ____ (the "Assigned Agreement") between the
undersigned and the Grantor directly to the Cash Concentration
Account or otherwise in accordance with the instructions of the
Collateral Agent.
All payments
referred to in
paragraph (i) above shall
be made by the
undersigned irrespective
of, and without deduction
for, any counterclaim,
defense, recoupment or
set-off and shall be
final, and the
undersigned will not seek
to recover from any
Secured Party for any
reason any such payment
once made.
The Collateral Agent
or its designee shall be
entitled to exercise any
and all rights and
remedies of the Grantor
under the Assigned
Agreement in accordance
with the terms of the
Security Agreement, and
the undersigned shall
comply in all respects
with such exercise.
The undersigned will
not, without the prior
written consent of the
Collateral Agent,
(A) cancel or terminate
the Assigned Agreement or
consent to or accept any
cancellation or
termination thereof, or
(B) amend, amend and
restate, supplement or
otherwise modify the
Assigned Agreement,
except, in each case, to
the extent otherwise
permitted under the
Credit Agreement referred
to in the Security
Agreement.
In the event of a
default by the Grantor in
the performance of any of
its obligations under the
Assigned Agreement, or
upon the occurrence or
non-occurrence of any
event or condition under
the Assigned Agreement
which would immediately
or with the passage of
any applicable grace
period or the giving of
notice, or both, enable
the undersigned to
terminate or suspend its
obligations under the
Assigned Agreement, the
undersigned shall not
terminate the Assigned
Agreement until it first
gives written notice
thereof to the Collateral
Agent and permits the
Grantor and the
Collateral Agent the
period of time afforded
to the Grantor under the
Assigned Agreement to
cure such default.
The undersigned
shall deliver to the
Collateral Agent,
concurrently with the
delivery thereof to the
Grantor, a copy of each
notice, request or demand
given by the undersigned
pursuant to the Assigned
Agreement.
Except as
specifically provided in
this Consent and
Agreement, neither the
Collateral Agent nor any
other Secured Party shall
have any liability or
obligation under the
Assigned Agreement as a
result of this Consent
and Agreement, the
Security Agreement or
otherwise.
This Consent and Agreement shall be binding upon the
undersigned and its successors and assigns, and shall inure,
together with the rights and remedies of the Collateral Agent
hereunder, to the benefit of the Secured Parties and their
successors, transferees and assigns. This Consent and Agreement
shall be governed by and construed in accordance with the laws of
the State of New York and, to the extent applicable, the
Bankruptcy Code.
IN WITNESS WHEREOF, the undersigned has duly executed
this Consent and Agreement as of the date set opposite its name
below.
Dated: _______________, ____ [NAME OF OBLIGOR]
By
Title:
Exhibit D to the
Security Agreement
FORM OF CONTROL AGREEMENT
(Securities Account)
CONTROL AGREEMENT dated as of ________, ____,
among____________, a ___________ (the "Grantor"), Citicorp USA,
Inc., as Collateral Agent (the "Secured Party"), and _________,
a _________ ("____________"), as securities intermediary (the
"Securities Intermediary").
PRELIMINARY STATEMENTS:
(1) The Grantor has granted the Secured Party a
security interest (the "Security Interest") in account no.
_______________ maintained by the Securities Intermediary for the
Grantor (the "Account").
(2) Terms defined in Article 8 or 9 of the Uniform
Commercial Code in effect in the State of New York ("N.Y. Uniform
Commercial Code") are used in this Agreement as such terms are
defined in such Article 8 or 9.
NOW, THEREFORE, in consideration of the premises and of
the mutual agreements contained herein, the parties hereto hereby
agree as follows:
Section 1. The Account
. The Securities Intermediary represents and warrants
to, and agrees with, the Secured Party that:
The Securities Intermediary maintains the Account
for the Grantor, and all property held by the Securities
Intermediary for the account of the Grantor is, and will continue
to be, credited to the Account.
The Account is a securities
account. The Securities
Intermediary is the securities
intermediary with respect to the
property credited from time to time
to the Account. The Grantor is the
entitlement holder with respect to
the property credited from time to
time to the Account.
The securities intermediary's
jurisdiction with respect to the
Account is, and will continue to be
for so long as the Security
Interest shall be in effect, the
State of New York.
Exhibit A attached hereto is a
statement of the property credited
to the Account on the date hereof.
The Securities Intermediary
does not know of any claim to or
interest in the Account or any
property credited to the Account,
except for claims and interests of
the parties referred to in this
Agreement.
Control by Secured Party
. The Securities Intermediary will comply with all
notifications it receives directing it to transfer or redeem any
property in the Account (each an "Entitlement Order") or other
directions concerning the Account (including, without limitation,
directions to distribute to the Secured Party proceeds of any
such transfer or redemption or interest or dividends on property
in the Account) originated by the Secured Party without further
consent by the Grantor or any other person.
Grantor's Rights in Account
Except as otherwise provided in
this Section 3, the Securities
Intermediary will comply with
Entitlement Orders originated by the
Grantor without further consent by the
Secured Party.
Until the Securities
Intermediary receives a notice from
the Secured Party that the Secured
Party will exercise exclusive
control over the Account (a "Notice
of Exclusive Control"), the
Securities Intermediary may
distribute to the Grantor all
interest and regular cash dividends
on property in the Account.
The Securities Intermediary
will not comply with any
Entitlement Order originated by the
Grantor that would require the
Securities Intermediary to make a
free delivery to the Grantor or any
other person.
If the Securities Intermediary
receives from the Secured Party a
Notice of Exclusive Control, the
Securities Intermediary will cease:
complying with Entitlement
Orders or other directions
concerning the Account originated
by the Grantor and
distributing to the
Grantor interest and
dividends on property in
the Account.
Priority of Secured
Party's Security Interest
. The Securities Intermediary subordinates in favor
of the Secured Party any security interest, lien, or right of
setoff it may have, now or in the future, against the Account or
property in the Account, except that the Securities Intermediary
will retain its prior lien on property in the Account to secure
payment for property purchased for the Account and normal
commissions and fees for the Account.
The Securities Intermediary will not agree with
any third party that the Securities Intermediary will comply with
Entitlement Orders originated by the third party.
Statements,
Confirmations, and Notices of
Adverse Claims
. The Securities Intermediary will send copies of
all statements and confirmations for the Account simultaneously
to the Grantor and the Secured Party.
When the Securities Intermediary knows of any
claim or interest in the Account or any property credited to the
Account other than the claims and interests of the parties
referred to in this Agreement, the Securities Intermediary will
promptly notify the Secured Party and the Grantor of such claim
or interest.
The Securities
Intermediary's Responsibility.
. Except for permitting a withdrawal, delivery, or
payment in violation of Section 3, the Securities Intermediary
will not be liable to the Secured Party for complying with
Entitlement Orders or other directions concerning the Account
from the Grantor that are received by the Securities Intermediary
before the Securities Intermediary receives and has a reasonable
opportunity to act on a Notice of Exclusive Control.
The Securities Intermediary will not be liable to
the Grantor for complying with a Notice of Exclusive Control or
with an Entitlement Order or other direction concerning the
Account originated by the Secured Party, even if the Grantor
notifies the Securities Intermediary that the Secured Party is
not legally entitled to issue the Notice of Exclusive Control or
Entitlement Order or such other direction unless the Securities
Intermediary takes the action after it is served with an
injunction, restraining order, or other legal process enjoining
it from doing so, issued by a court of competent jurisdiction,
and had a reasonable opportunity to act on the injunction,
restraining order or other legal process.
This Agreement does not
create any obligation of the
Securities Intermediary except
for those expressly set forth
in this Agreement and in Part
5 of Article 8 of the N.Y.
Uniform Commercial Code. In
particular, the Securities
Intermediary need not
investigate whether the
Secured Party is entitled
under the Secured Party's
agreements with the Grantor to
give an Entitlement Order or
other direction concerning the
Account or a Notice of
Exclusive Control. The
Securities Intermediary may
rely on notices and
communications it believes
given by the appropriate
party.
Indemnity
. The Grantor will indemnify the Securities
Intermediary, its officers, directors, employees and agents
against claims, liabilities and expenses arising out of this
Agreement (including, without limitation, reasonable attorney's
fees and disbursements), except to the extent the claims,
liabilities or expenses are caused by the Securities
Intermediary's gross negligence or willful misconduct as found by
a court of competent jurisdiction in a final, non-appealable
judgment.
Termination; Survival
. The Secured Party may terminate this Agreement by
notice to the Securities Intermediary and the Grantor. If the
Secured Party notifies the Securities Intermediary that the
Security Interest has terminated, this Agreement will immediately
terminate.
The Securities Intermediary may terminate this
Agreement on 60 days' prior notice to the Secured Party and the
Grantor, provided that before such termination the Securities
Intermediary and the Grantor shall make arrangements to transfer
the property in the Account to another securities intermediary
that shall have executed, together with the Grantor, a control
agreement in favor of the Secured Party in respect of such
property in substantially the form of this Agreement or otherwise
in form and substance satisfactory to the Secured Party.
Sections 6 and 7 will
survive termination of this
Agreement.
Governing Law
. This Agreement and the Account will be governed by
the law of the State of New York and, to the extent applicable,
the Bankruptcy Code. The Securities Intermediary and the Grantor
may not change the law governing the Account without the Secured
Party's express prior written agreement.
Entire Agreement
. This Agreement is the entire agreement, and
supersedes any prior agreements, and contemporaneous oral
agreements, of the parties concerning its subject matter.
Amendments
. No amendment of, or waiver of a right under, this
Agreement will be binding unless it is in writing and signed by
the party to be charged.
Financial Assets
. The Securities Intermediary agrees with the Secured
Party and the Grantor that, to the fullest extent permitted by
applicable law, all property credited from time to time to the
Account will be treated as financial assets under Article 8 of
the N.Y. Uniform Commercial Code.
Notices
. A notice or other communication to a party under
this Agreement will be in writing (except that Entitlement Orders
may be given orally), will be sent to the party's address set
forth under its name below or to such other address as the party
may notify the other parties and will be effective on receipt.
Binding Effect
. This Agreement shall become effective when it shall
have been executed by the Grantor, the Secured Party and the
Securities Intermediary, and thereafter shall be binding upon and
inure to the benefit of the Grantor, the Secured Party and the
Securities Intermediary and their respective successors and
assigns.
Execution in Counterparts
. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement. Delivery of an executed counterpart
of a signature page to this Agreement by telecopier shall be
effective as delivery of an original executed counterpart of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
[NAME OF GRANTOR]
By
Title:
Address:
Citicorp USA, Inc., as
Collateral Agent
By
Title:
Address:
[NAME OF SECURITIES
INTERMEDIARY]
By
Title:
Address:
Exhibit E to the
Security Agreement
FORM OF CONTROL AGREEMENT
(Commodity Account)
CONTROL AGREEMENT dated as of ________, ____,
among____________, a ___________ (the "Grantor"), Citicorp USA,
Inc., as Collateral Agent (the "Secured Party"), and _________, a
_________ ("____________"), as commodity intermediary (the
"Commodity Intermediary").
PRELIMINARY STATEMENTS:
(1) The Grantor has granted the Secured Party a
security interest (the "Security Interest") in account
no. _______________ maintained by the Commodity Intermediary
for the Grantor (the "Account").
(2) Terms defined in Article 8 or 9 of the Uniform
Commercial Code in effect in the State of New York ("N.Y.
Uniform Commercial Code") are used in this Agreement as such
terms are defined in such Article 8 or 9.
NOW, THEREFORE, in consideration of the premises and of
the mutual agreements contained herein, the parties hereto hereby
agree as follows:
Section 2. The Account
. The Commodity Intermediary represents and warrants
to, and agrees with, the Secured Party that:
The Commodity Intermediary maintains the Account
for the Grantor, and all commodity contracts held by the
Commodity Intermediary for the account of the Grantor is, and
will continue to be, carried in the Account.
The Account is a commodity
account. The Commodity Intermediary
is the commodity intermediary with
respect to the commodity contracts
carried from time to time in the
Account. The Grantor is the
commodity customer with respect to
the commodity contracts carried
from time to time in the Account.
The commodity intermediary's
jurisdiction with respect to the
Account is, and will continue to be
for so long as the Security
Interest shall be in effect, the
State of New York.
Exhibit A attached hereto is a
statement of the commodity
contracts carried in the Account on
the date hereof.
The Commodity Intermediary
does not know of any claim to or
interest in the Account or any
commodity contract carried in the
Account, except for claims and
interests of the parties referred
to in this Agreement.
Control by Secured Party
. The Commodity Intermediary will comply with all
notifications it receives directing it to apply any value
distributed on account of any commodity contract or contracts
carried in the Account (each an "Entitlement Order") or other
directions concerning the Account originated by the Secured Party
without further consent by the Grantor or any other person.
Grantor's Rights in Account
Except as otherwise provided in
this Section 3, the Commodity
Intermediary will comply with
Entitlement Orders originated by the
Grantor without further consent by the
Secured Party.
Until the Commodity
Intermediary receives a notice from
the Secured Party that the Secured
Party will exercise exclusive
control over the Account (a "Notice
of Exclusive Control"), the
Commodity Intermediary may act on
any directions originated by the
Grantor concerning the Account.
The Commodity Intermediary
will not comply with any
Entitlement Order originated by the
Grantor that would require the
Commodity Intermediary to make a
free delivery to the Grantor or any
other person.
If the Commodity Intermediary
receives from the Secured Party a
Notice of Exclusive Control, the
Commodity Intermediary will cease:
complying with Entitlement
Orders or other directions
concerning the Account originated
by the Grantor and
distributing to the
Grantor any value
distributed on account of
any commodity contract
carried in the Account.
Priority of Secured
Party's Security Interest
. The Commodity Intermediary subordinates in favor
of the Secured Party any security interest, lien, or right of
setoff it may have, now or in the future, against the Account or
commodity contracts carried in the Account, except that the
Commodity Intermediary will retain its prior lien on commodity
contracts in the Account to secure payment for commodity
contracts purchased for the Account and normal commissions and
fees for the Account.
The Commodity Intermediary will not agree with any
third party that the Commodity Intermediary will comply with
Entitlement Orders originated by the third party.
Statements,
Confirmations, and Notices of
Adverse Claims
The Commodity Intermediary will send copies of all
statements and confirmations for the Account simultaneously to
the Grantor and the Secured Party.
When the Commodity Intermediary knows of any claim
or interest in the Account or any commodity contracts carried in
the Account other than the claims and interests of the parties
referred to in this Agreement, the Commodity Intermediary will
promptly notify the Secured Party and the Grantor of such claim
or interest.
The Commodity Intermediary's
Responsibility
. The Commodity Intermediary will not be liable to
the Secured Party for complying with Entitlement Orders or other
directions concerning the Account from the Grantor that are
received by the Commodity Intermediary before the Commodity
Intermediary receives and has a reasonable opportunity to act on
a Notice of Exclusive Control.
The Commodity Intermediary will not be liable to
the Grantor for complying with a Notice of Exclusive Control or
with an Entitlement Order or other direction concerning the
Account originated by the Secured Party, even if the Grantor
notifies the Commodity Intermediary that the Secured Party is not
legally entitled to issue the Notice of Exclusive Control or
Entitlement Order or such other direction unless the Commodity
Intermediary takes the action after it is served with an
injunction, restraining order, or other legal process enjoining
it from doing so, issued by a court of competent jurisdiction,
and had a reasonable opportunity to act on the injunction,
restraining order or other legal process.
This Agreement does not
create any obligation of the
Commodity Intermediary except
for those expressly set forth
in this Agreement. In
particular, the Commodity
Intermediary need not
investigate whether the
Secured Party is entitled
under the Secured Party's
agreements with the Grantor to
give an Entitlement Order or
other direction concerning the
Account or a Notice of
Exclusive Control. The
Commodity Intermediary may
rely on notices and
communications it believes
given by the appropriate
party.
Indemnity
. The Grantor will indemnify the Commodity
Intermediary, its officers, directors, employees and agents
against claims, liabilities and expenses arising out of this
Agreement (including, without limitation, reasonable attorney's
fees and disbursements), except to the extent the claims,
liabilities or expenses are caused by the Commodity
Intermediary's gross negligence or willful misconduct as found by
a court of competent jurisdiction in a final non-appealable
judgment.
Termination; Survival
. Agreement by notice to the Commodity Intermediary
and the Grantor. If the Secured Party notifies the Commodity
Intermediary that the Security Interest has terminated, this
Agreement will immediately terminate.
The Commodity Intermediary may terminate this
Agreement on 60 days' prior notice to the Secured Party and the
Grantor, provided that before such termination the Commodity
Intermediary and the Grantor shall make arrangements to transfer
the commodity contracts carried in the Account to another
commodity intermediary that shall have executed, together with
the Grantor, a control agreement in favor of the Secured Party in
respect of such commodity contracts in substantially the form of
this Agreement or otherwise in form and substance satisfactory to
the Secured Party.
Sections 6 and 7 will
survive termination of this
Agreement.
Governing Law
. This Agreement and the Account will be governed by
the law of the State of New York and, to the extent applicable,
the Bankruptcy Code. The Commodity Intermediary and the Grantor
may not change the law governing the Account without the Secured
Party's express prior written agreement.
Entire Agreement
. This Agreement is the entire agreement, and
supersedes any prior agreements, and contemporaneous oral
agreements, of the parties concerning its subject matter.
Amendments
. No amendment of, or waiver of a right under, this
Agreement will be binding unless it is in writing and signed by
the party to be charged.
Commodity Contracts
. The Commodity Intermediary agrees with the Secured
Party and the Grantor that, to the fullest extent permitted by
applicable law, all property carried from time to time in the
Account will be treated as commodity contracts under Article 8 of
the N.Y. Uniform Commercial Code.
Notices
. A notice or other communication to a party under
this Agreement will be in writing (except that Entitlement Orders
may be given orally), will be sent to the party's address set
forth under its name below or to such other address as the party
may notify the other parties and will be effective on receipt.
Binding Effect
. This Agreement shall become effective when it shall
have been executed by the Grantor, the Secured Party and the
Commodity Intermediary, and thereafter shall be binding upon and
inure to the benefit of the Grantor, the Secured Party and the
Commodity Intermediary and their respective successors and
assigns.
