___________________________________________________________________________
___________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
October 11, 1996
PROFFITT'S, INC.
(Exact name of registrant as specified in its charter)
Tennessee
(State of incorporation)
0-15907
(Commission File
Number)
62-0331040
(I.R.S.
Employer
Identification
No.)
P.O. Box 9388
Alcoa, Tennessee
(Address of principal
executive offices)
37701
(Zip Code)
Registrant's telephone number, including area code (423) 983-7000
N/A
(Former name or former address, if changed since last report)
___________________________________________________________________________
___________________________________________________________________________
Item 2. Acquisition or Disposition of Assets
On October 11, 1996, the registrant, Proffitt's, Inc., a Tennessee
corporation ("Proffitt's), completed a merger with Parisian, Inc, an Alabama
corporation ("Parisian") in which a wholly owned subsidiary of Proffitt's was
merged with and into Parisian, with Parisian surviving the merger as a wholly
owned subsidiary of Proffitt's. In connection with the merger, each
outstanding common share $0.01 par value of Parisian was converted into a
right to receive $15.00 in cash and .4006 shares of the common stock, $10.00
par value, of Proffitt's (the "Proffitt's Common Stock"), for an aggregate
consideration of approximately $110 million in cash and approximately 2.9
million shares of Proffitt's Common Stock.
Parisian is a regional specialty department store company which operates
38 stores in Alabama, Florida, Georgia, Indiana, Michigan, Ohio, South
Carolina, and Tennessee.
In connection with the merger, Proffitt's issued its Guaranty of the
$125 million in outstanding principal amount of the 9 7/8% Senior
Subordinated Notes due 2003 of Parisian (the "Notes"), pursuant to a
Supplemental Indenture, dated as of October 11, 1996 among Proffitt's,
Parisian and AmSouth Bank of Alabama, as trustee. Proffitt's paid to each
holder of a Note consenting to approval of the Supplemental Indenture, $10.00
per $1,000 of principal amount of such holder's Notes for an aggregate
payment of approximately $1.2 million.
Funds for the cash consideration paid to Parisian shareholders, the
consent payments to holders of Notes and certain expenses and investment
advisory fees in the aggregate amount of approximately $4.3 million incurred
in connection with the merger were provided by borrowing under a $275 million
credit facility pursuant to a Credit Facilities and Reimbursement Agreement
dated October 11, 1996, by and among Proffitt's, certain lenders, and
NationsBank of Texas, National Association.
Item 7. Financial Statements and Exhibits
7(a) and 7(b). It is impractical to file the financial statements and
pro forma financial information required by Items 7(a) and 7(b) with this
report. This report will be amended as to file such statements and
information as soon as they are completed, but in no event later than 60 days
after the date this report must be filed.
7(c). The following exhibits are furnished as required by Item 7(c):
Exhibit
Number Description
2 Agreement and Plan of Merger dated July 8, 1996, among
Proffitt's, Inc., Casablanca Merger Corp. and
Parisian, Inc. (Incorporated by reference to Exhibit
2 to the Registrant's Current Report on Form 8-K filed
July 18, 1996).
4.1 Credit Facilities and Reimbursement Agreement by and
among Proffitt's, Inc., certain lenders and
NationsBank of Texas, National Association, as Agent.
4.2 Registration Rights Agreement (incorporated by
reference to Appendix III to the prospectus dated
August 16, 1996, included in the Registrant's
Registration Statement on Form S-4, Reg. No. 333-09043).
4.3 Form of Supplemental Indenture (incorporated by
reference to Exhibit 4(d) to the Registrant's
Registration Statement on Form S-3, Reg. No. 333-09941).
[SPACE INTENTIONALLY LEFT BLANK]
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PROFFITT'S, INC.
Date: October 24, 1996
By: /s/ R. Brad Martin
R. Brad Martin, Chairman of the Board
and Chief Executive Officer
<PAGE>
EXHIBIT INDEX
Exhibit Page
Number Description Number
2 Agreement and Plan of Merger dated July 8, 1996, among
Proffitt's, Inc., Casablanca Merger Corp. and Parisian,
Inc. (Incorporated by reference to Exhibit 2 to the
Registrant's Current Report on Form 8-K filed July 18,
1996).
4.1 Credit Facilities and Reimbursement Agreement by and
among Proffitt's, Inc., certain lenders and NationsBank
of Texas, National Association, as Agent.
4.2 Registration Rights Agreement (incorporated by reference
to Appendix III to the prospectus dated August 16, 1996,
included in the Registrant's Registration Statement on
Form S-4, Reg. No. 333-09043).
4.3 Form of Supplemental Indenture (incorporated by reference
to Exhibit 4(d) to the Registrant's Registration
Statement on Form S-3, Reg. No. 333-09941).