Execution in Counterparts
. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement. Delivery of an executed counterpart
of a signature page to this Agreement by telecopier shall be
effective as delivery of an original executed counterpart of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
[NAME OF GRANTOR]
By
Title:
Address:
Citicorp USA, Inc., as
Collateral Agent
By
Title:
Address:
[NAME OF COMMODITIES
INTERMEDIARY]
By
Title:
Address:
Exhibit F to the
Security Agreement
FORM OF INTELLECTUAL PROPERTY SECURITY AGREEMENT
This INTELLECTUAL PROPERTY SECURITY AGREEMENT (as
amended, amended and restated, supplemented or otherwise modified
from time to time, the "IP Security Agreement") dated June 2,
2000, is made by the Persons listed on the signature pages, each
a debtor and debtor-in-possession under Chapter 11 of the
Bankruptcy Code (other than the Non-Filing Subsidiaries) hereof
(collectively, the "Grantors") in favor of Citicorp USA, Inc., as
collateral agent (the "Collateral Agent") for the Secured Parties
(as defined in the Credit Agreement referred to below).
WHEREAS, Specialty Retailers, Inc., a Texas
corporation, as Borrower, and Stage Stores, Inc., a Delaware
corporation, as Parent Guarantor, each a debtor and debtor in
possession under chapter 11 of the Bankruptcy Code, have entered
into a Credit Agreement dated as of June 2, 2000 (said Agreement,
as it may hereafter be amended, amended and restated,
supplemented or otherwise modified from time to time, being the
"Credit Agreement") with the Lender Parties party thereto. Terms
defined in the Credit Agreement and not otherwise defined herein
are used herein as defined in the Credit Agreement.
WHEREAS, as a condition precedent to the making of
Advances and the issuance of Letters of Credit by the Lender
Parties under the Credit Agreement from time to time, each
Grantor has executed and delivered that certain Security
Agreement dated June 2, 2000 made by the Grantors to the
Collateral Agent (as amended, amended and restated, supplemented
or otherwise modified from time to time, the "Security
Agreement").
WHEREAS, under the terms of the Security Agreement,
Grantors have granted a security interest in, among other
property, certain intellectual property of the Grantors to the
Collateral Agent for the ratable benefit of the Secured Parties,
and have agreed as a condition thereof to execute this IP
Security Agreement covering such intellectual property for
recording with the U.S. Patent and Trademark Office, the United
States Copyright Office and other governmental authorities.
NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged,
each Grantor agrees as follows:
Section 3. Grant of Security
. Each Grantor hereby grants to the Collateral Agent
for the ratable benefit of the Secured Parties a security
interest in and to all of such Grantor's right, title and
interest in and to the following (the "Collateral"):
the United States, international, and foreign
patents, patent applications and patent licenses set forth in
Schedule A hereto (as such Schedule A may be supplemented from
time to time by supplements to the Security Agreement and this IP
Security Agreement, each such supplement being in substantially
the form of Exhibit G to the Security Agreement (an "IP Security
Agreement Supplement"), executed and delivered by such Grantor to
the Collateral Agent from time to time), together with all
reissues, divisions, continuations, continuations-in-part,
extensions and reexaminations thereof, and all rights therein
provided by international treaties or conventions (the
"Patents");
the United States
and foreign trademark and
service mark
registrations,
applications, and
licenses set forth in
Schedule B hereto (as
such Schedule B may be
supplemented from time to
time by IP Security
Agreement Supplements
executed and delivered by
such Grantor to the
Collateral Agent from
time to time) (the
"Trademarks");
the copyrights,
United States and foreign
copyright registrations
and applications and
copyright licenses set
forth in Schedule C
hereto (as such
Schedule C may be
supplemented from time to
time by IP Security
Agreement Supplements
executed and delivered by
such Grantor to the
Collateral Agent from
time to time) (the
"Copyrights");
any and all claims
for damages for past,
present and future
infringement,
misappropriation or
breach with respect to
the Patents, Trademarks
and Copyrights, with the
right, but not the
obligation, to sue for
and collect, or otherwise
recover, such damages;
and
any and all proceeds
of the foregoing.
Security for
Obligations
. The pledge and assignment of, and the grant of a
security interest in, the Collateral by each Grantor under this
IP Security Agreement secures the payment of all Obligations of
such Grantor now or hereafter existing under or in respect of the
Loan Documents, whether direct or indirect, absolute or
contingent, and whether for principal, reimbursement obligations,
interest, premiums, penalties, fees, indemnifications, contract
causes of action, costs, expenses or otherwise. Without limiting
the generality of the foregoing, this IP Security Agreement
secures, as to each Grantor, the payment of all amounts that
constitute part of the Secured Obligations and that would be owed
by such Grantor to any Secured Party under the Loan Documents but
for the fact that such Secured Obligations are unenforceable or
not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving a Loan Party.
Recordation
. Each Grantor authorizes and requests that the
Register of Copyrights, the Commissioner of Patents and
Trademarks and any other applicable government officer record
this IP Security Agreement.
Execution in Counterparts
. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
Grants, Rights and Remedies
. This IP Security Agreement has been entered into in
conjunction with the provisions of the Security Agreement. Each
Grantor does hereby acknowledge and confirm that the grant of the
security interest hereunder to, and the rights and remedies of,
the Collateral Agent with respect to the Collateral are more
fully set forth in the Security Agreement, the terms and
provisions of which are incorporated herein by reference as if
fully set forth herein.
Governing Law
. This IP Security Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York
and, to the extent applicable, the Bankruptcy Code.
IN WITNESS WHEREOF, each Grantor has caused this
Agreement to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above written.
SPECIALTY RETAILERS, INC.
By /s/ John Wiesner
Title: Chief Executive
Officer
Address for Notices:
10201 Main Street, Houston,
TX 77025
STAGE STORES, INC.
By /s/ John Wiesner
Title: Chief Executive
Officer
Address for Notices:
10201 Main Street, Houston,
TX 77025
SPECIALTY RETAILERS, INC. (NV)
By /s/ John Wiesner
Title: Chief Executive
Officer
Address for Notices:
10201 Main Street, Houston,
TX 77025
Exhibit G to the
Security Agreement
FORM OF INTELLECTUAL PROPERTY SECURITY AGREEMENT SUPPLEMENT
This INTELLECTUAL PROPERTY SECURITY AGREEMENT
SUPPLEMENT (this "IP Security Agreement Supplement") dated
________, ____, is made by the Person listed on the signature
page hereof (the "Grantor") in favor of Citicorp USA, Inc., as
collateral agent (the "Collateral Agent") for the Secured Parties
(as defined in the Credit Agreement referred to below).
WHEREAS, Specialty Retailers, Inc., a Texas
corporation, as Borrower, and Stage Stores, Inc., a Delaware
corporation, as Parent Guarantor, each a debtor and debtor in
possession under chapter 11 of the Bankruptcy Code, have entered
into a Credit Agreement dated as of June 2, 2000 (said Agreement,
as it may hereafter be amended, amended and restated,
supplemented or otherwise modified from time to time, being the
"Credit Agreement") with the Lender Parties party thereto. Terms
defined in the Credit Agreement and not otherwise defined herein
are used herein as defined in the Credit Agreement.
WHEREAS, pursuant to the Credit Agreement, the Grantor
and certain other Persons have executed and delivered that
certain Security Agreement dated June 2, 2000 made by the Grantor
and such other Persons to the Collateral Agent (as amended,
amended and restated, supplemented or otherwise modified from
time to time, the "Security Agreement"). To create a short form
version of the Security Agreement covering certain intellectual
property of the Grantor and such other Persons for recording with
the U.S. Patent and Trademark Office, the United States Copyright
Office and other governmental authorities, the Grantor and such
other Persons have executed and delivered that certain
Intellectual Property Security Agreement made by the Grantor and
such other Persons to the Collateral Agent dated June 2, 2000 (as
amended, amended and restated, supplemented or otherwise modified
from time to time, the "IP Security Agreement").
WHEREAS, under the terms of the Security Agreement and
the IP Security Agreement, the Grantor has granted a security
interest in the Additional Collateral (as defined in Section 1
below) of the Grantor to the Collateral Agent for the ratable
benefit of the Secured Parties and has agreed as a condition
thereof to execute this IP Security Agreement Supplement for
recording with the U.S. Patent and Trademark Office, the United
States Copyright Office and other governmental authorities.
NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
Grantor agrees as follows:
Section 4. Confirmation of Grant of Security
. The Grantor hereby acknowledges and confirms the
grant of a security interest to the Collateral Agent for the
ratable benefit of the Secured Parties under the Security
Agreement and the IP Security Agreement in and to all of the
Grantor's right, title and interest in and to the following (the
"Additional Collateral"):
The United States, international, and foreign
patents, patent applications, and patent licenses set forth in
Schedule A hereto, together with all reissues, divisions,
continuations, continuations-in-part, extensions and
reexaminations thereof, and all rights therein provided by
international treaties or conventions (the "Patents");
The United States
and foreign trademark and
service mark
registrations,
applications, and
licenses set forth in
Schedule B hereto (the
"Trademarks");
The copyrights,
United States and foreign
copyright registrations
and applications and
copyright licenses set
forth in Schedule C
hereto (the
"Copyrights");
any and all claims
for damages for past,
present and future
infringement,
misappropriation or
breach with respect to
the Patents, Trademarks
and Copyrights, with the
right, but not the
obligation, to sue for
and collect, or otherwise
recover, such damages;
and
any and all proceeds
of the foregoing.
Supplement to
Security Agreement and IP
Security Agreement
. Schedule V to the Security Agreement and Schedule[s]
[A,] [B and] [C] to the IP Security Agreement are each, effective
as of the date hereof, hereby supplemented to add to such
Schedules the Additional Collateral.
Recordation
. The Grantor authorizes and requests that the
Register of Copyrights, the Commissioner of Patents and
Trademarks and any other applicable government officer to record
this IP Security Agreement Supplement.
Governing Law
. This IP Security Agreement Supplement shall be
governed by, and construed in accordance with, the laws of the
State of New York and, to the extent applicable, the Bankruptcy
Code.
IN WITNESS WHEREOF, the Grantor has caused this
Agreement to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above written.
[NAME OF GRANTOR]
By
Name:
Title:
Address for Notices:
[ADD ACKNOWLEDGMENT FORM IF NEEDED]
Exhibit H to the
Security Agreement
FORM OF CASH CONCENTRATION ACCOUNT LETTER
_______________, ____
[Name and address
of Collateral Bank]
Specialty Retailers, Inc.
Gentlemen/women:
Reference is made to (i) deposit account no. __________
(the "Cash Concentration Account") and (ii) deposit account
no. _________ (the "Operating Account"), in each case into which
certain monies, instruments and other properties are deposited
from time to time (collectively, the "Pledged Accounts")
maintained with you by Specialty Retailers, Inc. (the "Grantor").
Pursuant to the Security Agreement dated June 2, 2000 (as
amended, amended and restated, supplemented or otherwise modified
from time to time, the "Security Agreement"), the Grantor has
granted to Citicorp USA, Inc., as Collateral Agent (together with
any successor collateral agent appointed pursuant to Article VIII
of the Credit Agreement, the "Collateral Agent") for the Secured
Parties referred to in the Credit Agreement dated as of June 2,
2000, with the Grantor, a security interest in, and sole dominion
and control of, certain property of the Grantor, including, among
other things, the following (the "Account Collateral"): each
Pledged Account, all funds held therein and all certificates and
instruments, if any, from time to time representing or evidencing
such Pledged Account, all interest, dividends, distributions,
cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange
for any or all of the then existing Account Collateral and all
proceeds of any and all of the foregoing Account Collateral. It
is a condition to the continued maintenance of the Pledged
Accounts with you that you agree to this letter agreement.
By executing this letter agreement, you acknowledge
notice of, and consent to the grant of the security interest in,
and the pledge and assignment of, the Account Collateral to the
Collateral Agent for the benefit of the Secured Parties and you
confirm to the Collateral Agent that the description of the
Pledged Accounts set forth on Schedule I hereto is correct and
that you have not received any notice of any other security
interest in, pledge or assignment of, or other claim (other than
that of the Grantor) on, any of the Pledged Accounts. Further,
you hereby agree with the Collateral Agent that:
Notwithstanding anything to the contrary in any
other agreement relating to any Pledged Account, each Pledged
Account is and will be subject to the security interest, pledge
and assignment created under the Security Agreement, will be
maintained solely for the benefit of the Secured Parties, will
have the title set forth opposite the account number therefor on
Schedule I hereto and will be subject to written instructions
only from an officer of the Collateral Agent. Only the
Collateral Agent is authorized to withdraw amounts from, to draw
upon, or, except as otherwise set forth herein, to otherwise
exercise any powers with respect to the Pledged Accounts (other
than the Operating Account, as to which authorized signatories of
the Borrower shall have such powers, subject to the terms and
conditions of this letter agreement) and the funds deposited
therein. The Collateral Agent authorizes and directs that the
sole signatories authorized to act on behalf of the Collateral
Agent with respect to the Pledged Accounts are and shall be such
officers of the Collateral Agent as the Collateral Agent may from
time to time designate in a writing acceptable to you. You may
rely without liability on any such written designation, absent
manifest error, unless and until you receive a written
designation to the contrary. Any such written designation shall
include the specimen signature of each authorized officer of the
Collateral Agent.
You will collect mail from
each Pledged Account on each of
your business days at times that
coincide with the delivery of mail
thereto.
You will follow your usual
operating procedures for the
handling of any remittance that
contains restrictive endorsements,
irregularities (such as a variance
between the written and numerical
amounts), undated or postdated
items, missing signatures,
incorrect payees, etc. received in
any Pledged Account.
You will endorse and process
all eligible checks and other
remittance items not covered by
paragraph (c) and deposit such
checks and remittance items in the
Cash Concentration Accounts.
You will maintain a record of
all checks and other remittance
items received in each Pledged
Account and, in addition to
providing the Grantor with
photostats, vouchers, enclosures,
etc. of such checks and remittance
items on a daily basis, furnish to
the Collateral Agent (i) a monthly
statement of each Pledged Account
and (ii) a daily collection and
check float report, to be mailed or
telecopied to the Collateral Agent
at: Citicorp USA, Inc., 399 Park
Avenue, New York, New York 10043,
Telecopier No. __________,
Attention: __________.
Unless the Collateral Agent
shall have made the request
referred to in paragraph (g) below:
you will transfer amounts on
deposit in the Cash Concentration
Account to the Operating Account to
the extent necessary to pay all
checks drawn on, and all amounts
otherwise withdrawn from, the
Operating Account; provided,
however, that in no event will the
Grantor be permitted to withdraw
any funds from the Cash
Concentration Account; and
you will from time
to time (x) invest
amounts on deposit in the
Cash Concentration
Account in such Cash
Equivalents (as defined
in the Credit Agreement,
a copy of which
definition has been
furnished to you) in the
name of the Collateral
Agent as the Grantor may
select and the Collateral
Agent may approve, and
(y) invest interest paid
on the Cash Equivalents
referred to in clause (x)
above, and reinvest other
proceeds of any such Cash
Equivalents that may
mature or be sold, in
each case in such Cash
Equivalents in the name
of the Collateral Agent
as the Borrower may
select and the Collateral
Agent may approve.
Interest and proceeds
that are not invested or
reinvested in Cash
Equivalents as provided
above shall be deposited
and held in the Cash
Concentration Account.
In addition, the
Collateral Agent has the
right at any time to
direct you to exchange
such Cash Equivalents for
similar Cash Equivalents
of smaller or larger
denominations, or for
other Cash Equivalents,
and you agree to comply
with any such direction.
Upon the written
request of the Collateral
Agent to you, you will
transfer, in same day
funds, on each of your
business days thereafter
until the Collateral
Agent withdraws such
request in writing (in
which case the provisions
of paragraph (g) shall
again become operative),
all amounts collected
from or on deposit in the
Pledged Accounts (or such
lesser amounts as the
Collateral Agent shall
direct) on such day to
the following account
(the "Collateral
Account"):
Specialty Retailers, Inc.
Account No. ________
______________
______________
______________
Attention: ______________
Each such transfer of funds shall neither comprise only part
of a remittance nor reflect the rounding off of any funds so
transferred.
All transfers referred to in paragraph (g) above shall
be made by you irrespective of, and without deduction for,
any counterclaim, defense, recoupment or set-off and shall
be final, and you will not seek to recover from the
Collateral Agent for any reason any such payment once made.
All service charges and fees
with respect to any Pledged Account
shall be payable by the Grantor,
and deposited checks returned for
any reason shall not be charged to
the applicable Pledged Account.
The Collateral Agent shall be
entitled to exercise any and all
rights of the Grantor in respect of
the Pledged Accounts and the other
Account Collateral in accordance
with the terms of the Security
Agreement, and you shall comply in
all respects with such exercise.
You hereby represent and warrant that the person
executing this letter agreement on your behalf is duly authorized
to do so.
No amendment or waiver of any provision of this letter
agreement, nor consent to any departures by you or the Grantor
herefrom, shall be effective unless the same shall be in writing
as signed by you, the Grantor and the Collateral Agent.
This letter agreement shall be binding upon you and
your successors and assigns and shall inure to the benefit of the
Secured Parties and their successors, transferees and assigns.
You may terminate this letter agreement upon thirty days' prior
written notice to the Grantor and the Collateral Agent. Upon
such termination you shall close the Pledged Accounts and
transfer all funds in the Pledged Accounts to the Collateral
Account or another account as instructed by the Collateral Agent
at such time. After any such termination, you shall nonetheless
remain obligated promptly to transfer to the Collateral Account
or to such other account as instructed by the Collateral Agent at
such time all funds and other property received in respect of the
Pledged Accounts.
This letter agreement may be executed in any number of
counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which when taken together shall
constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this letter agreement by
telecopier shall be effective as delivery of an original executed
counterpart of this letter agreement.
Please indicate your acknowledgment of and agreement to
the provisions of this letter agreement by signing in the
appropriate space provided below and returning this letter
agreement to ________________, _______________, __________,
________ ______, Telecopier No.: (212) ___-____, Attention:
________________. If you elect to deliver this letter agreement
by telecopier, please arrange for the executed original to follow
by next-day courier.
This letter agreement shall be governed by, and
construed in accordance with, the laws of the State of New York
and, to the extent applicable, the Bankruptcy Code.