CREDIT FACILITIES
AND
REIMBURSEMENT AGREEMENT
by and among
PROFFITT'S, INC.,
as Borrower,
The Lenders from time to time party hereto
and
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION,
as Agent
October 11, 1996
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Terms
1.01 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.02 Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . 22
1.03 Terms Consistent . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE II
The Loans
2.01 Revolving Credit Loans . . . . . . . . . . . . . . . . . . . . 23
2.02 Swing Line . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.03 Payment of Interest. . . . . . . . . . . . . . . . . . . . . . 26
2.04 Payment of Principal . . . . . . . . . . . . . . . . . . . . . 27
2.05 Non-Conforming Payments. . . . . . . . . . . . . . . . . . . . 27
2.06 Borrower's Account . . . . . . . . . . . . . . . . . . . . . . 28
2.07 Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.08 Pro Rata Payments. . . . . . . . . . . . . . . . . . . . . . . 28
2.09 Reductions . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.10 Increase and Decrease in Amounts . . . . . . . . . . . . . . . 29
2.11 Conversions and Elections of Subsequent Interest Periods . . . 29
2.12 Fees.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.13 Deficiency Advances. . . . . . . . . . . . . . . . . . . . . . 30
2.14 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . 30
2.15 Extension of Revolving Credit Termination Date . . . . . . . . 30
2.16 Additional Fees. . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE III
Letters of Credit
3.01 Letters of Credit. . . . . . . . . . . . . . . . . . . . . . . 31
3.02 Reimbursement. . . . . . . . . . . . . . . . . . . . . . . . . 31
3.03 Letter of Credit Fee . . . . . . . . . . . . . . . . . . . . . 34
3.04 Administrative Fees. . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE IV
Yield Protection and Illegality
4.01 Additional Costs . . . . . . . . . . . . . . . . . . . . . . . 35
4.02 Suspension of Loans. . . . . . . . . . . . . . . . . . . . . . 36
4.03 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . 37
4.04 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . 37
4.05 Alternate Interest Rate. . . . . . . . . . . . . . . . . . . 37
4.06 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE V
Conditions to Making Loans and IssuingLetters of Credit
5.01 Conditions of Initial Advance and Issuance of Letters of Credit39
5.02 Conditions of Loans. . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE VI
Representations and Warranties
6.01 Representations and Warranties . . . . . . . . . . . . . . . . 43
ARTICLE VII
Affirmative Covenants
7.01 Financial Reports, etc.. . . . . . . . . . . . . . . . . . . . 49
7.02 Maintain Properties. . . . . . . . . . . . . . . . . . . . . . 51
7.03 Existence, Qualification, etc. . . . . . . . . . . . . . . . . 51
7.04 Regulations and Taxes. . . . . . . . . . . . . . . . . . . . . 51
7.05 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . 51
7.06 True Books . . . . . . . . . . . . . . . . . . . . . . . . . . 52
7.07 Pay Indebtedness to Lenders and Perform Other Covenants. . . . 52
7.08 Right of Inspection. . . . . . . . . . . . . . . . . . . . . . 52
7.09 Observe All Laws . . . . . . . . . . . . . . . . . . . . . . . 52
7.10 Covenants Extending to Subsidiaries. . . . . . . . . . . . . . 52
7.11 Officer's Knowledge of Default . . . . . . . . . . . . . . . . 52
7.12 Suits or Other Proceedings . . . . . . . . . . . . . . . . . . 52
7.13 Notice of Discharge of Hazardous Material or Environmental
Complaint. . . . . . . . . . . . . . . . . . . . . . . . . . . 53
7.14 Environmental Compliance . . . . . . . . . . . . . . . . . . . 53
7.15 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . 53
7.16 Further Assurances . . . . . . . . . . . . . . . . . . . . . . 53
7.17 Benefit Plans. . . . . . . . . . . . . . . . . . . . . . . . . 53
7.18 Continued Operations . . . . . . . . . . . . . . . . . . . . . 54
7.19 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . 54
7.20 New Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE VIII
Negative Covenants
8.01 Consolidated Net Worth . . . . . . . . . . . . . . . . . . . . 55
8.02 Consolidated Senior Indebtedness to Consolidated Capitalization55
8.03 Consolidated Fixed Charge Ratio. . . . . . . . . . . . . . . . 55
8.04 Capital Expenditures . . . . . . . . . . . . . . . . . . . . . 56
8.05 Consolidated Funded Indebtedness to EBITDA . . . . . . . . . . 56
8.06 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . 56
8.07 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
8.08 Transfer of Assets . . . . . . . . . . . . . . . . . . . . . . 59
8.09 Investments; Acquisitions. . . . . . . . . . . . . . . . . . . 59
8.10 Merger or Consolidation. . . . . . . . . . . . . . . . . . . . 59
8.11 Transactions with Affiliates . . . . . . . . . . . . . . . . . 60
8.12 Benefit Plans. . . . . . . . . . . . . . . . . . . . . . . . . 60
8.13 Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.14 Dissolution, etc.. . . . . . . . . . . . . . . . . . . . . . . 61
8.15 Rate Hedging Obligations . . . . . . . . . . . . . . . . . . . 61
8.16 Negative Pledge Clauses. . . . . . . . . . . . . . . . . . . . 61
ARTICLE IX
Events of Default and Acceleration
9.01 Events of Default. . . . . . . . . . . . . . . . . . . . . . . 61
9.02 Agent to Act . . . . . . . . . . . . . . . . . . . . . . . . . 65
9.03 Cumulative Rights. . . . . . . . . . . . . . . . . . . . . . . 65
9.04 No Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . 65
9.05 Allocation of Proceeds . . . . . . . . . . . . . . . . . . . . 65
ARTICLE X
The Agent
10.01 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . 66
10.02 Attorneys-in-fact . . . . . . . . . . . . . . . . . . . . . . 66
10.03 Limitation on Liability . . . . . . . . . . . . . . . . . . . 66