Very truly yours,
SPECIALTY RETAILERS, INC.
By
Title:
CITICORP USA, INC., as
Collateral Agent
By
Title:
Acknowledged and agreed to as of
the date first above written:
[NAME OF COLLATERAL BANK]
By _________________________
Title:
Schedule I to the
Cash Concentration Account Letter
Account Number Account Name
EXHIBIT E TO
THE CREDIT AGREEMENT
CONFORMED COPY,
AS SEPARATELY EXECUTED
SUBSIDIARY GUARANTY
Dated as of June 2, 2000
From
THE GUARANTORS NAMED HEREIN
and
THE ADDITIONAL GUARANTORS REFERRED TO HEREIN
as Guarantors
in favor of
THE SECURED PARTIES REFERRED TO IN
THE CREDIT AGREEMENT REFERRED TO HEREIN
T A B L E O F C O N T E N T S
Section Page
Section 1. Guaranty; Limitation of Liability 1
Section 2. Guaranty Absolute 2
Section 3. Waivers and Acknowledgments 3
Section 4. Subrogation 4
Section 5. Payments Free and Clear of Taxes, Etc. 4
Section 6. Representations and Warranties 6
Section 7. Covenants 6
Section 8. Amendments, Guaranty Supplements, Etc. 6
Section 9. Notices, Etc. 7
Section 10. No Waiver; Remedies 7
Section 11. Right of Set-off 7
Section 12. Indemnification 7
Section 13. Subordination 8
Section 14.Continuing Guaranty; Assignments under the Credit Agreement 9
Section 15. Execution in Counterparts 9
Section 16.Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. 9
Exhibit A - Guaranty Supplement
SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTY dated as of June 2, 2000 made by
the Persons listed on the signature pages hereof under the
caption "Subsidiary Guarantors", each a debtor and
debtor-in-possession under Chapter 11 of the U.S. Bankruptcy Code
(11 U.S.C. 101 et seq; the "Bankruptcy Code") (other than the
Non-Filing Subsidiaries, as such term is defined in the Credit
Agreement referred to below) and the Additional Guarantors (as
defined in Section 8(b)) (such Persons so listed and the
Additional Guarantors being, collectively, the "Guarantors" and,
individually, each a "Guarantor") in favor of the Secured Parties
(as defined in the Credit Agreement referred to below).
PRELIMINARY STATEMENT. Specialty Retailers, Inc., a
Texas corporation (the "Borrower"), and Stage Stores, Inc., a
Delaware corporation (the "Parent Guarantor"), each a debtor and
debtor in possession under chapter 11 of the Bankruptcy Code,
have entered into a certain Credit Agreement dated as of June 2,
2000 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"; the
capitalized terms defined therein and not otherwise defined
herein being used herein as therein defined) with certain Lender
Parties party thereto and Citicorp USA, Inc., as Administrative
Agent and Collateral Agent for such Lender Parties. Each
Guarantor may receive, directly or indirectly, a portion of the
proceeds of the Advances under the Credit Agreement and will
derive substantial direct and indirect benefits from the
transactions contemplated by the Credit Agreement. It is a
condition precedent to the making of Advances and the issuance of
Letters of Credit by the Lender Parties under the Credit
Agreement from time to time that each Guarantor shall have
executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in
order to induce the Lender Parties to make Advances and to issue
Letters of Credit under the Credit Agreement from time to time,
each Guarantor, jointly and severally with each other Guarantor,
hereby agrees as follows:
ARTICLE 48 GUARANTY; LIMITATION OF LIABILITY
. SECTION 48.01 Each Guarantor hereby absolutely,
unconditionally and irrevocably guarantees the punctual payment
when due, whether at scheduled maturity or on any date of a
required prepayment or by acceleration, demand or otherwise, of
all Obligations of each other Loan Party now or hereafter
existing under or in respect of the Loan Documents, the Interim
Order or the Final Order (including, without limitation, any
extensions, modifications, substitutions, amendments or renewals
of any or all of the foregoing Obligations), whether direct or
indirect, absolute or contingent, and whether for principal,
interest, premiums, fees, indemnities, contract causes of action,
costs, expenses or otherwise (such Obligations being the
"Guaranteed Obligations"), and agrees to pay any and all expenses
(including, without limitation, fees and expenses of counsel)
incurred by the Administrative Agent or any other Secured Party
in enforcing any rights under this Guaranty or any other Loan
Document. Without limiting the generality of the foregoing, each
Guarantor's liability shall extend to all amounts that constitute
part of the Guaranteed Obligations and would be owed by any other
Loan Party to any Secured Party under or in respect of the Loan
Documents but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or
similar proceeding involving such other Loan Party.
SECTION 48.02 Each Guarantor, and by its acceptance of this
Guaranty, the Administrative Agent and each other Secured Party,
hereby confirms that it is the intention of all such Persons that
this Guaranty and the Obligations of each Guarantor hereunder not
constitute a fraudulent transfer or conveyance for purposes of
Bankruptcy Law (as hereinafter defined), the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar foreign, federal or state law to the extent applicable to
this Guaranty and the Obligations of each Guarantor hereunder.
To effectuate the foregoing intention, the Administrative Agent,
the other Secured Parties and the Guarantors hereby irrevocably
agree that the Obligations of each Guarantor under this Guaranty
at any time shall be limited to the maximum amount as will result
in the Obligations of such Guarantor under this Guaranty not
constituting a fraudulent transfer or conveyance. For purposes
hereof, "Bankruptcy Law" means any proceeding (other than with
respect to the Cases) of the type referred to in Section 6.01(i)
of the Credit Agreement, the Bankruptcy Code, or any similar
foreign, federal or state law for the relief of debtors.
SECTION 48.03 Each Guarantor hereby unconditionally and
irrevocably agrees that in the event any payment shall be
required to be made to any Secured Party under this Guaranty or
the Parent Guaranty or any other guaranty, such Guarantor will
contribute, to the maximum extent permitted by law, such amounts
to each other Guarantor and the Parent Guarantor and each other
guarantor so as to maximize the aggregate amount paid to the
Secured Parties under or in respect of the Loan Documents.
SECTION 48.04 This Guaranty shall, in the case of each Guarantor
which is a debtor in a Case, be subject to the approval of the
Bankruptcy Court.
ARTICLE 49 GUARANTY ABSOLUTE
. Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of
the Loan Documents, regardless of any law, regulation or order
now or hereafter in effect in any jurisdiction affecting any of
such terms or the rights of any Secured Party with respect
thereto. The Obligations of each Guarantor under or in respect
of this Guaranty are independent of the Guaranteed Obligations or
any other Obligations of any other Loan Party under or in respect
of the Loan Documents, and a separate action or actions may be
brought and prosecuted against each Guarantor to enforce this
Guaranty, irrespective of whether any action is brought against
the Borrower or any other Loan Party or whether the Borrower or
any other Loan Party is joined in any such action or actions.
Upon the Guaranteed Obligations becoming due and payable (by
acceleration or otherwise), the Lender Parties shall be entitled
to immediate payment of such Guaranteed Obligations by each
Guarantor upon written demand by the Administrative Agent,
without further application to or order of the Bankruptcy Court.
For purposes hereof, the Guaranteed Obligations shall be due and
payable when the same shall be due and payable under the terms of
the Loan Documents, notwithstanding the fact that the collection
or enforcement thereof may be stayed or enjoined under the
Bankruptcy Code or other applicable law. The liability of each
Guarantor under this Guaranty shall be irrevocable, absolute and
unconditional irrespective of, and each Guarantor hereby
irrevocably waives any defenses it may now have or hereafter
acquire in any way relating to, any or all of the following:
SECTION 49.01 any lack of validity or enforceability of any Loan
Document, the Interim Order, the Final Order or any agreement or
instrument relating thereto;
SECTION 49.02 any change in the time, manner or place of payment
of, or in any other term of, all or any of the Guaranteed
Obligations or any other Obligations of any other Loan Party
under or in respect of the Loan Documents, or any other amendment
or waiver of or any consent to departure from any Loan Document,
including, without limitation, any increase in the Guaranteed
Obligations resulting from the extension of additional credit to
any Loan Party or any of its Subsidiaries or otherwise;
SECTION 49.03 any taking, exchange, release or non-perfection of
any Collateral or any other collateral, or any taking, release or
amendment or waiver of, or consent to departure from, any other
guaranty, for all or any of the Guaranteed Obligations;
SECTION 49.04 any manner of application of Collateral or any
other collateral, or proceeds thereof, to all or any of the
Guaranteed Obligations, or any manner of sale or other
disposition of any Collateral or any other collateral for all or
any of the Guaranteed Obligations or any other Obligations of any
Loan Party under the Loan Documents or any other assets of any
Loan Party or any of its Subsidiaries;
SECTION 49.05 any change, restructuring or termination of the
corporate structure or existence of any Loan Party or any of its
Subsidiaries;
SECTION 49.06 any failure of any Secured Party to disclose to
any Loan Party any information relating to the business,
condition (financial or otherwise), operations, performance,
properties or prospects of any other Loan Party now or hereafter
known to such Secured Party (each Guarantor waiving any duty on
the part of the Secured Parties to disclose such information);
SECTION 49.07 the failure of any other Person to execute or
deliver this Guaranty, any Guaranty Supplement (as hereinafter
defined) or any other guaranty or agreement or the release or
reduction of liability of any Guarantor or other guarantor or
surety with respect to the Guaranteed Obligations; or
SECTION 49.08 any other circumstance (including, without
limitation, any statute of limitations) or any existence of or
reliance on any representation by any Secured Party that might
otherwise constitute a defense available to, or a discharge of,
any Loan Party or any other guarantor or surety.
This Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any
of the Guaranteed Obligations is rescinded or must otherwise be
returned by any Secured Party or any other Person, whether upon
the insolvency, bankruptcy or reorganization of the Borrower or
any other Loan Party (other than with respect to the Cases) or
otherwise, all as though such payment had not been made.
ARTICLE 50 WAIVERS AND ACKNOWLEDGMENTS
. SECTION 50.01 Each Guarantor hereby unconditionally
and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of
nonperformance, default, acceleration, protest or dishonor and
any other notice with respect to any of the Guaranteed
Obligations and this Guaranty and any requirement that any
Secured Party protect, secure, perfect or insure any Lien or any
property subject thereto or exhaust any right or take any action
against any Loan Party or any other Person or any Collateral.
SECTION 50.02 Each Guarantor hereby unconditionally and
irrevocably waives any right to revoke this Guaranty and
acknowledges that this Guaranty is continuing in nature and
applies to all Guaranteed Obligations, whether existing now or in
the future.
SECTION 50.03 Each Guarantor hereby unconditionally and
irrevocably waives (i) any defense arising by reason of any claim
or defense based upon an election of remedies by any Secured
Party that in any manner impairs, reduces, releases or otherwise
adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of such Guarantor or other
rights of such Guarantor to proceed against any of the other Loan
Parties, any other guarantor or any other Person or any
Collateral and (ii) any defense based on any right of set-off or
counterclaim against or in respect of the Obligations of such
Guarantor hereunder.
SECTION 50.04 Each Guarantor acknowledges that the Collateral
Agent may, without notice to or demand upon such Guarantor and
without affecting the liability of such Guarantor under this
Guaranty, foreclose under any mortgage by nonjudicial sale, and
each Guarantor hereby waives any defense to the recovery by the
Collateral Agent and the other Secured Parties against such
Guarantor of any deficiency after such nonjudicial sale and any
defense or benefits that may be afforded by applicable law.
SECTION 50.05 Each Guarantor hereby unconditionally and
irrevocably waives any duty on the part of any Secured Party to
disclose to such Guarantor any matter, fact or thing relating to
the business, condition (financial or otherwise), operations,
performance, properties or prospects of any other Loan Party or
any of its Subsidiaries now or hereafter known by such Secured
Party.
SECTION 50.06 Each Guarantor acknowledges that it will receive
substantial direct and indirect benefits from the financing
arrangements contemplated by the Loan Documents and that the
waivers set forth in Section 2 and this Section 3 are knowingly
made in contemplation of such benefits.
ARTICLE 51 SUBROGATION
. Each Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now
have or hereafter acquire against the Borrower, any other Loan
Party or any other insider guarantor that arise from the
existence, payment, performance or enforcement of such
Guarantor's Obligations under or in respect of this Guaranty or
any other Loan Document, including, without limitation, any right
of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or
remedy of any Secured Party against the Borrower, any other Loan
Party or any other insider guarantor or any Collateral, whether
or not such claim, remedy or right arises in equity or under
contract, statute or common law, including, without limitation,
the right to take or receive from the Borrower, any other Loan
Party or any other insider guarantor, directly or indirectly, in
cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right,
unless and until all of the Guaranteed Obligations and all other
amounts payable under this Guaranty shall have been paid in full
in cash, all Letters of Credit and the Commitments shall have
expired or been terminated. If any amount shall be paid to any
Guarantor in violation of the immediately preceding sentence at
any time prior to the latest of (a) the payment in full in cash
of the Guaranteed Obligations and all other amounts payable under
this Guaranty, (b) the Termination Date and (c) the latest date
of expiration or termination of all Letters of Credit such amount
shall be received and held in trust for the benefit of the
Secured Parties, shall be segregated from other property and
funds of such Guarantor and shall forthwith be paid or delivered
to the Administrative Agent in the same form as so received (with
any necessary endorsement or assignment) to be credited and
applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in
accordance with the terms of the Loan Documents, or to be held as
Collateral for any Guaranteed Obligations or other amounts
payable under this Guaranty thereafter arising. If (i) any
Guarantor shall make payment to any Secured Party of all or any
part of the Guaranteed Obligations, (ii) all of the Guaranteed
Obligations and all other amounts payable under this Guaranty
shall have been paid in full in cash, (iii) the Termination Date
shall have occurred and (iv) all Letters of Credit, the Secured
Parties will, at such Guarantor's request and expense, execute
and deliver to such Guarantor appropriate documents, without
recourse and without representation or warranty, necessary to
evidence the transfer by subrogation to such Guarantor of an
interest in the Guaranteed Obligations resulting from such
payment made by such Guarantor pursuant to this Guaranty.
ARTICLE 52 PAYMENTS FREE AND CLEAR OF TAXES, ETC.
SECTION 52.01 Any and all payments made by any
Guarantor under or in respect of this Guaranty or any other Loan
Document shall be made, in accordance with Section 2.11 of the
Credit Agreement, free and clear of and without deduction for any
and all present or future Taxes. If any Guarantor shall be
required by law to deduct any Taxes from or in respect of any sum
payable under or in respect of this Guaranty or any other Loan
Document to any Secured Party, (i) the sum payable by such
Guarantor shall be increased as may be necessary so that after
such Guarantor and the Administrative Agent have made all
required deductions (including deductions applicable to
additional sums payable under this Section 5), such Secured Party
receives an amount equal to the sum it would have received had no
such deductions been made, (ii) such Guarantor shall make all
such deductions and (iii) such Guarantor shall pay the full
amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
SECTION 52.02 In addition, each Guarantor agrees to pay any
present or future Other Taxes that arise from any payment made by
or on behalf of such Guarantor under or in respect of this
Guaranty or any other Loan Document or from the execution,
delivery or registration of, performance under, or otherwise with
respect to, this Guaranty and the other Loan Documents.
SECTION 52.03 Each Guarantor will indemnify each Secured Party
for and hold it harmless against the full amount of Taxes and
Other Taxes, and for the full amount of taxes of any kind imposed
by any jurisdiction on amounts payable under this Section 5,
imposed on or paid by such Secured Party and any liability
(including penalties, additions to tax, interest and expenses)
arising therefrom or with respect thereto. This indemnification
shall be made within 30 days from the date such Secured Party
makes written demand therefor.
SECTION 52.04 Within 30 days after the date of any payment of
Taxes by or on behalf of any Guarantor, such Guarantor shall
furnish to the Administrative Agent, at its address referred to
in Section 9, the original or a certified copy of a receipt
evidencing such payment. In the case of any payment hereunder by
or on behalf of any Guarantor through an account or branch
outside the United States or by or on behalf of such Guarantor by
a payor that is not a United States person, if such Guarantor
determines that no Taxes are payable in respect thereof, such
Guarantor shall furnish, or shall cause such payor to furnish, in
either case, to the Administrative Agent, at such address, a
certificate from each appropriate taxing authority or authorities
and an opinion of counsel acceptable to the Administrative Agent
stating that such payment is exempt from Taxes. For purposes of
subsections (d) and (e) of this Section 5, the terms "United
States" and "United States person" shall have the meanings
specified in Section 7701 of the Internal Revenue Code.
SECTION 52.05 Upon the reasonable request in writing of any
Guarantor, each Secured Party organized under the laws of a
jurisdiction outside the United States shall, on or prior to the
date of its execution and delivery of the Credit Agreement in the
case of each Initial Lender or Initial Issuing Bank, as the case
may be, and on or prior to the date of the Assignment and
Acceptance pursuant to which it becomes a Secured Party in the
case of each other Secured Party, and from time to time
thereafter upon the reasonable request in writing by any
Guarantor (but only so long thereafter as such Secured Party
remains lawfully able to do so), provide each of the
Administrative Agent and such Guarantor with two original
Internal Revenue Service forms 1001 or 4224 or (in the case of a
Secured Party that has certified in writing to the Administrative
Agent that it is not a "bank" as defined in Section 881(c)(3)(A)
of the Internal Revenue Code) form W-8 (and, if such Secured
Party delivers a form W-8, a certificate representing that such
Secured Party is not a "bank" for purposes of Section 881(c) of
the Internal Revenue Code, is not a 10-percent shareholder
(within the meaning of Section 871(h)(3)(B) of the Internal
Revenue Code) of the Borrower and is not a controlled foreign
corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Internal Revenue Code)), as appropriate,
or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Secured Party is exempt from or
entitled to a reduced rate of United States withholding tax on
payments under the Credit Agreement or the Notes or, in the case
of a Secured Party providing a form W-8, certifying that such
Secured Party is a foreign corporation, partnership, estate or
trust. If the forms provided by a Secured Party at the time such
Secured Party first becomes a party to the Credit Agreement
indicate a United States interest withholding tax rate in excess
of zero, withholding tax at such rate shall be considered
excluded from Taxes unless and until such Secured Party provides
the appropriate form certifying that a lesser rate applies,
whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such
forms; provided, however, that if, in the case of a Secured Party
becoming a party to the Credit Agreement, at the date of the
Assignment and Acceptance pursuant to which a Secured Party
becomes a party to the Credit Agreement, the Secured Party
assignor was entitled to payments under subsection (a) of this
Section 5 in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the
term Taxes shall include (in addition to withholding taxes that
may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any,
applicable with respect to the Secured Party assignee on such
date. If any form or document referred to in this subsection (e)
and requested by any Guarantor pursuant to this subsection (e)
requires the disclosure of information, other than information
necessary to compute the tax payable and information required on
the date hereof by Internal Revenue Service form 1001, 4224 or
W-8 (or the related certificate described above), that the
applicable Secured Party reasonably considers to be confidential,
such Secured Party shall give notice thereof to the applicable
Guarantor and shall not be obligated to include in such form or
document such confidential information.