10.04 Reliance. . . . . . . . . . . . . . . . . . . . . . . . . . . 67
10.05 Notice of Default . . . . . . . . . . . . . . . . . . . . . . 67
10.06 No Representations. . . . . . . . . . . . . . . . . . . . . . 67
10.07 Indemnification . . . . . . . . . . . . . . . . . . . . . . . 68
10.08 Lender. . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
10.09 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . 68
10.10 Sharing of Payments, etc. . . . . . . . . . . . . . . . . . . 69
ARTICLE XI
Miscellaneous
11.01 Assignments and Participations69
11.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
11.03 Setoff. . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
11.04 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . 73
11.05 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . 74
11.06 Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . 74
11.07 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . 75
11.08 Termination . . . . . . . . . . . . . . . . . . . . . . . . . 75
11.09 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 75
11.10 Indemnification . . . . . . . . . . . . . . . . . . . . . . . 76
11.11 Headings and References . . . . . . . . . . . . . . . . . . . 77
11.12 Severability. . . . . . . . . . . . . . . . . . . . . . . . . 77
11.13 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . 77
11.14 Agreement Controls. . . . . . . . . . . . . . . . . . . . . . 77
11.15 Usury Savings Clause. . . . . . . . . . . . . . . . . . . . . 77
11.16 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . 78
11.17 Status of Debt. . . . . . . . . . . . . . . . . . . . . . . . 78
11.18 Simultaneous Closings . . . . . . . . . . . . . . . . . . . . 78
11.19 Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . . . 78
EXHIBIT A Revolving Credit Commitments . . . . . . . . . . . . .A-1
EXHIBIT B Form of Assignment and Acceptance. . . . . . . . . . .B-1
EXHIBIT C Notice of Appointment (or Revocation) of Authorized
Representative . . . . . . . . . . . . . . . . . . . .C-1
EXHIBIT D Form of Borrowing Notice--Revolving Credit Loans . . .D-1
EXHIBIT E Form of Guaranty Agreement . . . . . . . . . . . . . .E-1
EXHIBIT F Form of Revolving Credit Notes . . . . . . . . . . . .F-1
EXHIBIT G Form of Swing Line Note. . . . . . . . . . . . . . . .G-1
EXHIBIT H Interest Rate Selection Notice . . . . . . . . . . . .H-1
EXHIBIT I Form of Opinion of Counsel to the Borrower and
Counsel to the Guarantors. . . . . . . . . . . . . . .I-1
EXHIBIT J Compliance Certificate . . . . . . . . . . . . . . . .J-1
EXHIBIT K Borrowing Base Certificate . . . . . . . . . . . . . .K-1
EXHIBIT L Upfront Fees . . . . . . . . . . . . . . . . . . . . .L-1
Schedule 6.01(d) Subsidiaries and Investments
Schedule 6.01(f) Contingent Liabilities
Schedule 6.01(g) Liens
Schedule 6.01(h) Tax Matters
Schedule 6.01(j) Litigation
Schedule 6.01(m) Patents
Schedule 6.01(o) Consents
Schedule 7.05 Insurance
Schedule 8.06 Indebtedness
CREDIT FACILITIES AND REIMBURSEMENT AGREEMENT
THIS CREDIT FACILITIES AND REIMBURSEMENT AGREEMENT, dated as of
October 11, 1996 (the "Agreement"), is made by and among:
PROFFITT'S, INC., a Tennessee corporation having a principal place of
business in Alcoa, Tennessee (the "Borrower"); and
Each lender executing and delivering a signature page hereto and each
other lender which may hereafter execute and deliver an instrument of
assignment with respect to this Agreement pursuant to Section 11.01
hereof (hereinafter such lenders may be referred to individually as a
"Lender" or collectively as the "Lenders"); and
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION, a national banking
association organized and existing under the laws of the United States
of America ("NationsBank"), in its capacity as agent for the Lenders (in
such capacity, the "Agent");
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders amend and restate
the Credit Facilities and Reimbursement Agreement dated as of March 31,
1994 among the Borrower, the Agent and the Lenders party thereto ("the
1994 Credit Agreement") and make available to the Borrower a revolving
credit facility in the maximum aggregate principal amount at any time
outstanding of $275,000,000, which shall include (i) a standby letter of
credit facility of up to $15,000,000 and (ii) a swing line facility of
up to $20,000,000, the proceeds of such loans to be used to finance
general corporate purposes and the purchase of the common shares of
Parisian, Inc.; and
WHEREAS, the Lenders are willing to amend and restate the 1994 Credit
Agreement and to make all such facilities available to the Borrower upon
the terms and conditions set forth herein;
NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby agree
to amend and restate the 1994 Credit Agreement as follows:
ARTICLE I
Definitions and Terms
1.01 Definitions. For the purposes of this Agreement, in addition
to the definitions set forth above, the following terms shall have the
respective meanings set forth below:
"Acquisition" means the acquisition of (i) a controlling equity
interest in another Person (including the purchase of an option,
warrant or convertible or similar type security to acquire such a
controlling interest at the time it becomes exercisable by the holder
thereof), whether by purchase of such equity interest or upon exercise
of an option or warrant for, or conversion of securities into, such
equity interest, or (ii) assets of another Person which constitute all
or substantially all of the assets of such Person or all or
substantially all of a line or lines of business conducted by or a
division of such Person;
"Advance" means any borrowing under (i) the Revolving Credit
Facility consisting of a Base Rate Loan or a Eurodollar Loan, as the
case may be, or (ii) the Swing Line consisting of a Swing Line Loan;
"Affiliate" means a Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or
is under common control with, the Borrower; (ii) which beneficially
owns or holds 5% or more of any class of the outstanding voting stock
(or in the case of a Person which is not a corporation, 5% or more of
the equity interest) of the Borrower; or (iii) 5% or more of any class
of the outstanding voting stock (or in the case of a Person which is
not a corporation, 5% or more of the equity interest) of which is
beneficially owned or held by the Borrower. The term "control" means
the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person,
whether through ownership of voting stock, by contract or otherwise;
"Applicable Commitment Percentage" means, at any time for each
Lender with respect to the Revolving Credit Facility (including its
Participations and its obligations hereunder to NationsBank to acquire
Participations), a fraction (expressed as a percentage), (A) the
numerator of which shall be the amount of such Lender's Revolving
Credit Commitment at such date of determination (which Revolving
Credit Commitment for each Lender as of the Closing Date is set forth
in Exhibit A attached hereto and incorporated herein by reference),
and (B) the denominator of which shall be the Total Revolving Credit
Commitment at such date of determination; provided that each
Applicable Commitment Percentage of each Lender shall be increased or
decreased to reflect any assignments to or by such Lender effected in
accordance with Section 11.01 hereof;
"Applicable Interest Addition" means for each Eurodollar Loan
that percent per annum set forth below, which shall be (i) determined
as of each Determination Date based upon the computations set forth
in the compliance certificates furnished to the Agent pursuant to
Sections 5.01(a)(x), 7.01(a)(ii) or 7.01(b)(ii) hereof as of such
Determination Date and for the period then ended, subject to review
and approval of such computations by the Agent, and furnished to the
Agent not later than the time set forth in Sections 5.01, 7.01(a) or
(b) hereof, as applicable (the "Compliance Date") and (ii) applicable
to all Eurodollar Loans existing on and after the most recent
Compliance Date, based upon the ratio of (X) Consolidated Funded
Indebtedness as at the applicable Determination Date to (Y)
Consolidated EBITDA for the Four-Quarter Period of the Borrower ended
at the applicable Determination Date, as specified below:
Consolidated Funded Indebtedness/ Applicable
Consolidated EBITDA Ratio Interest Addition
(Eurodollar Spread)
Greater than 3.50 to 1.00 1.375%
Greater than 2.75 to 1.00 and 1.125%
less than or equal to 3.50 to 1.00
Greater than 2.00 to 1.00 and .875%
less than or equal to 2.75 to 1.00
Greater than 1.00 to 1.00 and .750%
less than or equal to 2.00 to 1.00
Less than or equal to 1.00 to 1.00 .500%
An adjustment (either an increase or decrease) to the Applicable
Interest Addition will not occur unless the ratio determined on the
Determination Date for the fiscal quarter then ended and the ratio
determined on the immediately preceding Determination Date each
would
result in an increase in the Applicable Interest Margin or each
would
result in a decrease in the Applicable Interest Addition, as
applicable. In the event that the Applicable Interest Additions
that
would have been determined on each of such two Determination Dates
but
for the immediately preceding sentence are different, the Applicable
Interest Addition which represents the lesser change from the prior
Applicable Interest Addition shall be the Applicable Interest
Addition
which is effective. The initial Applicable Interest Addition to be
in effect as of the Closing Date and at all times thereafter until
the
first Compliance Date to occur after the Closing Date shall be
1.125%.
"Applicable Unused Fee" means at any time that percent per annum
set forth below, which shall be (i) determined as of each
Determination Date based upon the computations set forth in the
compliance certificates furnished to the Agent pursuant to
Sections 5.01(a)(x), 7.01(a)(ii) or 7.01(b)(ii) hereof as of such
Determination Date and for the period then ended, subject to review
and approval of such computations by the Agent, and furnished to the
Agent not later than the time set forth in Sections 5.01, 7.01(a) or
(b) hereof, as applicable (the "Compliance Date") and (ii)
applicable
at all times on and after the most recent Compliance Date until the
immediately following Compliance Date, based upon the ratio of (X)
Consolidated Funded Indebtedness as at the applicable Determination
Date to (Y) Consolidated EBITDA for the Four-Quarter Period of the
Borrower ended at the applicable Determination Date, as specified
below:
Consolidated Funded Indebtedness/ Applicable
Consolidated EBITDA Ratio Unused Fee
Greater than 3.50 to 1.00 .30%
Greater than 2.00 to 1.00 and .25%
less than or equal to 3.50 to 1.00
Greater than 1.00 to 1.00 and .20%
less than or equal to 2.00 to 1.00
Less or equal to 1.00 to 1.00 .15%
An adjustment (either an increase or a decrease) to the Applicable
Unused Fee will not occur unless the ratio determined on the
Determination Date for the fiscal quarter then ended and the ratio
determined on the immediately preceding Determination Date each would
result in an increase in the Applicable Unused Fee or each would
result in a decrease in the Applicable Unused Fee, as applicable. In
the event that the Applicable Unused Fees that would have been
determined on each of such two Determination Dates but for the
immediately preceding sentence are different, the Applicable Unused
Fee which represents the lesser change from the prior Applicable
Unused Fee shall be the Applicable Unused Fee which is effective. The
initial Applicable Unused Fee to be in effect as of the Closing Date
and at all times thereafter until the first Compliance Date to occur
after the Closing Date shall be .25%.