SECTION 52.06 For any period with respect to which a Secured
Party has failed to provide any Guarantor following such
Guarantor's request therefor pursuant to subsection (e) above
with the appropriate form described in subsection (e) above
(other than if such failure is due to a change in law occurring
after the date on which a form originally was required to be
provided or if such form otherwise is not required under
subsection (e) above), such Secured Party shall not be entitled
to indemnification under subsection (a) or (c) of this Section 5
with respect to Taxes imposed by the United States by reason of
such failure; provided, however, that should a Secured Party
become subject to Taxes because of its failure to deliver a form
required hereunder, such Guarantor shall take such steps as such
Secured Party shall reasonably request to assist such Secured
Party to recover such Taxes.
ARTICLE 53 REPRESENTATIONS AND WARRANTIES
. Each Guarantor hereby makes each representation and
warranty made in the Loan Documents by the Borrower with respect
to such Guarantor and each Guarantor hereby further represents
and warrants as follows:
SECTION 53.01 There are no conditions precedent to the
effectiveness of this Guaranty that have not been satisfied or
waived.
SECTION 53.02 Such Guarantor has, independently and without
reliance upon any Secured Party and based on such documents and
information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Guaranty and each other
Loan Document to which it is or is to be a party, and such
Guarantor has established adequate means of obtaining from each
other Loan Party on a continuing basis information pertaining to,
and is now and on a continuing basis will be completely familiar
with, the business, condition (financial or otherwise),
operations, performance, properties and prospects of such other
Loan Party.
ARTICLE 54 COVENANTS
. Each Guarantor covenants and agrees that, so long as
any part of the Guaranteed Obligations shall remain unpaid, any
Letter of Credit shall be outstanding, any Lender Party shall
have any Commitment, such Guarantor will perform and observe, and
cause each of its Subsidiaries to perform and observe, all of the
terms, covenants and agreements set forth in the Loan Documents
on its or their part to be performed or observed or that the
Borrower has agreed to cause such Guarantor or such Subsidiaries
to perform or observe.
ARTICLE 55 AMENDMENTS, GUARANTY SUPPLEMENTS, ETC.
SECTION 55.01 No amendment or waiver of any
provision of this Guaranty and no consent to any departure by any
Guarantor therefrom shall in any event be effective unless the
same shall be in writing and signed by the Administrative Agent
and the Required Lenders, and then such waiver or consent shall
be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment,
waiver or consent shall, unless in writing and signed by all of
the Secured Parties (other than any Lender Party that is, at such
time, a Defaulting Lender), (a) reduce or limit the obligations
of any Guarantor hereunder, release any Guarantor hereunder or
otherwise limit any Guarantor's liability with respect to the
Obligations owing to the Secured Parties under or in respect of
the Loan Documents (b) postpone any date fixed for payment
hereunder or (c) change the number of Secured Parties or the
percentage of (x) the Commitments, (y) the aggregate unpaid
principal amount of the Advances or (z) the aggregate Available
Amount of outstanding Letters of Credit that, in each case, shall
be required for the Secured Parties or any of them to take any
action hereunder.
(b) Upon the execution and delivery by any Person of a
guaranty supplement in substantially the form of Exhibit A hereto
(each, a "Guaranty Supplement"), (i) such Person shall be
referred to as an "Additional Guarantor" and shall become and be
a Guarantor hereunder, and each reference in this Guaranty to a
"Guarantor" shall also mean and be a reference to such Additional
Guarantor, and each reference in any other Loan Document to a
"Subsidiary Guarantor" shall also mean and be a reference to such
Additional Guarantor, and (ii) each reference herein to "this
Guaranty", "hereunder", "hereof" or words of like import
referring to this Guaranty, and each reference in any other Loan
Document to the "Subsidiary Guaranty", "thereunder", "thereof" or
words of like import referring to this Guaranty, shall mean and
be a reference to this Guaranty as supplemented by such Guaranty
Supplement.
ARTICLE 56 NOTICES, ETC.
All notices and other communications provided for
hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed
or delivered to it, if to any Guarantor, addressed to it in care
of the Borrower at the Borrower's address specified in Section
9.02 of the Credit Agreement, if to any Agent or any Lender
Party, at its address specified in Section 9.02 of the Credit
Agreement, or, as to any party, at such other address as shall be
designated by such party in a written notice to each other party.
All such notices and other communications shall, when mailed,
telegraphed, telecopied or telexed, be effective when deposited
in the mails, delivered to the telegraph company, transmitted by
telecopier or confirmed by telex answerback, respectively.
Delivery by telecopier of an executed counterpart of a signature
page to any amendment or waiver of any provision of this Guaranty
or of any Guaranty Supplement to be executed and delivered
hereunder shall be effective as delivery of an original executed
counterpart thereof.
ARTICLE 57 NO WAIVER; REMEDIES
. No failure on the part of any Secured Party to
exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
ARTICLE 58 RIGHT OF SET-OFF
. Upon (a) the occurrence and during the continuance
of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 of the Credit
Agreement to authorize the Administrative Agent to declare the
Notes due and payable pursuant to the provisions of said Section
6.01, each Agent and each Lender Party and each of their
respective Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law and without
further order of the Bankruptcy Court, to set off and apply any
and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time
owing by such Agent, such Lender Party or such Affiliate to or
for the credit or the account of any Guarantor against any and
all of the Obligations of such Guarantor now or hereafter
existing under the Loan Documents, irrespective of whether such
Agent or such Lender Party shall have made any demand under this
Guaranty or any other Loan Document and although such Obligations
may be unmatured. Each Agent and each Lender Party agrees
promptly to notify such Guarantor after any such set-off and
application; provided, however, that the failure to give such
notice shall not affect the validity of such set-off and
application. The rights of each Agent and each Lender Party and
their respective Affiliates under this Section are in addition to
other rights and remedies (including, without limitation, other
rights of set-off) that such Agent, such Lender Party and their
respective Affiliates may have.
ARTICLE 59 INDEMNIFICATION
. SECTION 59.01 Without limitation on any other
Obligations of any Guarantor or remedies of the Secured Parties
under this Guaranty, each Guarantor shall, to the fullest extent
permitted by law, indemnify, defend and save and hold harmless
each Secured Party and each of their Affiliates and their
respective officers, directors, employees, agents and advisors
(each, an "Indemnified Party") from and against, and shall pay on
demand, any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or
awarded against any Indemnified Party in connection with or as a
result of any failure of any Guaranteed Obligations to be the
legal, valid and binding obligations of any Loan Party
enforceable against such Loan Party in accordance with their
terms.
SECTION 59.02 Each Guarantor hereby also agrees that none of the
Indemnified Parties shall have any liability (whether direct or
indirect, in contract, tort or otherwise) to any of the
Guarantors or any of their respective Affiliates or any of their
respective officers, directors, employees, agents and advisors,
and each Guarantor hereby agrees not to assert any claim against
any Indemnified Party on any theory of liability, for special,
indirect, consequential or punitive damages arising out of or
otherwise relating to the Facilities, the actual or proposed use
of the proceeds of the Advances or the Letters of Credit, the
Transaction Documents or any of the transactions contemplated by
the Transaction Documents.
SECTION 59.03 Without prejudice to the survival of any of the
other agreements of any Guarantor under this Guaranty or any of
the other Loan Documents, the agreements and obligations of each
Guarantor contained in Section 1(a) (with respect to enforcement
expenses), the last sentence of Section 2, Section 5 and this
Section 12 shall survive the payment in full of the Guaranteed
Obligations and all of the other amounts payable under this
Guaranty.
ARTICLE 60 SUBORDINATION
. Each Guarantor hereby subordinates any and all
debts, liabilities and other Obligations owed to such Guarantor
by each other Loan Party (the "Subordinated Obligations") to the
Guaranteed Obligations to the extent and in the manner
hereinafter set forth in this Section 13:
SECTION 60.01 Prohibited Payments, Etc. Except during the
continuance of a Default (including the commencement and
continuation of any proceeding under any Bankruptcy Law relating
to any other Loan Party), each Guarantor may receive regularly
scheduled payments from any other Loan Party on account of the
Subordinated Obligations. After the occurrence and during the
continuance of any Default (including the commencement and
continuation of any proceeding under any Bankruptcy Law relating
to any other Loan Party), however, unless the Administrative
Agent otherwise agrees, no Guarantor shall demand, accept or take
any action to collect any payment on account of the Subordinated
Obligations.
SECTION 60.02 Prior Payment of Guaranteed Obligations. In any
proceeding under any Bankruptcy Law relating to any other Loan
Party, each Guarantor agrees that the Secured Parties shall be
entitled to receive payment in full in cash of all Guaranteed
Obligations (including all interest and expenses accruing after
the commencement of a proceeding under any Bankruptcy Law,
whether or not constituting an allowed claim in such proceeding
("Post Petition Interest") before such Guarantor receives payment
of any Subordinated Obligations.
SECTION 60.03 Turn-Over. After the occurrence and during the
continuance of any Default (including the commencement and
continuation of any proceeding under any Bankruptcy Law relating
to any other Loan Party), each Guarantor shall, if the
Administrative Agent so requests, collect, enforce and receive
payments on account of the Subordinated Obligations as trustee
for the Secured Parties and deliver such payments to the
Administrative Agent on account of the Guaranteed Obligations
(including all Post Petition Interest), together with any
necessary endorsements or other instruments of transfer, but
without reducing or affecting in any manner the liability of such
Guarantor under the other provisions of this Guaranty.
SECTION 60.04 Administrative Agent Authorization. After the
occurrence and during the continuance of any Default (including
the commencement and continuation of any proceeding under any
Bankruptcy Law relating to any other Loan Party), the
Administrative Agent is authorized and empowered (but without any
obligation to so do), in its discretion, (i) in the name of each
Guarantor, to collect and enforce, and to submit claims in
respect of, Subordinated Obligations and to apply any amounts
received thereon to the Guaranteed Obligations (including any and
all Post Petition Interest), and (ii) to require each Guarantor
(A) to collect and enforce, and to submit claims in respect of,
Subordinated Obligations and (B) to pay any amounts received on
such obligations to the Administrative Agent for application to
the Guaranteed Obligations (including any and all Post Petition
Interest).
ARTICLE 61 CONTINUING GUARANTY; ASSIGNMENTS UNDER THE CREDIT
AGREEMENT
. This Guaranty is a continuing guaranty and shall (a)
remain in full force and effect until the latest of (i) the
payment in full in cash of the Guaranteed Obligations and all
other amounts payable under this Guaranty, (ii) the Termination
Date and (iii) the latest date of expiration or termination of
all Letters of Credit, (b) be binding upon the Guarantor, its
successors and assigns and (c) inure to the benefit of and be
enforceable by the Secured Parties and their successors,
transferees and assigns. Without limiting the generality of
clause (c) of the immediately preceding sentence, any Secured
Party may assign or otherwise transfer all or any portion of its
rights and obligations under the Credit Agreement (including,
without limitation, all or any portion of its Commitments, the
Advances owing to it and the Note or Notes held by it) to any
other Person, and such other Person shall thereupon become vested
with all the benefits in respect thereof granted to such Secured
Party herein or otherwise, in each case as and to the extent
provided in Section 9.07 of the Credit Agreement. No Guarantor
shall have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Secured
Parties.
ARTICLE 62 EXECUTION IN COUNTERPARTS
. This Guaranty and each amendment, waiver and consent
with respect hereto may be executed in any number of counterparts
and by different parties thereto in separate counterparts, each
of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature
page to this Guaranty by telecopier shall be effective as
delivery of an original executed counterpart of this Guaranty.
ARTICLE 63 GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL,
ETC.
SECTION 63.01 This Guaranty shall be governed by,
and construed in accordance with, the laws of the State of New
York and, to the extent applicable, the Bankruptcy Code.
SECTION 63.02 Each Guarantor hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal
court of the United States of America sitting in New York City,
the Bankruptcy Court and any appellate court from any thereof, in
any action or proceeding arising out of or relating to this
Guaranty or any of the other Loan Documents to which it is or is
to be a party, or for recognition or enforcement of any judgment,
and each Guarantor hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may
be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court or Bankruptcy
Court, as the case may be, and any appellate court therefrom.
Each Guarantor agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Guaranty or any other Loan
Document shall affect any right that any party may otherwise have
to bring any action or proceeding relating to this Guaranty or
any other Loan Document in the courts of any jurisdiction.
SECTION 63.03 Each Guarantor irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or
relating to this Guaranty or any of the other Loan Documents to
which it is or is to be a party in any New York State or federal
court or the Bankruptcy Court, as the case may be. Each
Guarantor hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the
maintenance of such suit, action or proceeding in any such court.
SECTION 63.04 EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO ANY OF THE LOAN DOCUMENTS, THE ADVANCES OR THE
ACTIONS OF ANY SECURED PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, each Guarantor has caused this
Guaranty to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above written.
SUBSIDIARY GUARANTORS
SPECIALTY RETAILERS, INC. (NV)
By /s/ John Wiesner
Name: John Wiesner
Title: Agent
Address for Notices:
10201 Main Street, Houston, TX
77025
Exhibit A
To The
Subsidiary Guaranty
FORM OF SUBSIDIARY GUARANTY SUPPLEMENT
_________ __,
____
Citicorp USA, Inc., as Administrative Agent
399 Park Avenue
New York, NY 10043
Attention: _________
Credit Agreement dated as of June 2, 2000 among SPECIALTY
RETAILERS, INC., a Texas corporation (the "Borrower"), STAGE
STORES, INC., a Delaware corporation (the "Parent
Guarantor"), each a debtor and debtor in possession under
chapter 11 of the Bankruptcy Code, the Lender Parties party
to the Credit Agreement, and CITICORP USA, INC., as
Administrative Agent and Collateral Agent.
Ladies and Gentlemen:
Reference is made to the above-captioned Credit
Agreement and to the Subsidiary Guaranty referred to therein
(such Subsidiary Guaranty, as in effect on the date hereof and as
it may hereafter be amended, supplemented or otherwise modified
from time to time, together with this Guaranty Supplement, being
the "Subsidiary Guaranty"). The capitalized terms defined in the
Subsidiary Guaranty or in the Credit Agreement and not otherwise
defined herein are used herein as therein defined.
First: Guaranty; Limitation of Liability
. The undersigned hereby absolutely, unconditionally
and irrevocably guarantees the punctual payment when due, whether
at scheduled maturity or on any date of a required prepayment or
by acceleration, demand or otherwise, of all Obligations of each
other Loan Party now or hereafter existing under or in respect of
the Loan Documents (including, without limitation, any
extensions, modifications, substitutions, amendments or renewals
of any or all of the foregoing Obligations), whether direct or
indirect, absolute or contingent, and whether for principal,
interest, premium, fees, indemnities, contract causes of action,
costs, expenses or otherwise (such Obligations being the
"Guaranteed Obligations"), and agrees to pay any and all expenses
(including, without limitation, fees and expenses of counsel)
incurred by the Administrative Agent or any other Secured Party
in enforcing any rights under this Guaranty Supplement, the
Subsidiary Guaranty or any other Loan Document. Without limiting
the generality of the foregoing, the undersigned's liability
shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by any other Loan Party
to any Secured Party under or in respect of the Loan Documents
but for the fact that they are unenforceable or not allowable due
to the existence of a bankruptcy, reorganization or similar
proceeding involving such other Loan Party.
The undersigned, and by its acceptance of this
Guaranty Supplement, the Administrative Agent and each other
Secured Party, hereby confirms that it is the intention of all
such Persons that this Guaranty Supplement, the Subsidiary
Guaranty and the Obligations of the undersigned hereunder and
thereunder not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar foreign,
federal or state law to the extent applicable to this Guaranty
Supplement, the Subsidiary Guaranty and the Obligations of the
undersigned hereunder and thereunder. To effectuate the
foregoing intention, the Administrative Agent, the other Secured
Parties and the undersigned hereby irrevocably agree that the
Obligations of the undersigned under this Guaranty Supplement and
the Subsidiary Guaranty at any time shall be limited to the
maximum amount as will result in the Obligations of the
undersigned under this Guaranty Supplement and the Subsidiary
Guaranty not constituting a fraudulent transfer or conveyance.
The undersigned hereby
unconditionally and irrevocably agrees
that in the event any payment shall be
required to be made to any Secured Party
under this Guaranty Supplement, the
Subsidiary Guaranty, the Parent Guaranty
or any other guaranty, the undersigned
will contribute, to the maximum extent
permitted by applicable law, such
amounts to each other Guarantor and each
other guarantor so as to maximize the
aggregate amount paid to the Secured
Parties under or in respect of the Loan
Documents.
Second: Obligations Under the Guaranty
. The undersigned hereby agrees, as of the date first
above written, to be bound as a Guarantor by all of the terms and
conditions of the Subsidiary Guaranty to the same extent as each
of the other Guarantors thereunder. The undersigned further
agrees, as of the date first above written, that each reference
in the Subsidiary Guaranty to an "Additional Guarantor" or a
"Guarantor" shall also mean and be a reference to the
undersigned, and each reference in any other Loan Document to a
"Subsidiary Guarantor" or a "Loan Party" shall also mean and be a
reference to the undersigned.
Third: Representations and Warranties
. The undersigned hereby makes each representation and
warranty set forth in Section 6 of the Subsidiary Guaranty to the
same extent as each other Guarantor.
Fourth: Delivery by Telecopier
. Delivery of an executed counterpart of a signature
page to this Guaranty Supplement by telecopier shall be effective
as delivery of an original executed counterpart of this Guaranty
Supplement.
Fifth: Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.
This Guaranty Supplement shall be governed by, and
construed in accordance with, the laws of the State of New York
and, to the extent applicable, the Bankruptcy Code.
The undersigned hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or any
federal court of the United States of America sitting in New York
City and, if the undersigned is a debtor or debtor in possession
in proceedings pending in the Bankruptcy Court, the Bankruptcy
Court, and any appellate court from any thereof, in any action
or proceeding arising out of or relating to this Guaranty
Supplement, the Subsidiary Guaranty or any of the other Loan
Documents to which it is or is to be a party, or for recognition
or enforcement of any judgment, and the undersigned hereby
irrevocably and unconditionally agrees that all claims in respect
of any such action or proceeding may be heard and determined in
any such New York State court or, to the extent permitted by law,
in such federal court or, as the case may be, the Bankruptcy
Court. The undersigned agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Guaranty Supplement or
the Subsidiary Guaranty or any other Loan Document shall affect
any right that any party may otherwise have to bring any action
or proceeding relating to this Guaranty Supplement, the
Subsidiary Guaranty or any of the other Loan Documents to which
it is or is to be a party in the courts of any other
jurisdiction.
The undersigned irrevocably and
unconditionally waives, to the fullest
extent it may legally and effectively do
so, any objection that it may now or
hereafter have to the laying of venue of
any suit, action or proceeding arising
out of or relating to this Guaranty
Supplement, the Subsidiary Guaranty or
any of the other Loan Documents to which
it is or is to be a party in any New
York State or federal court or the
Bankruptcy Court, as the case may be.
The undersigned hereby irrevocably
waives, to the fullest extent permitted
by law, the defense of an inconvenient
forum to the maintenance of such suit,
action or proceeding in any such court.
THE UNDERSIGNED HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO
ANY OF THE LOAN DOCUMENTS, THE ADVANCES
OR THE ACTIONS OF ANY SECURED PARTY IN
THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
Very truly yours,
[NAME OF ADDITIONAL GUARANTOR]
By
Title:
EXHIBIT G-1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IN RE: ?
?
STAGE STORES, INC., ? CASE NO. 0035078-H-2-11
A Delaware Corporation, ?
SPECIALTY RETAILERS, INC., ? CASE NO. 0035079-H-2-11
A Texas Corporation, and ?
SPECIALTY RETAILERS, INC. (NV),? CASE NO. 0035080-H-2-11
A Nevada Corporation, ?
? Chapter 11
DEBTORS. ? (Joint Administration
Requested)
INTERIM ORDER (I) AUTHORIZING POST-PETITION
SECURED SUPERPRIORITY FINANCING PURSUANT TO
BANKRUPTCY CODE SECTIONS 105(a), 362, 364(c)(1), 364(c)(2),
364(c)(3)
AND 364(d), (II) AUTHORIZING THE DEBTORS USE OF CASH COLLATERAL
PURSUANT TO BANKRUPTCY CODE SECTION 363(c), (III) GRANTING
ADEQUATE PROTECTION PURSUANT TO SECTIONS 363 AND 364 OF THE
BANKRUPTCY CODE, (IV) AUTHORIZING THE DEBTORS TO ENTER INTO,
AND APPROVING , THE RECEIVABLES PROGRAM TERMINATION
AGREEMENT, (V) AUTHORIZING THE DEBTORS TO ENTER INTO NEW
RECEIVABLES PURCHASE AND PLEDGE TRANSACTIONS AND (VI) SETTING
FINAL HEARING PURSUANT TO BANKRUPTCY RULES 4001(b) AND 4001(c)
THIS MATTER having come before the Court upon the
Motion (the "Motion") of Specialty Retailers, Inc., a Texas
corporation (the "Borrower"), Stage Stores, Inc., a Delaware
corporation (the "Parent Guarantor") and Specialty Retailers,
Inc., a Nevada corporation (the "Subsidiary Guarantor"), as
debtors and debtors in possession (collectively, the "Debtors")
seeking entry of an order:
SECTION 63.05 authorizing the Borrower to obtain credit and
incur debt secured by liens on property of the Debtors' estates
pursuant to sections 364(c)(2), 364(c)(3) and 364(d)(1) of Title
11, United States Code (the "Bankruptcy Code") and with priority
(subject to the Carve-Out, as defined in Paragraph 21 below) as
to administrative expenses, as provided in section 364(c)(1) of
the Bankruptcy Code;
SECTION 63.06 authorizing the Debtors to use cash collateral and
other collateral pursuant to sections 363(c) and 363(e) of the
Bankruptcy Code and Bankruptcy Rule 4001(b);
SECTION 63.07 authorizing the Debtors to establish that
financing arrangement (the "DIP Credit Facility") which is
contemplated by the Debtor-in-Possession Credit Agreement dated
as of June 2, 2000 (the "DIP Credit Agreement"; terms defined
therein and not otherwise defined herein being used herein as
therein defined) among the Borrower, the Parent Guarantor,
Citicorp U.S.A., Inc., as Collateral Agent and Administrative
Agent (the "Agent"), the lenders named therein (the "Lenders"),
substantially in the form annexed to the Motion as Exhibit B, and
to incur the Obligations as provided for in the DIP Credit
Agreement and the other DIP Loan Documents (as hereafter defined)
(the "Obligations");
SECTION 63.08 authorizing the Debtors to provide the Agent (for
the ratable benefit of the Agent and the Lenders) with Liens (as
defined in the DIP Credit Agreement) upon the Debtors' property
as provided in and as contemplated by the DIP Credit Agreement
and the Security Agreement (as defined in the DIP Credit
Agreement) (the DIP Credit Agreement, the Security Agreement and
all such instruments and documents as may be executed and
delivered in connection therewith or which relate thereto,
including, without limitation, the Subsidiary Guaranty in the
form of Exhibit E to the DIP Credit Agreement to be executed by
each Subsidiary Guarantor, collectively, the "DIP Loan
Documents"), as supplemented by this Order;
SECTION 63.09 authorizing the Debtors to grant the Agent (for
the ratable benefit of the Agent and the Lenders) a Super-
Priority Claim (as defined in Paragraph 18(a), below) over any
and all administrative expenses other than as set forth in
Paragraph 18(a), below;
SECTION 63.10 authorizing the Borrower to utilize the proceeds
of the first borrowing under the DIP Credit Facility to repay in
full the Debtors' obligations to Credit Suisse First Boston, as
the administrative agent and collateral agent for the lenders
(the "Prepetition 2000 Agent" and, together with such lenders,
the "Prepetition 2000 Lenders") under the Credit Agreement dated
as of March 6, 2000 among the Borrower, the Parent Guarantor, the
banks named therein and Credit Suisse First Boston, as
administrative agent, collateral agent, swingline bank and L/C
bank (as amended from time to time, the "Prepetition 2000 Credit
Agreement"), such obligations consisting of unpaid principal,
accrued and unpaid interest, and unpaid fees and expenses for
which the Debtors are responsible (collectively, the "Prepetition
2000 Obligations"), provided that such payment shall be without
prejudice to (A) the right, if any, of any Official Creditors'
Committee appointed in these proceedings to seek an order (i)
disallowing any claim of the Prepetition 2000 Lenders on account
of the Prepetition 2000 Credit Agreement, (ii) avoiding any
security or collateral interest in the assets of the Debtors
claimed by the Prepetition 2000 Lenders, (iii) modifying the
amount, validity, priority or extent of the Prepetition 2000
Lenders' liens or claims under the Prepetition 2000 Credit
Agreement and related loan documents, (iv) directing any party to
disgorge all or any part of any payment or transfer made by the
Borrower to the Prepetition 2000 Lenders in respect of the
Prepetition 2000 Credit Agreement, including the payment
authorized in Paragraph 6, below, or (v) providing any relief,
legal or equitable, or otherwise permitting any Official
Creditors' Committee to recover from the Prepetition 2000 Lenders
on account of the relationship between the Prepetition 2000
Lenders and the Debtors arising under, relating to or in
connection with the Prepetition 2000 Credit Agreement, in
accordance with the provisions of this Order, or (B) the right of
any party in interest to object to the terms of the DIP Credit
Facility in the manner provided for in Paragraph 34, below;
SECTION 63.11 authorizing the Borrower to provide adequate
protection to Credit Suisse First Boston, as the administrative
agent and collateral agent (the "Prepetition 1997 Agent") for the
lenders under the Amended and Restated Credit Agreement dated as
of June 17, 1997 (as amended from time to time, the "Prepetition
1997 Credit Agreement") among the Borrower, the Parent Guarantor,
the banks named therein (together with the Prepetition 1997
Agent, the "Prepetition 1997 Lenders"), subject to the terms and
conditions set forth in Paragraphs 9, 10 and 11 of this Order and
the Intercreditor Arrangement (as hereafter defined), on account
of the prepetition debt under the Prepetition 1997 Credit
Agreement and all collateral and ancillary documents executed in
connection therewith to the extent of any diminution in the value
of the Prepetition 1997 Lenders' interests in the Prepetition
Collateral (as defined in Paragraph E below) resulting from the
priming liens and security interests to be granted herein
pursuant to Bankruptcy Code section 364(d) to secure the DIP
Financing, the use, sale or lease of the Prepetition Collateral
(as defined in Paragraph E below), the imposition of the
automatic stay pursuant to Bankruptcy Code section 362(a), or the
transfer of the Receivables pursuant to the Termination Agreement
(as hereafter defined); and
SECTION 63.12 approving the agreement relating to the
termination of the Receivables Program (the "Termination
Agreement", a copy of which is annexed to the Motion as Exhibit
B) among the Borrower, the trustee (the "Trustee") of the SRI
Receivables Master Trust (the "Receivables Trust") and SRI
Receivables Purchase Co., Inc., and authorizing the Borrower to
utilize the proceeds of the first borrowing under the DIP Credit
Facility to fund payments in connection with the Termination
Agreement.
SECTION 63.13 authorizing the Borrower to perform in the
ordinary course of its business the Receivables Transfer
Agreement, dated as of August 1, 1998 (as amended from time to
time, the "Receivables Transfer Agreement"), with Granite
National Bank, N.A., concerning the purchase of private label
credit card receivables.
It appearing that absent the relief requested herein, the
Debtors will suffer immediate and irreparable harm; and it
further appearing that notice of the Motion is sufficient and
complies with the requirements of Bankruptcy Rules 4001(c) and
4001(d) and BLR 4001(b) and (c); and for good cause shown;
IT IS HEREBY FOUND THAT:
(a) On June 1, 2000 (the "Petition Date"), each of the Debtors
filed a voluntary petition under chapter 11 of the Bankruptcy
Code, 11 U.S.C. 101 et seq.
(b) The Debtors have continued in the management and operation
of their businesses and properties as debtors in possession
pursuant to Bankruptcy Code sections 1107 and 1108. No trustee
or examiner has been appointed in these cases, and no official
creditors' committee has been formed as of the date hereof.
(c) This Court has jurisdiction, pursuant to 28 U.S.C. 157(b)
and 1334, over these proceedings, and over the persons and
property affected hereby.
(d) Without prejudice to the rights of any Official Creditors'
Committee (but subject to the limitations thereon described below
in decretal Paragraph 11), the Debtors admit that, in accordance
with the terms of the Prepetition 1997 Credit Agreement, the
Debtors are truly and justly indebted to the Prepetition 1997
Lenders, without defense, counterclaim or offset of any kind, and
that as of the Petition Date, (i) the Borrower was liable to the
Prepetition 1997 Lenders in the aggregate principal amount of
approximately $172 million, plus contingent claims, interest,
commitment, agents' and other fees, and costs, charges and
expenses, in respect loans made by the Prepetition 1997 Lenders
to the Borrower pursuant to the Prepetition 1997 Credit Agreement
(the "Prepetition 1997 Lender Claim"), (ii) the Borrower was
contingently liable to the Prepetition 1997 Lenders in the
aggregate principal amount of approximately $27.3 million in
respect of letters of credit issued pursuant to the Prepetition
1997 Credit Agreement and which remained outstanding as of the
Petition Date, and (iii) each of the Subsidiary Guarantors was
contingently liable to the Prepetition 1997 Lenders pursuant to
the Subsidiary Guaranties.
(e) Without prejudice to the rights of any Official Creditors'
Committee (but subject to the limitations thereon described below
in decretal Paragraph 11, and further subject to the
qualifications in the last sentence of this paragraph), for the
purposes of this Order, the Debtors further admit that the
Prepetition 1997 Obligations are secured by enforceable liens and
security interests granted by the applicable Debtors to the
Prepetiton 1997 Agent, for the ratable benefit of the Prepetition
1997 Lenders, upon and in among other things (a) (i) all
Equipment (capitalized terms used in this Paragraph E, but not
otherwise defined in this Paragraph E shall have the meaning set
forth in the Prepetition 1997 Credit Agreement), (ii) all
Contracts and Contract Rights arising thereunder, (iii) all Marks
and the goodwill symbolized by the Marks, (iv) all Patents and
Copyrights, (v) all computer programs and intellectual property
rights therein and all other proprietary information including
trade secrets, (vi) the right to sue for past infringement of the
Prepetition Collateral in clauses (iii) through (v) above, (vii)
all other General Intangibles and Instruments, (viii) the L/C
Cash Collateral Account, all funds and investments held in the
L/C Cash Collateral Account and all certificates and instruments
evidencing the L/C Cash Collateral Account, (ix) all interest,
dividends, cash, instruments and other property received in
exchange for the collateral comprising the L/C Cash Collateral
Account, (x) all Fixtures, (xi) all Inventory (to secure an
amount equal to the difference between $50 million of borrowing
under the Prepetition 1997 Credit Agreement minus the amount of
indebtedness under the Prepetition 2000 Credit Agreement
outstanding on the date of the occurrence of a event of default
thereunder), (xii) the Account and all funds held therein or
credited thereto, (xiii) the Custodial Account and all Security
Entitlements, Financial Assets, Investment Property and other
property credited thereto, (xiv) all other tangible personal
property, (xv) all books and records relating to any of the
property described in clauses (i) through (xiv) above, and (xvi)
all proceeds and products of any Collateral referred to in
clauses (i) through (xv) above, pursuant to the Security
Agreement, dated as of June 17, 1997, as amended by the Amended
and Restated Security Agreement, dated as of March 6, 2000, among
the Borrower, the Parent Guarantor, Specialty Retailers, Inc.
(NV), and Credit Suisse First Boston as Collateral Agent (the
"Prepetition Security Agreement"), (b) all issued and outstanding
shares of capital stock owned by Specialty Retailers, Inc. or
Stage Stores, Inc., including, but not limited to, the stock of
SRI Receivables Purchase Company, Inc. and all promissory notes
issued to Specialty Retailers, Inc. or Stage Stores, Inc.,
including the Intercompany Note among Stage Stores, Inc. and
Specialty Retailers, Inc. pursuant to the Pledge Agreement, dated
as of June 17, 1997, among Specialty Retailers, Inc., Stage
Stores, Inc. and Credit Suisse First Boston as Collateral Agent
(the "Pledge Agreement"), (c) all of the right, title and
interest to all trademarks, trade names, corporate names, company
names, business names, fictitious business names, trade dress,
trade style, service marks, certification marks, collective
marks, logos, other sources of business identifiers, designs and
general intangibles of a like nature and all registrations
renewals and application relating to the foregoing, the right to
sue for past infringement of the foregoing and the proceeds of
the foregoing, including, without limitation, license royalties,
income, payments, claims, damages and proceeds of suit pursuant
to the Trademark Security Agreement, dated as of June 17, 1997,
among Specialty Retailers, Inc., Stage Stores, Inc., and Credit
Suisse First Boston as Collateral Agent (the "Trademark Security
Agreement"), (d) all real property listed in Exhibit A to the
Deed of Trust, Assignment, Security Agreement and Financing
Statement, dated as of June 17, 1997, among Specialty Retailers,
Inc., Kenneth Krauss and Credit Suisse First Boston as Collateral
Agent (the "Mortgage") and (e) other property pledged to or
otherwise subject to a lien or security interest in favor of the
Prepetition 1997 Agent (collectively, the "Prepetition
Collateral"), which, for avoidance of doubt does not include
Receivables conveyed under the Receivable Program Documents.
Notwithstanding the preceding sentence, with respect to the Liens
and security interests granted to secure the Prepetition 1997
Obligations, such Liens and security interests granted for the
first time on or about March 6, 2000 (the "March 6 Collateral")
in the Prepetition Security Agreement, are, for all purposes
involving the Debtors (but without prejudice to any other party),
enforceable and unavoidable to the extent the Prepetition 1997
Obligations (including issued letters of credit which are drawn
as of the Petition Date and/or subsequently drawn) as of the
Petition Date exceed the total amount of the Prepetition 1997
Obligations (including issued and undrawn letters of credit) as
of March 6, 2000, but in no event in an amount greater than $12
million (the "Balance").
(f) The Prepetition 1997 Lenders are entitled, pursuant to
Bankruptcy Code sections 361, 363(c), 363(e) and 364(d), to
adequate protection of their interest in the Prepetition
Collateral (including their interest in the Debtors' cash which
constitutes proceeds of the Prepetition Collateral and which is
therefore cash collateral within the meaning of section 363 of
the Bankruptcy Code (the "Cash Collateral")), to the extent of
any diminution in value of the Prepetition Collateral resulting
from the use, sale or lease thereof, the imposition of the
automatic stay, the transfer of the Receivables pursuant to the
Termination Agreement or the priming of the Liens on the
Prepetition Collateral securing the Prepetition 1997 Obligations
by the Liens in favor of the Agent and Lenders granted in this
Order and the DIP Loan Documents pursuant to Bankruptcy Code
section 364(d). The Debtors have agreed to provide adequate
protection to the Prepetition 1997 Lenders on the terms and
conditions set forth in Paragraphs 9, 10 and 11 of this Order,
which terms and conditions are fair and reasonable and were
negotiated in good faith and at arm's length. The provision of
adequate protection as set forth in Paragraphs 9, 10 and 11 is in
the Debtors' best interests.