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit
executed by the Borrower from time to time and delivered to
NationsBank to support the issuance of Letters of Credit;
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of Exhibit B attached hereto and incorporated
herein by reference (with blanks appropriately filled in) delivered
to the Agent in connection with an assignment of a Lender's interest
under this Agreement pursuant to Section 11.01;
"Authorized Representative" means any of the Chairman, Vice
Chairmen, President, Executive Vice Presidents or Vice Presidents of
the Borrower and, with respect to financial matters, the Treasurer or
chief financial officer of the Borrower or any other person expressly
designated by the Board of Directors of the Borrower (or the
appropriate committee thereof) as an Authorized Representative of the
Borrower, as set forth from time to time in a certificate in the form
attached hereto as Exhibit C and incorporated herein by reference;
"Base Rate" means, for any Base Rate Loan, the greater of (i) the
Prime Rate or (ii) the Federal Funds Effective Rate plus one-half of
one percent (1/2%), each change in such Base Rate to be effective as of
the effective date of any change in the Prime Rate or the Federal
Funds Effective Rate giving rise thereto;
"Base Rate Loan" means any Loan for which the rate of interest
is determined by reference to the Base Rate;
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body);
"Borrower's Account" means demand deposit account number
125-281-4250
with the Agent, or any successor account with the Agent, which may be
maintained at one or more offices of the Agent or an agent of the
Agent;
"Borrowing Base" means, at any date of determination, an amount
determined pursuant to the following formula:
Borrowing = (Eligible Inventory - Commercial L/Cs) x Borrowing
Base Base Factor
"Borrowing Base Certificate" has the meaning assigned to such
term in Section 7.01(d) hereof;
"Borrowing Base Factor" means 60% through Fiscal Year 1996 and
55% thereafter;
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving
Credit Facility, in the form attached hereto as Exhibit D and
incorporated herein by reference;
"Business Day" means any day which is not a Saturday, Sunday or
a day on which banks in the State of Texas are authorized or obligated
by law, executive order or governmental decree to be closed;
"Capital Expenditures" means for any period the sum of (without
duplication) (i) all expenditures (whether paid in cash or accrued as
liabilities) by the Borrower or any Subsidiary during that period that
are for items that would be classified as "property, plant or
equipment" or comparable items on the consolidated balance sheet of
the Borrower and its Subsidiaries, including without limitation all
transactional costs incurred in connection with such expenditures
provided the same have been capitalized excluding, however, the amount
of any Capital Expenditures paid for with proceeds of casualty
insurance as evidenced in writing and submitted to the Agent together
with any compliance certificate delivered pursuant to Section 7.01(a)
or (b) hereof, plus (ii) with respect to any Capital Lease entered
into by the Borrower or its Subsidiaries during such period, the
present value of the lease payments due under such Capital Lease over
the term of such Capital Lease applying a discount rate equal to the
interest rate provided in such lease (or in the absence of a stated
interest rate, that rate used in the preparation of the financial
statements described in Section 7.01(a) hereof), plus (iii) all Costs
of Acquisition, all of the foregoing in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis;
provided, however, there shall be excluded from the determination of
Capital Expenditures the Costs of Acquisition incurred in connection
with the Parisian Acquisition and any Permitted Acquisition;
"Capital Leases" means all leases which have been or should be
capitalized in accordance with Generally Accepted Accounting
Principles as in effect from time to time including Statement No. 13
of the Financial Accounting Standards Board and any successor thereof;
"Closing Date" means the date as of which this Agreement is
executed by the Borrower, the Lenders and the Agent and on which the
conditions set forth in Section 5.01 hereof have been satisfied;
"Code" means the Internal Revenue Code of 1986, as amended, any
successor provision or provisions and any regulations promulgated
thereunder;
"Commercial L/Cs" means, at any date of determination, the
aggregated stated amount of outstanding commercial or documentary
letters of credit issued for the benefit of any Person and for the
account of the Borrower or any Subsidiary to the extent that such
letters of credit were issued in connection with the purchase of
inventory by the Borrower or such Subsidiary and such inventory is
determined to be an asset thereof and included as such on its books
and records;
"Common Stock" means the common stock, par value $.10 per share,
of the Borrower;
"Compliance Date" has the meaning assigned to such term in the
definition of "Applicable Interest Addition" in Section 1.01 hereof;
"Confidential Information" means information that is furnished
to the Agent or any Lender by or on behalf of the Borrower or any of
its Subsidiaries on a confidential basis in connection with the Letter
of Credit Facility, the Revolving Credit Facility, the Swing Line, the
Loan Documents or any of the transactions contemplated thereby, but
does not include any such information that (a) is or becomes generally
available to the public (other than as a result of a breach by the
Agent or such Lender of its confidentiality obligations hereunder or
otherwise), (b) was available to the Agent or any Lender on a
nonconfidential basis prior to its disclosure to the Agent or such
Lender by the Borrower or any of its Subsidiaries, or (c) is or
becomes available to the Agent or any Lender on a nonconfidential
basis from a source that is not, to the best of the Agent's or such
Lender's knowledge, as the case may be, bound by a confidentiality
arrangement with the Borrower or any of its Subsidiaries in respect
of such information or otherwise prohibited from disclosing such
information;
"Consistent Basis" in reference to the application of Generally
Accepted Accounting Principles means the accounting principles
observed in the period referred to are comparable in all material
respects to those applied in the preparation of the audited financial
statements of the Borrower referred to in Section 6.01(f)(i) hereof;
"Consolidated Capitalization" means, at any time at which the
amount thereof is to be determined, the sum of Consolidated Funded
Indebtedness plus Consolidated Shareholders' Equity;
"Consolidated EBITDA" means, with respect to the Borrower and its
Subsidiaries for any period of computation thereof, the sum of,
without duplication, (i) Consolidated Net Income, plus (ii)