(g) Without prejudice to the rights of any Official Creditors'
Committee (but subject to the limitations thereon described below
in decretal Paragraph 8), the Debtors admit that, in accordance
with the terms of the Prepetition 2000 Credit Agreement, the
Debtors are truly and justly indebted to the Prepetition 2000
Lenders, without defense, counterclaim or offset of any kind, and
that as of the Petition Date, (i) the Borrower was liable to the
Prepetition 2000 Lenders in the aggregate principal amount of
approximately $29,950,000, plus contingent claims, interest,
commitment, agents' and other fees, and costs, charges and
expenses, in respect loans made by the Prepetition 2000 Lenders
to the Borrower pursuant to the Prepetition 2000 Credit Agreement
(the "Prepetition 2000 Lender Claim"), in respect loans made by
the Prepetition 2000 Lenders to the Borrower pursuant to the
Prepetition 2000 Credit Agreement, and (ii) each of the 2000
Guarantors was contingently liable to the Prepetition 2000
Lenders pursuant to the 2000 Guaranties.
(h) Without prejudice to the rights of any Official Creditors'
Committee (but subject to the limitations thereon described below
in decretal Paragraph 8), for the purposes of this Order, the
Debtors further admit that the Prepetition 2000 Obligations are
secured, pursuant to the Security Agreement, dated as of March 6,
2000 (the "Inventory Security Agreement") among the Prepetition
2000 Agent and the assignors thereunder, by enforceable liens and
security interests granted by the applicable Debtors to the
Prepetition 2000 Agent, for the ratable benefit of the
Prepetition 2000 Lenders, upon and in the certain collateral
identified in the Inventory Security Agreement (the "Prepetition
2000 Collateral"), and that the value of the Prepetition 2000
Collateral as of the Petition Date exceeds the value as of the
Petition Date of the Prepetition 2000 Claim.
(i) Notwithstanding the existing security interest and lien in
favor of the Prepetition 1997 Lenders on the Prepetition
Collateral, the Prepetition 1997 Agent has, in its individual
capacity, consented to the entry of this Order, the Debtors' use
of the Cash Collateral, the transfer to the Debtors of the
receivables that are owned by the Receivables Trust (the
"Receivables") in accordance with the Termination Agreement, the
approval of the Intercreditor Arrangement (the "Intercreditor
Arrangement", a copy of which is annexed to this Order as Exhibit
A), which further specifies the respective rights of the DIP
Lenders and the Prepetition 1997 Lenders in respect of the
Collateral and the Prepetition Collateral, and the granting to
the DIP Lenders of a first priority, senior, perfected security
interest in and, with respect to the Prepetition Collateral, a
priming lien on, all of the Collateral (as defined below) other
than (i) the real property housing the Borrower's distribution
center located at 506 Beal Boulevard, Jacksonville. Texas and
(ii) the real property housing the Borrower's credit card center
located at 1020 Willow Creek, Jacksonville, Texas (together, the
"Excluded Real Property"), in respect of which the Prepetition
1997 Agent has, in its individual capacity, consented to the
granting to the DIP Lenders of a second, junior perfected
security interest and lien, all subject to the terms and
conditions set forth in this Order and the Intercreditor
Arrangement.
(j) Notwithstanding the existing security interest and lien in
favor of the Prepetition 1997 Lenders on the Prepetition
Collateral, the Prepetition 1997 Lenders have not objected to the
entry of this Order, the Debtors' use of the Cash Collateral, the
transfer of the Receivables in accordance with the Termination
Agreement, the approval of the Intercreditor Arrangement, or the
granting to the DIP Lenders of a first priority, senior,
perfected security interest in and, with respect to the
Prepetition Collateral, a priming lien on, all of the Collateral
(as defined below) other than the Excluded Real Property (in
respect of which the Prepetition 1997 Lenders have not objected
to the granting to the DIP Lenders of a second, junior perfected
security interest and lien), all subject to the terms and
conditions set forth in this Order and the Intercreditor
Arrangement.
(k) An immediate need exists for the Debtors to obtain funds
with which to purchase inventory, continue their operations, and
administer and preserve the value of their estates. The ability
of the Debtors to finance their operations requires the
additional availability of working capital, the absence of which
would immediately and irreparably harm the Debtors, their
estates, and their creditors and the possibility for a successful
reorganization.
(l) The Debtors are unable to obtain unsecured credit allowable
under Bankruptcy Code section 503(b)(1) as an administrative
expense.
(m) The Debtors are also unable to obtain secured credit,
allowable only under Bankruptcy Code sections 364(c)(2),
364(c)(3) and 364(d), except under the terms and conditions
provided in this Order. The Debtors are unable to obtain credit
for borrowed money without the Debtors' granting to the Agent
(for the ratable benefit of the Agent and the Lenders) (i) Liens
on various of the assets of the Debtors pursuant to Bankruptcy
Code sections 364(c)(2), 364(c)(3), and 364(d) (which liens the
Lenders have required to be free and clear of, and not subject
to, any restrictions otherwise applicable to the disposition of
such collateral which relate to, or are otherwise imposed by,
trademark, copyright, patent, licensing or similar laws relating
to intellectual property rights, or any other party's rights
under any such law, including any such rights which may arise
upon foreclosure of a security interest in any trademark,
copyright, patent, mark, license or similar intellectual property
right or interest of the Debtors (collectively, the "IP
Restrictions")), and (ii) a super-priority administrative expense
claim status pursuant to section 364(c)(1) of the Bankruptcy Code
and as provided by this Order. As a condition precedent to the
DIP Financing, the Lenders have required that upon the occurrence
of an Event of Default under any of the DIP Loan Documents,
subject to required notice, the Agent may exercise any remedies
provided thereunder or under applicable law, notwithstanding any
such otherwise applicable IP Restrictions.
(n) The relief requested in the Motion is necessary, essential,
and appropriate for the continued operation of the Debtors'
businesses and the management and preservation of their
properties.
(o) It is in the best interest of Debtors' estates to be allowed
to establish the DIP Credit Facility contemplated by the DIP
Credit Agreement and the other DIP Loan Documents.
(p) The terms and conditions of the DIP Credit Facility,
including those which provide for the payment of interest to, and
fees of, the Agent (for the benefit of the Agent and the Lenders)
at the times, and in the manner provided under the DIP Credit
Facility, are fair, and reasonable, and are believed by the
Debtors to be the best available under the circumstances.
(q) The DIP Credit Agreement was negotiated in good faith and at
arm's length between the Debtors, on the one hand, and the Agent
and the Lenders. Credit to be extended under the DIP Credit
Facility will be so extended in good faith, in consequence of
which the Agent and the Lenders are entitled to the protection
and benefits of Bankruptcy Code section 364(e).
(r) The Termination Agreement was negotiated in good faith and
at arm's length among SRI Receivables Purchase Co., Inc., the
Borrower and the Trustee, in consequence of which the Trustee is
entitled to the protection and benefits of Bankruptcy Code
section 364(e). Authorization of the Debtors to perform all acts
and to make, execute and deliver all instruments and documents
which may be required or necessary for the performance by any of
the Debtors thereunder, including the authorization for the
Debtors to utilize the proceeds of the first borrowing under the
DIP Credit Facility to fund payments in connection with the
Termination Agreement, in accordance with Paragraph 16, is in the
best interests of the Debtors, their creditors and their estates.
(s) The obligations under the Receivables Transfer Agreement
between the Borrower and Granite National Bank, N.A. shall be
performed by the Borrower in the ordinary course of its business.
Authorization of the Debtors to perform all acts and to make,
execute and deliver all instruments and documents which may be
required or necessary for the performance by any of the Debtors
thereunder, consistent with the DIP Loan Documents, is in the
best interests of the Debtors, their creditors and their estates.
(t) The approval of the Intercreditor Arrangement and its
application to the Prepetition 1997 Agent and the Prepetition
1997 Lenders is a condition precedent to the granting of adequate
protection hereunder.
(u) The notice of the Hearing at which the Order was entered,
which notice was provided by the Debtors to the Office of the
United States Trustee, the Prepetition 1997 Agent and counsel
thereto, the Prepetition 1997 Lenders, the Prepetition 2000 Agent
and counsel thereto, the Prepetition 2000 Lenders, the Trustee
and the twenty (20) largest unsecured creditors of the Debtors
constitutes adequate notice under the circumstances in accordance
with Bankruptcy Rule 4001(c), BLR 4001(b) and (c) and Bankruptcy
Code section 102(1), as required by Bankruptcy Code sections
364(c) and 364(d) in light of the emergency nature of the relief
requested in the Motion.
(v) Good and sufficient cause has been shown for the entry of
this Order. Among other things, the entry of this Order will
enable the Debtors to continue the operation of their business,
increase the possibility for a successful reorganization, avoid
disputes with the Prepetition 1997 Lenders with respect to
adequate protection and be in the best interest of the Debtors,
their creditors, and their estates.
NOW THEREFORE, on the Motion of the Debtors and the
record before the Court with respect to the Motion made by the
Debtors, and with the consent of the Debtors and the Prepetition
Agent in its individual capacity, and in the absence of any
objection from the Prepetition 1997 Lenders and the Prepetition
2000 Lenders (after notice and a hearing) to the form and entry
of this Order (including the Intercreditor Arrangement), and good
cause appearing, it is
ORDERED:
APPROVAL OF AND AUTHORIZATION AS TO BORROWING
AND GRANTING OF LIENS AND SECURITY INTERESTS
(i) The terms and the conditions of the DIP Credit Facility are
hereby approved. The Debtors are authorized to:
First: Establish the DIP Credit Facility;
Second: Execute each of the DIP Loan Documents to which any
Debtor is a party;
Third: With respect to the Borrower, borrow up to $385 million
(of which up to $150 million may be borrowed under the Term
Facility and the balance may be borrowed under the Working
Capital Facility (each as defined in the DIP Credit Agreement))
under the DIP Credit Facility with a sublimit of $40 million with
respect to letters of credit; and
Fourth: Pay all fees and charges required under the DIP Loan
Documents.
(ii) The Debtors are hereby authorized and empowered to do and
perform all acts and to make, execute, and deliver all
instruments and documents which may be requisite or necessary for
the performance by the Debtors under the DIP Loan Documents and
the creation and perfection of the Liens described in and
provided for by the DIP Loan Documents, including, without
limitation, all of the DIP Loan Documents and the Acknowledgement
to the Intercreditor Arrangement.
(iii) As security for the Obligations, the Agent (for the
ratable benefit of the Agent and the Lenders) shall have and is
hereby granted (effective upon the date of entry of this Order)
valid and perfected security interests in, and liens upon (the
"Liens"), all present and after-acquired property of the Debtors
of any nature whatsoever, including without limitation, all
collateral described in the Security Agreement, all cash
contained or maintained in any account maintained by any Debtor
of any nature whatsoever and the proceeds of all causes of action
(other than causes of action arising under the Bankruptcy Code)
existing as of the Petition Date (collectively, with all proceeds
and products of any or all of the foregoing, the "Collateral"):
First: pursuant to Bankruptcy Code section 364(c)(2), a first
priority, perfected Lien upon all of the Debtors' right, title
and interest in, to and under all Collateral that is not
otherwise encumbered by a validly perfected security interest or
lien on the Petition Date;
Second: pursuant to Bankruptcy Code section 364(d)(1), a first
priority, senior, perfected priming lien upon all of the Debtors'
right title and interest in, to and under the Prepetition
Collateral except for the Excluded Real Property; and
Third: pursuant to Bankruptcy Code section 364(c)(3), a second
priority, junior, perfected lien upon all of the debtors' right,
title and interest in, to and under all Collateral (excluding the
Prepetition Collateral but including the Excluded Real Property)
which is subject to a Permitted Lien, including without
limitation, a validly perfected security interest or lien in
existence as of the Petition Date or a valid lien perfected (but
not granted) after the Petition Date to the extent post-Petition
Date perfection in respect of prepetition claims is expressly
permitted under the Bankruptcy Code (the "Permitted Subsequently
Perfected Liens"), provided that the Liens granted in favor of
the Agent and the Lenders shall be senior to any Permitted Lien
which is expressly stated in the Credit Agreement to be junior to
the Liens in favor of the Agent and the Lenders. For the
avoidance of doubt, the Liens upon the Collateral granted to the
Agent shall be free and clear of, and not subject to, any
otherwise applicable IP Restrictions, and notwithstanding
anything to the contrary herein, in the Intercreditor Arrangement
or in any order of the Court, the Liens granted in favor of the
DIP Lenders to secure the Obligations (other than the junior
Liens in respect of the Excluded Real Property) are senior in all
respects to the Liens in existence or to be granted in favor of
the Prepetition 1997 Lenders in respect of all claims now in
existence or hereafter arising under the Prepetition 1997 Credit
Agreement and the related loan documents; provided, that
notwithstanding the foregoing, the Liens created and granted to
the Agent shall be subject to (a) the Carve-Out (as hereafter
defined) and (b) the statutory fees of the United States Trustee
as provided in 28 U.S.C. 1930(a) and the fees to the Clerk of
the Bankruptcy Court (collectively, the "Mandatory Fees").
(iv) The automatic stay imposed under Bankruptcy Code section
362(a)(4) is hereby modified as necessary to permit the Debtors
to grant the aforesaid Liens and the Replacement Liens and to
perform the Debtors' liabilities and Obligations to the Agent and
the Lenders under the DIP Credit Facility.
(v) Each officer of the Debtors as may be so authorized by the
Board of Directors of each of the Debtors, acting singly, is
hereby authorized to execute and deliver each of the DIP Loan
Documents, such execution and delivery to be conclusive of their
respective authority to act in the name of and on behalf of the
Debtors.
(vi) At closing of the DIP Facility, the Borrower shall pay to
the Prepetition 2000 Lenders on account of the Prepetition 2000
Obligations:
First: The principal balance of the Borrower's obligations to
the Prepetition 2000 Lenders of $29,950,000.
Second: The aggregate of accrued and unpaid interest at the non-
default rate owed to the Prepetition 2000 Lenders as of the
Petition Date of $248,805.72.
Third: The aggregate of accrued and unpaid fees and expenses
of the Prepetition 2000 Lenders for which the Borrower is
responsible (which aggregate shall be broken down by category).
Fourth: A per diem interest amount from the Petition Date to
the date of closing of $10,228.83 per day.
At such time as the conditions precedent to the initial extension
of credit under DIP Credit Facility have been satisfied (which
conditions are referenced in Article 3 of the DIP Credit
Agreement), the Borrower shall utilize the proceeds of the first
borrowing under the DIP Credit Facility to repay the Borrower's
obligations to the Prepetition 2000 Lenders consisting of unpaid
principal, accrued and unpaid interest, and unpaid fees and
expenses for which the Borrower is responsible under the terms of
the Prepetition 2000 Credit Agreement.
(vii) Upon the receipt by the Prepetition 2000 Lenders of the
proceeds of the wire transfer of all amounts owed to the
Prepetition 2000 Lenders under the Prepetition 2000 Credit
Agreement:
First: Any lien or security interest granted in favor of the
Prepetition 2000 Lenders securing the Prepetition 2000
Obligations on any asset of the Debtors or otherwise shall be
deemed (i) to the extent permitted under applicable law, assigned
and transferred to the Agent (for the ratable benefit of the
Agent and the Lenders) and the Agent shall be subrogated to all
rights of the Prepetition 2000 Lenders therein, and (ii) in
respect of the Prepetition 2000 Obligations only, released,
terminated and extinguished and of no force or effect whatsoever.
Second: All claims of the Prepetition 2000 Lenders in respect
of the Prepetition 2000 Obligations against the Debtors shall be
deemed (i) to the extent permitted under applicable law, assigned
and transferred to the Agent (for the ratable benefit of the
Agent and the Lenders) and the Agent shall be subrogated to all
rights of the Prepetition 2000 Lenders therein, and (ii) in
respect of the Prepetition 2000 Obligations only, released,
terminated, extinguished, and of no force or effect whatsoever.
Third: The Prepetition 2000 Agent and the Prepetition 2000
Lenders shall forthwith deliver to the Agent, any and all
property of the Debtors that is in the possession or control of
the Prepetition 2000 Lenders securing the Prepetition 2000
Obligations.
Fourth: Nothing in this Paragraph 7 shall preclude any
Prepetition 2000 Lender from reinstating a claim or any lien
previously securing the Prepetition 2000 Obligations to the
extent any transfer made in respect of the Prepetition 2000
Obligations shall be avoided by final order; provided, that any
such reinstated claim or lien shall be subordinated to, and
junior in priority to, the Obligations and Liens of the Agent and
the Lenders, and for all purposes hereof shall be subject to the
terms of the Intercreditor Arrangement.
(viii) The payment to the Prepetition 2000 Lenders in respect
of the Prepetition 2000 Obligations, as provided in Paragraph 6,
above, shall be without prejudice to (A) the right, if any, of
any party in interest to object to the terms of the DIP Credit
Facility in the manner provided for in Paragraph 34, below, or
(B) the right, if any, of any Official Creditors' Committee
appointed in these cases (the "Creditors' Committee") to seek
entry of an order (i) disallowing in whole or in part the
Prepetition 2000 Lenders' claims, (ii) avoiding in whole or in
part any security or collateral interest in the assets of the
Debtors claimed by the Prepetition 2000 Lenders in Prepetition
2000 Collateral, (iii) modifying the amount, validity, priority
or extent of the Prepetition 2000 Lenders' liens or claims, (iv)
directing the Prepetition 2000 Lenders to disgorge all or any
part of any payment or transfer made by the Borrower or any other
Debtor under the Prepetition 2000 Credit Agreement or as
authorized pursuant to Paragraph 6, above, or (v) providing any
other relief of any type or nature whatsoever, legal or
equitable, against the Prepetition 2000 Lenders or otherwise
permitting recovery from the Prepetition 2000 Lenders on account
of their relationship with the Debtors arising under, relating to
or in connection with the Prepetition 2000 Credit Agreement prior
to the commencement of these proceedings, provided that the
Creditors' Committee shall have one hundred twenty (120) days
from the date of appointment of counsel to the Creditors'
Committee within which to file any such objection or commence any
such action, whether with respect to the Prepetition 2000
Lenders' Claim or Liens or otherwise. Any such objection or
action shall set forth with reasonable particularity the basis
for such objection or action and the reason why the Prepetition
2000 Lenders' Claim should not be paid in full accordance with
the DIP Credit Facility and this Order. If no such objection or
action is filed on or before one hundred twenty (120) days after
the date of appointment of counsel to the Creditors' Committee,
the Prepetition 2000 Lenders' Claim shall be allowed as a secured
claim within the meaning of Bankruptcy Code section 506 for all
purposes in connection with these cases. Thereafter, any and all
objections or actions (including, but not limited to, those under
Bankruptcy Code sections 510, 544, 547, 548 and/or 550) by any
party (including, without limitation, the Creditors' Committee
and any subsequently appointed trustee, whether in a chapter 11
or chapter 7 case), with respect to the validity, sufficiency,
extent, perfection, refinancing or avoidance of the Pre-Petition
Lenders' liens in the Prepetition 2000 Collateral or the
Prepetition 2000 Lenders' Claim, or to any matters set forth in
subclauses (i) through (v) above shall be forever barred.