Consolidated Interest Expense, plus (iii) taxes on income, plus (iv)
amortization, plus (v) depreciation, all determined on a consolidated
basis in accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis; provided however, at all times until
a Four-Quarter Period wholly occurs after the Closing Date,
Consolidated EBITDA shall be calculated giving pro forma effect to the
Parisian Acquisition for the Four-Quarter Period ending on or most
recently prior to the date of computation; provided further, that
certain one-time extraordinary charges incurred by the Borrower as a
result of the Parisian Acquisition and the Acquisition by the Borrower
of all the capital stock of Younkers, Inc. pursuant to that certain
Agreement and Plan of Merger among the Borrower, Baltic Merger
Corporation and Younkers, Inc. dated as of October 22, 1995 shall be
excluded from the computation of Consolidated EBITDA;
"Consolidated Financing Charges" means those charges owed and
allocated to third parties with respect to accounts receivable
securitizations transacted in the ordinary course of business and
consistent with past practice;
"Consolidated Fixed Charge Ratio" means, with respect to the
Borrower and its Subsidiaries for the Four-Quarter Period ending on
the date of computation thereof, the ratio of (a) Consolidated EBITDA
plus Consolidated Financing Charges plus, to the extent deducted in
arriving at Consolidated EBITDA, lease, rental and all other payments
made in respect of or in connection with operating leases, to (b)
Consolidated Fixed Charges during such Four-Quarter Period;
"Consolidated Fixed Charges" means, with respect to Borrower and
its Subsidiaries, for the periods indicated, the sum of, without
duplication, (i) Consolidated Interest Expense, plus (ii) to the
extent deducted in arriving at Consolidated EBITDA, lease, rental and
all other payments made in respect of or in connection with operating
leases, plus (iii) current maturities of Consolidated Funded Indebtedness,
plus (iv) all dividends and other distributions (other
than distributions in the form of any stock (including without
limitation capital stock of the Borrower), security, note or other
instrument) paid during such period (regardless of when declared) on
any shares of capital stock of the Borrower then outstanding,
including without limitation its Common Stock and its Preferred Stock,
plus (v) Consolidated Financing Charges, all determined on a
consolidated basis in accordance with Generally Accepted Accounting
Principles applied on a Consistent Basis;
"Consolidated Funded Indebtedness" means, at any time as of which
the amount thereof is to be determined, all indebtedness in respect
of money borrowed of the Borrower and its Subsidiaries, including
without limitation all Capital Leases and the deferred purchase price
of any property or asset, evidenced by a promissory note, bond or
similar written obligation for the payment of money (including, but
not limited to, conditional sales or similar title retention
agreements and all current maturities and borrowings under short term
loans) plus the face amount of all issued and outstanding standby
letters of credit and all obligations (to the extent not duplicative)
arising under such letters of credit, all determined on a consolidated
basis in accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis;
"Consolidated Interest Expense" means, with respect to any period
of computation thereof, the gross interest expense of the Borrower and
its Subsidiaries, including without limitation (i) the amortization
of debt discounts, (ii) the amortization of all fees (including,
without limitation, fees payable in respect of a Swap Agreement)
payable in connection with the incurrence of Indebtedness to the
extent included in interest expense and (iii) the portion of any
payments made in connection with Capital Leases allocable to interest
expense, all determined on a consolidated basis in accordance with
Generally Accepted Accounting Principles applied on a Consistent
Basis;
"Consolidated Net Income" means, for any period of computation
thereof, the gross revenues from operations of the Borrower and its
Subsidiaries (including interest income from investments), less all
operating and non-operating expenses of the Borrower and its
Subsidiaries including taxes on income, all determined on a
consolidated basis in accordance with Generally Accepted Accounting
Principles applied on a Consistent Basis; but excluding as income: (i)
net gains on the sale, conversion or other disposition of capital
assets, net gains on the acquisition, retirement, sale or other
disposition of capital stock and other securities of the Borrower or
its Subsidiaries, and net gains on the collection of proceeds of life
insurance policies, which net gains in the aggregate during any Four-Quarter
Period exceed $200,000, (ii) any write-up of any asset, and
(iii) any other net gain or credit of an extraordinary nature, all
determined in accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis;
"Consolidated Net Worth" means at any time as of which the amount
thereof is to be determined, Consolidated Shareholders' Equity minus
the sum of the following (without duplication of deductions in respect
of items already deducted in arriving at surplus and retained
earnings): all reserves (other than contingency reserves not
allocated to any particular purpose), including without limitation
reserves for depreciation, depletion, amortization, obsolescence,
deferred income taxes, insurance and inventory valuation, all as
determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis;
"Consolidated Shareholders' Equity" means at any time as of which
the amount thereof is to be determined, the sum of the following in
respect of the Borrower and its Subsidiaries (determined on a
consolidated basis and excluding intercompany items among the Borrower
and its Subsidiaries and any upward adjustment after the Closing Date
due to revaluation of assets): (i) the amount of issued and outstanding
share capital, plus (ii) the amount of additional paid-in
capital and retained income (or, in the case of a deficit, minus the
amount of such deficit), plus (iii) the amount of any foreign currency
translation adjustment (if positive, or, if negative, minus the amount
of such translation adjustment) minus (iv) the book value of any
treasury stock and the book value of any stock subscription
receivables, all as determined in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis;
"Consolidated Senior Indebtedness" means at any time as of which
the amount thereof is to be determined, the difference of all
Consolidated Funded Indebtedness then outstanding, including without
limitation any Loans, minus the aggregate principal amount of any
Consolidated Funded Indebtedness then outstanding subordinate in terms
acceptable to the Agent and the Required Lenders of payment and
available remedy to the Loans and the terms and conditions set forth
herein, including without limitation Consolidated Subordinated Debt;
"Consolidated Subordinated Debt" means at any time as of which
the amount thereof is to be determined, the sum of the following in
respect of the Borrower and its Subsidiaries determined on a
consolidated basis: (i) the Convertible Subordinated Debentures,
(ii) the Junior Subordinated Debentures, (iii) the Parisian Senior
Subordinated Notes and (iv) all other Consolidated Funded Indebtedness
which is by its terms subordinate in all respects to the Loans as
required by, and in substance acceptable to, the Agent;
"Contingent Obligation" of any Person means (i) all contingent
liabilities required (or which, upon the creation or incurring
thereof, would be required) to be included in the consolidated
financial statements (including footnotes) of such Person in accord-
ance with Generally Accepted Accounting Principles applied on a
Consistent Basis, including Statement No. 5 of the Financial
Accounting Standards Board, (ii) all reimbursement obligations of such
Person with respect to any letter of credit and all obligations of
such Person guaranteeing or in effect guaranteeing any Indebtedness,
dividend or other obligation of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including
obligations of such Person however incurred:
(a) to purchase such Indebtedness or other obligation or
any property or assets constituting security therefor;
(b) to advance or supply funds in any manner (i) for the
purchase or payment of such Indebtedness or other obligation, or
(ii) to maintain a minimum working capital, net worth or other
balance sheet condition or any income statement condition of the
primary obligor;
(c) to grant or convey any lien, security interest,
pledge, charge or other encumbrance on any property or assets of
such Person to secure payment of such Indebtedness or other
obligation;
(d) to lease property or to purchase securities or other
property or services primarily for the purpose of assuring the
owner or holder of such Indebtedness or obligation of the
ability of the primary obligor to make payment of such
Indebtedness or other obligation; or
(e) otherwise to assure the owner of the Indebtedness or
such obligation of the primary obligor against loss in respect
thereof;
with respect to Contingent Obligations (such as litigation, guarantees
and pension plan liabilities), such liabilities shall be computed at
the amount which, in light of all the facts and circumstances existing
at the time, represent the present value of the amount which can
reasonably be expected to become an actual or matured liability;
"Convertible Subordinated Debentures" means the 4 3/4%
Convertible Subordinated Debentures Due 2003 of the Borrower in the
aggregate principal amount of $86,250,000 issued pursuant to that
certain Indenture dated as of October 26, 1993, between the Borrower
and Union Planters National Bank, as trustee (the "Convertible
Subordinated Debentures Indenture");
"Cost of Acquisition" means, as at the date of entering into any
agreement to acquire any Person, the sum of the following: (i) the
value of the capital stock or warrants or options to acquire capital
stock of Borrower or any Subsidiary to be transferred in connection
therewith, (ii) any cash or other property (excluding property
described in clause (i)) or the unpaid principal amount of any debt
instrument given as consideration, and (iii) any Indebtedness or
liabilities assumed by the Borrower or its Subsidiaries in connection
with such acquisition;
"Default" means any event or condition which, with the giving or
receipt of notice or lapse of time or both, would constitute an Event
of Default hereunder;
"Determination Date" means the last day of each fiscal quarterly
period of the Borrower;
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United
States of America;
"Eligible Inventory" means, at any date of determination, the
aggregate book value of all Inventory of the Borrower and its
Subsidiaries which is usable and saleable (excluding from Eligible
Inventory, without limitation, all raw materials and all work-in-
process), less (to the extent otherwise included in Eligible
Inventory) any goods in transit to third parties (other than the
agents or warehouses of the Borrower and its Subsidiaries), goods held
on consignment by any third party, business applications software (not
to include such software as networking, communications and operating
system software) and less any reserves required by Generally Accepted
Accounting Principles for obsolete inventory, market value declines,
bill and hold (deferred shipment) sales and goods returned or
rejected;
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Agent:
(a) Government Securities;
(b) the following debt securities of the following
agencies or instrumentalities of the United States of America if
at all times the full faith and credit of the United States of
America is pledged to the full and timely payment of all
interest and principal thereof:
(i) all direct or fully guaranteed obligations of the
United States Treasury; and
(ii) mortgage-backed securities and participation
certificates guaranteed by the Government National Mortgage
Association;
(c) the following obligations of the following agencies or
instrumentalities of or corporations established by the United
States of America:
(i) participation certificates and debt obligations
of the Federal Home Loan Mortgage Corporation;
(ii) consolidated debt obligations, and obligations
secured by a letter of credit, of the Federal Home Loan
Banks; and
(iii) debt obligations and mortgage-backed
securities of the Federal National Mortgage Association
which have not had the interest portion thereof severed
therefrom;
(d) obligations of any corporation organized under the
laws of any state of the United States of America or under the
laws of any other nation, payable in the United States of
America, expressed to mature not later than 92 days following
the date of issuance thereof and rated in an investment grade
rating category by S&P and Moody's;
(e) interest bearing demand or time deposits issued by any
Lender or certificates of deposit maturing within one year from
the date of acquisition issued by a bank or trust company
organized under the laws of the United States or of any state
thereof having capital surplus and undivided profits aggregating
at least $250,000,000 and being rated A-3 or better by S&P or A
or better by Moody's;
(f) Repurchase Agreements;
(g) Pre-Refunded Municipal Obligations;
(h) shares of mutual funds which invest in obligations
described in paragraphs (a) through (g) above, the shares of
which mutual funds are at all times rated "AAA" by S&P; and
(i) asset-backed remarketed certificates of participation
representing a fractional undivided interest in the assets of a
trust, which certificates are rated at least "A-1" by S&P and
"P-1" by Moody's.