(ix) The Debtors are hereby authorized to use the Cash Collateral
and other property in which the Prepetition 1997 Agent has an
interest pursuant to Bankruptcy Code sections 363(b) and 363(c)
in accordance with the terms and conditions of the Credit
Agreement and this Order. As adequate protection to the
Prepetition 1997 Agent and the Prepetition 1997 Lenders to the
extent of any diminution in value of the Prepetition 1997
Lenders' interests in the Prepetition Collateral resulting from
(i) the use, sale or lease of the Prepetition Collateral, (ii)
the imposition of the automatic stay, (iii) the transfer of the
Receivables in accordance with the Termination Agreement or (iv)
the priming of the Liens on the Prepetition Collateral by the
Liens in favor of the Agent and Lenders granted in this Order and
the DIP Loan Documents pursuant to Bankruptcy Code section
364(d), the Prepetition 1997 Agent and the Prepetition 1997
Lenders shall be and hereby are granted (effective upon the date
of this Order and without the necessity of the execution by the
Debtors of mortgages, security agreements, pledge agreements,
financing statements or otherwise) valid and perfected,
replacement security interests in, and liens upon (the
"Replacement Liens") all of the Debtors' right, title and
interest in, to and under the Collateral, subject only to (w) the
Carve-Out, (x) the Mandatory Fees, (y) Liens granted pursuant to
this Order and the DIP Loan Documents to the Agent and the
Lenders to secure the Obligations and (z) any Permitted
Subsequently Perfected Liens and any validly perfected liens
which are or will be senior (after giving effect to this Order)
to the Liens granted to the Agent and the Lenders pursuant to
this Order and the DIP Loan Documents, and in all cases subject
to the terms of the Intercreditor Arrangement.
(x) As additional adequate protection for the Prepetition 1997
Lenders (the "Additional Adequate Protection"), the Debtors will
(i) pay monthly interest on the Balance at the 30-day Eurodollar
Rate (as defined in the DIP Credit Agreement), determined 30 days
prior to the date of payment, plus 3.25% per annum, (ii) on
January 31, 2001, pay the Balance to the Prepetition 1997
Lenders, subject to the restrictions set forth in section 5.02(j)
of the DIP Credit Agreement, (iii) provide to the Prepetition
1997 Lenders the same reports the Debtors are required to provide
to the Agent under the DIP Loan Documents, and the Agent shall
provide to the Prepetition 1997 Agent a copy of the Hilco final
report and the Debtors shall provide reasonable access to the
Prepetition 1997 Agent to the Debtors' books and records to
determine the value of the receivables owned by the Receivables
Trust as of the Petition Date, (iv) reimburse on a current basis
reasonable attorney's fees and the pre-petition fees of Arthur
Andersen & Co. (in the approximate amount of $40,000), (v) if
requested by the Prepetition 1997 Lenders, reimburse reasonable
fees of such other professionals hired by the Prepetition 1997
Lenders to value the security interests in the Receivables Trust
previously granted to the Prepetition 1997 Lenders, but affected
by the termination of the Receivables Trust (provided, that any
payments made pursuant to clauses (iv) and (v) shall not exceed
in the aggregate $1 million), and (vi) obtain a "First Day Order"
that directs the Debtors to make payments in the ordinary course
of business in respect of all undisputed goods delivered after
the Petition Date. The payment of interest and fees of
professionals as provided in this paragraph shall be subject to
the right of any party to seek from the Bankruptcy Court a
recharacterization, at a later date, of such payments pursuant to
Bankruptcy Code section 506 such that such payments may be
applied to principal.
(xi) The granting of the Replacement Liens to the Prepetition
1997 Lenders pursuant to Paragraph 9 above shall be without
prejudice to (A) the right of any party in interest to object to
the terms of the DIP Credit Facility in the manner provided for
in Paragraph 34, below, or (B) the right, if any, of the
Creditors' Committee, if any, to seek entry of an order (i)
disallowing the Prepetition 1997 Lenders' claims, (ii) avoiding
any security or collateral interest in the assets of the Debtors
claimed by the Prepetition 1997 Lenders in the Prepetition
Collateral, (iii) modifying the amount, validity, priority or
extent of the Prepetition 1997 Lenders' Liens or claims, or (iv)
providing any other relief of any type or nature whatsoever,
legal or equitable, against the Prepetition 1997 Lenders or
otherwise permitting recovery from the Prepetition 1997 Lenders
on account of their relationship with the Debtors arising under,
relating to or in connection with the Prepetition 1997 Credit
Agreement prior to the commencement of these proceedings,
provided that the Creditors' Committee shall have one hundred
twenty (120) days from the date of appointment of counsel to the
Creditors' Committee within which to file any such objection or
commence any such action, whether with respect to the Prepetition
1997 Lenders' Claim or Liens or otherwise. Any such objection or
action shall set forth with reasonable particularity the basis
for such objection or action. If no such objection or action is
filed on or before one hundred twenty (120) days after the date
of appointment of counsel to the Creditors' Committee, the
Prepetition 1997 Lenders' Claim shall be allowed as a secured
claim within the meaning of Bankruptcy Code section 506 for all
purposes in connection with these cases. Thereafter, any and all
objections or actions (including, but not limited to, those under
Bankruptcy Code sections 510, 544, 547, 548 and/or 550) by any
party (including, without limitation, the Creditors' Committee
and any subsequently appointed trustee), with respect to the
validity, sufficiency, extent, perfection, refinancing or
avoidance of the Pre-Petition Lenders' liens in the Prepetition
Collateral or the Prepetition 1997 Lenders' Claim, or to any
matters set forth in subclauses (i) through (iv) above shall be
forever barred. Nothing in this paragraph shall operate to
preclude any party in interest from contesting or disputing at
any time whether the Prepetition 1997 Lenders experienced a
diminution in value of their interests in the Prepetition
Collateral.
(xii) This Order shall be sufficient and conclusive evidence
of the validity, perfection, and priority of (x) the Agent's
Liens upon the Collateral to secure all Obligations incurred
under the DIP Loan Documents, and of (y) the Replacement Liens,
without the necessity of filing or recording any financing
statement or other instrument or document or notification which
may otherwise be required under the law of any jurisdiction or
the taking of any other action to validate or perfect the Liens
of the Agent and the Prepetition 1997 Agent in and to the
Collateral or to entitle the Agent or the Prepetition 1997 Agent
to the priorities granted herein, provided that the Debtors may
execute and the Agent may file or record financing statements or
other instruments or provide notice to evidence and to perfect
the Liens authorized hereby, provided further that no such filing
or recordation or notification shall be necessary or required in
order to create or perfect any such Lien.
(xiii) The Agent, on behalf of itself (for the ratable
benefit of the Lenders) and the Prepetition 1997 Agent, in its
discretion, may file a xerographic copy of this Order as a
financing statement with any recording officer designated to file
financing statements or with any registry of deeds or similar
office in any jurisdiction in which the Debtors have real or
personal property.
(xiv) The DIP Credit Agreement and each of the DIP Loan
Documents, respectively, shall constitute and evidence the valid
and binding Obligations of each of the Debtors, which Obligations
shall be enforceable against each of the Debtors in accordance
with their terms.
(xv) The Termination Agreement is hereby approved, and the
Debtors are hereby authorized to perform all acts and to make,
execute and deliver all instruments and documents which may be
required or necessary for the performance by any of the Debtors
thereunder. The Debtors are hereby authorized and directed to
utilize the proceeds of the first borrowing under the DIP Credit
Facility to fund payments in connection with the Termination
Agreement, in accordance with Paragraph 16, below.
(xvi) Promptly following the entry of this Order and
satisfaction of the conditions precedent to the Termination
Agreement, the Borrower shall utilize the proceeds from the first
borrowing under the DIP Credit Facility to fund the payments
required under the Termination Agreement. Upon the receipt by
the Trustee of the proceeds of the wire transfer of all amounts
owed to the Trustee on account of the termination of the
Receivables Program:
First: Any right, title or interest, including any lien or
security interest of the Trustee and the Receivables Trust in or
on any asset of the Debtors shall be deemed (i) to the extent
permitted under applicable law, assigned and transferred to the
Agent (for the ratable benefit of the Agent and the Lenders) and
the Agent shall be subrogated to all rights of the Trustee and
the Receivables Trust therein, and (ii) as to the Receivables
Trust and the Trustee only, terminated and extinguished and of no
force or effect whatsoever.
Second: All claims of the Trustee and the Receivables Trust
against the Debtors shall be deemed (i) to the extent permitted
under applicable law, assigned and transferred to the Agent (for
the ratable benefit of the Agent and the Lenders) and the Agent
shall be subrogated to all rights of the Trustee and the
Receivables Trust therein, and (ii) as to the Trustee and the
Receivables Trust, terminated, extinguished, and of no force or
effect whatsoever.
Third: The Trustee and the Receivables Trust shall forthwith
deliver to the Borrower, free and clear of all liens, claims and
encumbrances, any and all property that is in the possession or
control of the Trustee or the Receivables Trust, and the Borrower
shall take such property free and clear of all liens claims and
encumbrances save those created by this Order and the DIP Loan
Documents.
(xvii) The Borrower is authorized to perform the Receivables
Transfer Agreement with Granite National Bank N.A. in the
ordinary course of business, and the Debtors are authorized to
perform all of their obligations and all acts and to make,
execute and deliver all instruments and documents which may be
required or necessary for the performance by any of the Debtors
thereunder, consistent with the DIP Loan Documents.
ADMINISTRATIVE CLAIM
(xviii) (a) The Obligations under the DIP Credit Facility
shall be an allowed administrative expense claim (the "Super-
Priority Claim") with priority (subject and subordinate to the
Carve-Out, including the Retained Payments (as defined below),
and the Mandatory Fees) under Bankruptcy Code section 364(c)(1)
and otherwise over all administrative expense claims and
unsecured claims against the Debtors, now existing or hereafter
arising, of any kind or nature whatsoever including, without
limitation, administrative expenses of the kinds specified in or
ordered pursuant to Bankruptcy Code sections 105, 326, 330
(except as otherwise provided in Paragraph 21, below, with
respect to the Mandatory Fees and Carve-Out (including the
Retained Payments)), 331, 503(a), 503(b), 506(c), 507(a), 507(b),
546(c), and 1114.
(b) The Prepetition 1997 Agent and the Prepetition Lenders shall
be entitled to all of the benefits of section 507(b) of the
Bankruptcy Code, including without limitation, for any Additional
Adequate Protection not paid; provided, that any such claim shall
be an allowed administrative expense claim (the "Junior Super-
Priority Claim") with priority (subject and subordinate to the
Carve-Out, including the Retained Payments (as defined below),
the Mandatory Fees and junior in priority and subordinate in all
respects to the Super-Priority Claim) under Bankruptcy Code
section 364(c)(1) and otherwise over all administrative expense
claims and unsecured claims against the Debtors, now existing or
hereafter arising, of any kind or nature whatsoever including,
without limitation, administrative expenses of the kinds
specified in or ordered pursuant to Bankruptcy Code sections 105,
326, 330 (except as otherwise provided in Paragraph 21, below,
with respect to the Mandatory Fees and Carve-Out (including the
Retained Payments)), 331, 503(a), 503(b), 506(c), 507(a), 507(b),
546(c), and 1114; provided that the Junior Super-Priority Claim
shall in all cases be subject to the terms of the Intercreditor
Arrangement.
(c) All post-petition intercompany indebtedness involving
obligations of any of the Debtors or any of their affiliates to
any of the Debtors shall be an allowed administrative expense
claim with priority under Bankruptcy Code section 364(c)(1) and
otherwise over all administrative expense claims and unsecured
claims against the Debtors, now existing or hereafter arising, of
any kind or nature whatsoever except for the Super-Priority
Claim, the Carve-Out (including the Retained Payments) and the
Mandatory Fees and such claims on account of Post-Petition
Intercompany Indebtedness shall be part of the Collateral
securing all Obligations under the DIP Loan Documents.
(xix) Except as set forth in Paragraph 3, the Liens and
Replacement Liens shall be prior and senior to all Liens and
encumbrances of other secured creditors in and to such Collateral
granted or arising, after the Petition Date (including, without
limitation, Liens and security interests, if any, granted in
favor of any federal, state, municipal or other governmental
unit, commission, board or court for any liability of the
Debtors).
(xx) Except for (a) the Mandatory Fees and (b) the allowed
amounts to be paid from the Carve-Out, plus the allowed amounts
representing Retained Payments, no costs or expenses of
administration including, without limitation, professional fees
allowed and payable under Bankruptcy Code sections 330 and 331
that have been or may be incurred in these chapter 11 cases, and
no priority claims to the Collateral are, or will be, prior to or
on a parity with the Obligations under the DIP Credit Facility,
or with any other claims of the Agent arising hereunder. Except
for (a) the Mandatory Fees, (b) the allowed amounts to be paid
from the Carve-Out, plus the allowed amounts representing
Retained Payments, and (c) the Super-Priority Claim, no costs or
expenses of administration including, without limitation,
professional fees allowed and payable under Bankruptcy Code
sections 330 and 331 that have been or may be incurred in these
chapter 11 cases, and no priority claims to the Collateral are,
or will be, prior to or on a parity with the Obligations under
the Prepetition 1997 Loan Documents, or with any other claims of
the Prepetition 1997 Agent arising hereunder.
(xxi) The term "Carve-Out" means the sum of $3,000,000, which
shall be available for distribution for those fees and expenses
of the professionals (the "Professionals") employed at the
expense of the Debtors' estates in the course of these chapter 11
cases pursuant to sections 327, 328, 503(b) or 1103 of the
Bankruptcy Code and for the reimbursement of all reasonable and
documented out-of-pocket expenses of members of the Creditors'
Committee. Any amounts paid to the Professionals or to members
of the Creditors' Committee prior to the occurrence of Event of
Default (the "Retained Payments") shall not be credited or
applied against the Carve-Out. The Carve-Out and the Retained
Payments shall in any event exclude any fees and expenses (i)
arising out of or related to the prosecution of any claims or
causes of action against the Agent or the Lenders, and (ii)
arising as to services rendered after conversion of the chapter
11 cases to cases under chapter 7 of the Bankruptcy Code. The
payment of the Carve-Out and the Retained Payments shall not
reduce, or be deemed applied in reduction of, the DIP Lenders'
claims against the Debtors. Nothing set forth in this Paragraph
21 shall be deemed to prejudice, in any way, the Agent's right to
object to any request made by any Professional for payment of
fees and services.
(xxii) The Debtors agree that no cost or expense which is
incurred by the Debtors in connection with or on account of the
preservation or disposition of any Collateral or which otherwise
could be chargeable to the Agent or the Collateral pursuant to
Bankruptcy Code section 506(c) or otherwise, shall be chargeable
to the Agent, the Prepetition 1997 Agent or the Collateral,
except for the Mandatory Fees, from the Carve-Out and as Retained
Payments.
1. Unless the Agent has provided its prior written consent or
all liabilities and all Obligations under the DIP Credit Facility
have indefeasibly been paid in full in cash, there shall not be
entered in these proceedings, or in any successor cases, any
order which authorizes:
(a) the obtaining of credit or the incurring of indebtedness
that is (i) secured by a security, mortgage, or collateral
interest or other Lien on all or any portion of the Collateral
which is equal or senior to the liens and security interests held
by the Agent, or (ii) entitled to priority administrative status
which is equal or senior to that granted to Agent herein;
provided however, that nothing herein shall prevent the entry of
an order that specifically provides that as a condition to the
granting of the benefits of (i) and (ii) above, all Obligations
under DIP Credit Facility must be indefeasibly paid in full in
cash; or
(b) the enforcement of any claimed security, mortgage, or
collateral interest or other Liens of any person other than of
the Agent on all or any portion of the Collateral (other than the
enforcement of a lien on property of any of the Debtors' estates
which, as of the Petition Date, was subject to a valid and
perfected lien (other than on the Prepetition Collateral), or a
lien which constitutes a Permitted Subsequently Perfected Lien,
in each case only to the extent having priority over the lien of
the DIP Lenders); or
(c) any payment or the transfer of any property on account of
claims asserted by vendors of any Debtor for reclamation in
accordance with Section 546(c) of the Bankruptcy Code, or the
Debtors' return of goods constituting Collateral pursuant to
Section 546(g)* of the Bankruptcy Code, provided that nothing
herein shall preclude the entry of any order granting a claim,
under Bankruptcy Code section 503(b) and in accordance with
Bankruptcy Code section 546(c)(2)(A), to a vendor asserting a
valid reclamation claim.
2. Without limiting the provisions and protections of Paragraph
23, above, if at any time prior to the repayment in full of all
Obligations under the DIP Credit Facility and the termination of
the Agent's obligation to make loans and advances under the DIP
Loan Documents, any Debtor or any Trustee subsequently appointed
shall obtain credit or incur debt pursuant to Bankruptcy Code
section 364(b), 364(c) or 364(d), then all of the consideration
for such credit or debt shall immediately be turned over to the
Agent in reduction of the Obligations under the DIP Credit
Facility.
3. All Obligations of the Debtors to the Agent and the Lenders
under the DIP Credit Facility are due and payable upon the
earliest to occur of the following:
(a) July 15, 2000 (or such later date to which the Agent and the
Debtors agree in writing), unless a Final Order approving the
Motion (in form reasonably acceptable to the Agent) has been
entered by such date, in which event the foregoing date shall be
extended to June 2, 2003; or
(b) the occurrence of an Event of Default (as defined in the DIP
Credit Agreement); or
(c) the effective date of any plan of reorganization for any of
the Debtors in these chapter 11 cases.
Unless and until the Obligations under the DIP Credit Facility
are repaid in full, the protections afforded to the Agent under
the DIP Loan Documents and hereunder, and any actions taken
pursuant thereto and the Carve-Out (as to pre-conversion
services), shall survive the entry of any order confirming a plan
of reorganization or converting any of these cases into a case
pursuant to chapter 7 of the Bankruptcy Code, and the Liens in
and to the Collateral and the Super-Priority Claim and the Junior
Super-Priority Claim shall continue in these proceedings and in
any such successor case, and such Liens, Super-Priority Claim and
the Junior Super-Priority Claim shall maintain their priority as
provided by this Order (and the Intercreditor Arrangement) until
the Obligations under the DIP Credit Facility have been satisfied
in full, and the Junior Super-Priority Claim shall maintain their
priority as provided by this Order until the Prepetition 1997
Obligations shall have been satisfied in full.
4. The time and manner of payment of the Obligations pursuant
to the DIP Credit Facility, the Liens in and to the Collateral
and the Super-Priority Claim shall not be altered or impaired by
any plan of reorganization which may hereafter be confirmed or by
any further order which may hereafter be entered.
REMEDIES UPON AN EVENT OF DEFAULT
5. Any automatic stay otherwise applicable to the Agent is
hereby modified so that upon the occurrence of an Event of
Default (as defined in the DIP Credit Agreement) and at any time
thereafter, upon five (5) days prior written notice of such
occurrence, in each case given to the Borrower and the Parent
Guarantor, counsel to the Creditor's Committee (if any) appointed
in these proceedings, and the United States Trustee, and without
further order of the Court, the Agent shall be entitled to
exercise the Agent's rights and remedies upon default. Following
the giving of notice by the Agent of the occurrence of any Event
of Default:
(a) the Agent may terminate the Commitments and thereafter cease
to make Advances (including Working Capital Advances, Swing Line
Advances and Letter of Credit Advances) to the Borrower;
(b) the Agent may declare the principal of and accrued interest,
fees and other liabilities constituting the Obligations to be due
and payable;
(c) the Debtors shall continue to deliver and cause the delivery
of the proceeds of the Collateral to the Agent, as provided in
the DIP Loan Documents;
(d) the Agent shall continue to apply such proceeds in
accordance with the provisions of the DIP Credit Agreement and in
accordance with this Order; and
(e) the Debtors shall have no right to use any of such proceeds,
nor any other cash collateral (as defined in Bankruptcy Code
section 363(a)) other than towards the satisfaction of the
Obligations due to the Agent and the Lenders under the DIP Credit
Facility, the obligations payable from the Carve-Out and the
Mandatory Fees.
6. Nothing included herein shall prejudice, impair, or
otherwise affect the Agent's right to seek any other or
supplemental relief in respect of the Debtors nor the Agent's
right, as provided in the DIP Credit Agreement, to suspend or
terminate the making of loans under the DIP Credit Agreement.
MISCELLANEOUS PROVISIONS
7. If any provision of this Order is hereafter modified,
vacated or stayed by subsequent order of this or any other Court
for any reason, such modification, vacation, or stay shall not
affect the validity of any liability incurred pursuant to this
Order and prior to the later of (a) the effective date of such
modification, vacation, or stay, or (b) the entry of the order
pursuant to which such modification, vacation, or stay was
established, nor the validity, priority, or enforceability of any
Lien granted by the Debtor to the Agent.
8. The payments made, and the Liens and Super-Priority Claims
granted to the Agent under the DIP Credit Facility and this
Order, and the priority thereof, shall be binding on the Debtors,
any successor trustee for the Debtors, and all creditors of the
Debtors, as provided in Bankruptcy Code section 364(e).
9. The Agent's failure to seek relief or otherwise exercise its
rights and remedies under the DIP Credit Facility or this Order
shall not constitute a waiver of any of the Agent's rights
hereunder, thereunder, or otherwise.
10. The Debtors and the Agent may amend or waive any provision
of the DIP Credit Facility, provided that such amendment or
waiver, in the judgment of the Debtors and the Agent, is either
nonprejudicial to the rights of third parties or is not material.
Except as otherwise set forth in the foregoing sentence, no
waiver, modification, or amendment of any of the provisions
hereof shall be effective unless set forth in writing, signed by
the parties hereto and approved by the Court.
11. In the event of any inconsistency between the terms and
conditions of any DIP Loan Document and of this Order, the
provisions of this Order shall govern and control.
12. The Debtors shall, on or before June ___, 2000, serve by
U.S. mail copies of the notice of approval of this Order,
together with a copy of this Order to (i) parties having been
given notice of the emergency hearing, (ii) any other party that
has filed a request for notice with this Court and served such
request upon the Debtor's counsel, (iii) counsel for any
statutory committee, (iv) counsel for the Agent, (v) the
Prepetition Agent and counsel for the Prepetition 1997 Agent,
(vi) the Prepetition 2000 Agent and counsel for the Prepetition
2000 Agent, (vii) the Prepetition 1997 Lenders, (viii) counsel
for the Creditors' Committee, if any, (ix) counsel for Oak Hill
Partners, (x) each of the landlords under the Debtors' real
property leases, (xi) counsel to the Trustee, (xii) the Debtors'
twenty largest unsecured creditors, and (xiii) the Office of the
United States Trustee. The notice of approval of this Order
shall state that any party in interest objecting to the DIP
Credit Facility or the terms of the Final Order shall file
written objections with the United States Bankruptcy Court Clerk
for the Southern District of Texas, Houston Division, no later
than 4:00 p.m. on _____________, 2000, which objections shall be
served so that same are received by no later than 4:00 p.m.
(Houston time) on such date by the Office of the United States
Trustee, counsel for the Debtors, counsel for the Agent, counsel
for the Prepetition 1997 Agent, counsel for the Prepetition 2000
Agent and counsel for the Creditors' Committee, if any.
13. The Final Hearing to consider the Motion and Final Order
shall be held on June 26, 2000, at 1:00 p.m., at the United
States Bankruptcy Court, United States Coouthouse, 515 Rusk
Avenue, Room 4025, Houston, Texas 77002, before the Honorable
Wesley W. Steen, United States Bankruptcy Judge.
SO ORDERED by the Court this 2nd day of June, 2000.
/s/ Wesley W. Steen
JUDGE
EXHIBIT H-3
Jenkens & Gilchrist
a professional Austin, Texas
corporation (512) 499-3800
Chicago,
1445 Ross Avenue Illinois
Suite 3200 (312) 425-3900
Dallas, Texas 75202 Houston, Texas
(713) 951-3300
(214) 855-4500 Los angeles,
telecopier (214) 855- California
4300 (310) 820-8800
(214) 855-4366 San Antonio,
ajillson@jenkens. www.jenkens.com Texas
com (210) 246-5000
Washington,
D.C.
(202) 326-1500
December 19, 2000
To the Administrative Agent, the Collateral Agent
and each Lender Party to the
Credit Agreement referred to below
Ladies and Gentlemen:
We have acted as counsel to Stage Stores, Inc., a Delaware
corporation (the "Parent Guarantor"), and Specialty Retailers,
Inc., a Texas corporation (the "Borrower" and together with the
Parent Guarantor and all Subsidiary Guarantors, each a "Loan
Party" and collectively, the "Loan Parties"), in connection with
the preparation, execution and delivery of the Debtor-in-
Possession Credit Agreement, dated as of June 2, 2000 (the
"Credit Agreement"), among the Parent Guarantor, the Borrower,
the financial institutions party thereto from time to time (the
"Lenders"), Citicorp USA, Inc., as Administrative Agent and
Collateral Agent (in such capacities, the "Agent"), and the
transactions contemplated thereby. Unless otherwise defined
herein, terms used herein shall have the respective meanings set
forth in the Credit Agreement. This opinion is delivered to you
pursuant to Section 3.01 of the Credit Agreement.
A. Documents Reviewed: Basis of Opinion
In connection with rendering this opinion, we have
received and examined documents submitted to us as originals, or
copies submitted to us as being in the form of original
documents, of the following (collectively, the "Documents"):
1. the Certificate or Articles of Incorporation and Bylaws of
each Loan Party, each as amended through the date hereof;
2. the Loan Documents being delivered at the closing of the
Credit Agreement on the date hereof, including the UCC financing
statement to be filed with the Secretary of State of the State of
Texas (the "Financing Statement"); and
3. such other public, corporate documents and records as we
deem necessary or appropriate in connection with this Opinion.
In our examination, we have assumed, without investigation
or inquiry, the authenticity of all Documents submitted to us as
originals, the genuineness of all signatures, the legal capacity
of natural persons and the conformity to the originals of all
Documents submitted to us as copies. In addition, we have,
without investigation or inquiry, assumed (i) that all of the
parties to such Documents have all requisite power and authority
to execute, deliver and perform their respective obligations
under each of the Documents to which they are a party (other than
the power and authority of the Loan Parties to execute, deliver
and perform their obligations under the Loan Documents); (ii)
that each of the Documents has been duly authorized by all
necessary action on the part of such parties (other than due
authorization of the Loan Documents by the Company) that are
party thereto; (iii) that each of the Documents has been duly
executed and delivered by such parties that are party thereto
(other than due execution and delivery of the Loan Documents by
the Loan Parties); and (iv) that each of the Documents are valid,
binding and enforceable obligations of all parties (other than of
the Loan Parties).
As to the truth and accuracy of all factual matters which
are relevant to this opinion, we have relied, without
investigation or inquiry, solely upon certificates or other
comparable documents of officers or other representatives of the
Loan Parties, certificates of governmental agencies and upon the
representations and warranties of each of the parties contained
in the Documents and upon the relevant facts stated therein, all
of which we have assumed to be true and complete.
B. Opinions
Based upon and subject to the foregoing and subject to
the assumptions, exceptions and qualifications hereinafter
stated, this firm expresses the following opinions:
1. Each Loan Party has taken all necessary corporate
action to authorize the execution, delivery and performance of
the Loan Documents to which it is a party. Each Loan Party has
duly executed and delivered each of the Loan Documents to which
it is a party, and each of such Loan Documents constitutes the
legal, valid and binding obligation of such Loan Party
enforceable in accordance with its terms.
2. No order, consent, approval, license,
authorization, or validation of, or filing, recording or
registration with (except as have been obtained or made prior to
the date hereof and are in full force and effect and except for
the additional filing of financing statements, mortgages, deeds
of trust and other documents required by the Loan Documents), or
exemption by, any Governmental Authority, is required to
authorize, or is required in connection with, (a) the execution,
delivery and performance of any Loan Document or (b) the
legality, validity, binding effect or enforceability of any such
Loan Document.
3. The Interim Order has been entered on the docket
of the Bankruptcy Court and after reviewing the Bankruptcy
Court's Docket Report by electronic means, effective as of June
6, 2000 at 11:08 a.m., we are not aware of any order staying,
reversing, amending, vacating or otherwise modifying the Interim
Order or of any motion pending requesting any such order.
4. The Interim Order and the Security Agreement
create a valid security interest (the "Article 9 Security
Interest"), for the benefit of the Secured Parties, in all of the
Loan Parties' right, title and interest in all Collateral (as
defined in the Security Agreement), in each case to the extent
Article 9 of the Uniform Commercial Code of the State of Texas
(the "UCC") is generally applicable thereto (and as used herein
the term "Collateral" is limited to Collateral subject to the
UCC) and, to the extent provided in Section 9-306 of the UCC, all
proceeds thereof.
5. Upon entry of the Interim Order and filing of
the Financing Statement in the office of the Secretary of State
of the State of Texas, which is the office in which filings are
required to perfect the Article 9 Security Interests in the
Collateral to the extent the Article 9 Security Interests may be
perfected by filing under the UCC, no further filing or recording
of any document or instrument or other action will be required so
to perfect the Article 9 Security Interests in the Collateral in
Texas.
6. A Texas court or a federal court sitting in the
State of Texas and applying the conflict of law rules of the
State of Texas, including, without limitation, Section 35.51 of
the Texas Business and Commerce Code Annotated, would give effect
to the provisions of the Credit Agreement and the other Loan
Documents that provide that such Loan Documents are to be
governed by, and construed and enforced in accordance with, the
laws of the State of New York.
C. Assumptions, Limitations, Qualifications and Exceptions
1. The opinion in Paragraph B.1. above as to the
enforceability of the Loan Documents is subject to:
a. bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, or other similar laws relating to or
affecting creditors' rights generally, or the appointment of a
receiver or conservator pursuant to state or federal laws;
b. general principles of equity, including without limitation
concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in
equity or at law;
c. the rights of the United States under the Federal Tax Lien
Act of 1966, as amended; and
d. other applicable laws, rules, regulations, court decisions
and constitutional requirements in and of the State of Texas or
the United States of America limiting or affecting the exercise
of remedies under the Loan Documents, provided that any
limitations imposed by such other applicable laws, rules,
regulations, court decisions and constitutional requirements will
not in our opinion, materially interfere with the Agent or the
Lenders realizing the practical benefits intended to be conferred
by the Loan Documents, though they may result in a delay thereof
(and we express no opinion with respect to the economic
consequences of any such delay).
2. As to our opinions set forth above, we do not
opine as to, and we have not reviewed or examined:
a. any local, municipal, county, district or
regional law, statute, order, decree,
administrative record, policy, procedure,
guideline, rule, requirement, regulation or
notice; or
b. any policy, procedure, guideline, rule,
requirement or regulation that is privileged,
confidential, internal, unpublished, or not
of public record or widely disseminated at
the date of this opinion.
3. We have not been requested to opine, and we have
not opined, as to compliance with Texas usury laws or any issues
other than those expressly set forth herein.
4. We are attorneys licensed to practice law in the
State of Texas and we do not purport to be experts as to the law
of any jurisdiction other than the State of Texas and the federal
law of the United States of America. Accordingly, our opinions
rendered herein are based upon, and limited to, the applicable
laws of the United States and the State of Texas (and, in the
case of Paragraph B.1., the General Corporation Law of the State
of Delaware) in effect as of the date hereof.
5. We note that the Loan Documents by their terms
purport to be governed by the laws of the State of New York.
While this firm expresses no opinion with respect to the laws of
the State of New York, in rendering the opinions above, this firm
has assumed that the internal laws of the State of New York are
the same as the internal laws of the State of Texas. We have not
conducted any analysis to determine if such assumption is
correct.
6. The opinions expressed in Paragraph B.5
are subject to the following assumptions, limitations and
qualifications:
a) none of the Collateral consists or will consist of consumer
goods, farm products, equipment used in farming operations,
crops, timber, minerals and the like (including oil and gas) or
accounts or general intangibles resulting from the sale of any of
the foregoing, or beneficial interests in a trust or a decedent's
estate;
b) in the case of property that becomes Collateral after the
date hereof, Section 552 of the Bankruptcy Code limits the extent
to which property acquired by a debtor after the commencement of
a case under the Bankruptcy Code may be subject to a security
interest arising from a security agreement entered into by the
debtor before the commencement of such case;
c) in the case of Collateral consisting of
proceeds, continuation of perfection of the
security interest therein is limited to the
extent set forth in Section 9-306 of the UCC;
d) in the case of all Collateral to which the UCC applies, the
UCC requires the filing of continuation statements within the
period of six months prior to the expiration of five years from
the date of the filing of the original financing statements or
the filing of any continuation statement, in order to maintain
the effectiveness of the filing of the original financing
statements;
e) we express no opinion as to the Loan Parties' rights in or
title to any Collateral;
f) we express no opinion as to the priority of the security
interests in any of the Collateral;
g) we express no opinion regarding the validity, perfection or
priority of the security interests in any of the Collateral as
they relate to the creation or transfer of an interest in or lien
on real estate, including a lease or rents thereunder, or as they
relate to goods that are or are to become fixtures (regardless of
location);
h) we express no opinion regarding the validity, perfection or
priority of any security interest in any of the Collateral
consisting of an interest or claim in or under any policy of
insurance or contract for an annuity;
i) we express no opinion regarding the validity, perfection or
priority of any security interest in any item of Collateral
consisting of any license or permit issued by any governmental
authority; and
j) We express no opinion as to the rights of the United States
under the Federal Tax Lien Act of 1966, as amended.
We call to your attention the fact that the perfection of
the security interests will be terminated as to any Collateral
acquired by any Credit Party more than four months after such
Loan Party changes its name, identity or partnership or corporate
structure so as to make the financing statement seriously
misleading, unless new appropriate financing statements
indicating the new name, identity or partnership or corporate
structure of the Borrower is properly filed before the expiration
of such four months. We also call to your attention that the
perfection of the security interests in the Collateral will be
terminated, as to any Collateral consisting of accounts, general
intangibles or chattel paper, four months after the relevant
Credit Party changes its chief executive office to a jurisdiction
not governed by the UCC (or, if earlier, when perfection would
have ceased as set forth in subparagraph (d) above) unless such
security interests are perfected in such new jurisdiction before
that termination.
Except as otherwise provided herein, this opinion
letter and the matters addressed herein are as of the date
hereof, and we undertake no, and hereby disclaim any, obligation
to advise you of any change in any matter set forth herein
occurring after the date hereof or the date referred to herein,
as the case may be. This opinion letter is limited to the
matters stated herein and no opinion is implied or may be
inferred beyond the matters expressly stated.
This opinion letter is solely for your benefit and for the
benefit of each Lender from time to time party to the Credit
Agreement, their participants and assigns, and may not be relied
upon by any other person without our prior written consent. This
opinion may not be relied upon for any other purpose, or relied
upon by any other person, firm or corporation for any purpose,
without our prior written consent. We assume no obligation to
advise you of facts, circumstances, events or developments that
hereafter may be brought to our attention and that may alter,
affect or modify the opinions expressed herein.
JENKENS & GILCHRIST,
A Professional Corporation
By:
Andrew E. Jillson, Authorized
Signatory
_______________________________
1PLEASE PRINT THIS WITH GRAPHIC LINES
1 Required if the Assignee is an Eligible Assignee solely by
reason of clause (a)(viii) or (b) of the definition of
"Eligible Assignee".
2 Required if the Assignee is an Eligible Assignee solely by
reason of clause (a)(viii) or (b) of the definition of
"Eligible Assignee" and no Default has occurred or is
continuing as of the Effective Date.