Obligations listed in paragraphs (a), (b) and (c) above which are in
book-entry form must be held in a trust account with the Federal
Reserve Bank or with a clearing corporation or chain of clearing
corporations which has an account with the Federal Reserve Bank;
"Environmental Laws" means, collectively, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, the Superfund Amendments and Reauthorization Act of 1986, the
Resource Conservation and Recovery Act, the Toxic Substances Control
Act, as amended, the Underground Storage Tank Act, as amended, the
Clean Air Act, as amended, the Clean Water Act, as amended, any other
"Superfund" or "Superlien" law or any other applicable statute, law,
ordinance, code, rule, regulation, order or decree, of the United
States or any foreign nation or any province, territory, state,
protectorate or other political subdivision thereof, regulating,
relating to, or imposing liability or standards of conduct concerning,
any pollutant, contaminant or hazardous, toxic or dangerous waste,
substance or material or any storage tank;
"ERISA" means, at any date, the Employee Retirement Income
Security Act of 1974, as amended, and the regulations thereunder, all
as the same shall be in effect at such date;
"Eurodollar Base Rate" means, for any Eurodollar Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Telerate Page 3750
(or any successor page) as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period. If for any reason such rate
is not available, the term "Eurodollar Base Rate" shall mean, for any
Eurodollar Loan for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Reuters Screen LIBO Page as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period; provided, however, if more
than one rate is specified on Reuters Screen LIBO Page, the applicable
rate shall be the arithmetic mean of all such rates;
"Eurodollar Business Day" means a domestic Business Day and one
on which the relevant international financial markets are open for the
transaction of the business contemplated by this Agreement (including
without limitation dealings in U.S. Dollar deposits) in London,
England, New York, New York and Atlanta, Georgia;
"Eurodollar Loan" means a Revolving Credit Loan for which the
rate of interest is determined by reference to the Eurodollar Rate;
"Eurodollar Rate" means, for the Interest Period for any
Eurodollar Loan, the rate of interest per annum determined pursuant
to the following formula:
Applicable
Eurodollar = Eurodollar Base Rate + Interest Rate
1 - Reserve Requirement Addition
"Event of Default" means any of the occurrences set forth as such
in Section 9.01 hereof;
"Federal Funds Effective Rate" for any day, as used herein, means
the rate per annum (rounded upward to the nearest 1/100 of 1%)
announced by the Federal Reserve Bank of New York (or any successor)
on such day as being the weighted average of the rates on overnight
Federal funds transactions arranged by Federal funds brokers on the
previous trading day, as computed and announced by such Federal
Reserve Bank (or any successor) in substantially the same manner as
such Federal Reserve Bank computes and announces the weighted average
it refers to as the "Federal Funds Effective Rate" as of the date of
this Agreement; provided, if such Federal Reserve Bank (or its
successor) does not announce such rate on any day, the "Federal Funds
Effective Rate" for such day shall be the Federal Funds Effective Rate
for the last day on which such rate was announced;
"Fiscal Year" means the 52-week or 53-week period of the Borrower
ending on the Saturday of each calendar year closest (whether before
or after) to January 31;
"Fiscal Year End" means the last day of a Fiscal Year and "Fiscal
Year End" followed by a numerical year means the last day of the
Fiscal Year beginning in such calendar year;
"Foreign Benefit Law" means any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign
national or any province, state, territory, protectorate or other
political subdivision thereof regulating, relating to, or imposing
liability or standards of conduct concerning, any pension, retirement,
healthcare, death, disability or other employee benefit plan;
"Four-Quarter Period" means a period of four full consecutive
quarter annual periods, taken together as one accounting period, and
in the event any such quarter annual period occurs prior to the
effective date of the Parisian Acquisition, or is the period in which
such effective date occurs (each a "Pre-Acquisition Period"), all
financial statements, data, computations and determinations for such
Four-Quarter Period shall be made on a pro forma basis for each
Pre-Acquisition Period giving effect to the Parisian Acquisition for all
prior periods;
"GAAP" or "Generally Accepted Accounting Principles" means those
principles of accounting set forth in pronouncements of the Financial
Accounting Standards Board, the American Institute of Certified Public
Accountants or which have other substantial authoritative support and
are applicable in the circumstances as of the date of a report, as
such principles are from time to time supplemented and amended,
subject to compliance at all times with Section 1.02 hereof;
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America;
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, agency or instrumentality or political subdivision
thereof or any entity or officer exercising executive, legislative or
judicial, regulatory or administrative functions of or pertaining to
any government or any court, in each case whether a state of the
United States, the United States or foreign nation, state, province
or other governmental instrumentality;
"Guarantors" means, collectively, (i) each Subsidiary existing
on the Closing Date, other than a Securitization Subsidiary, and (ii)
any other Person who shall become a Subsidiary, other than a
Securitization Subsidiary, after the Closing Date and shall execute
and deliver to the Agent a Guaranty as provided in Section 7.20
hereof;
"Guaranty" means each Guaranty Agreement of a Guarantor (whether
delivered now or hereafter in accordance with Section 7.20 hereof
individually or jointly and severally with other Guarantors) in favor
of the Agent guaranteeing in whole or in part the payment of
Obligations, substantially in the form of Exhibit E attached hereto
and incorporated herein by reference, as the same may be amended,
modified or supplemented;
"Hazardous Material" means and includes any pollutant,
contaminant or hazardous, toxic or dangerous waste, substance or
material (including petroleum products, asbestos-containing materials
and lead), the management, generation, handling, storage,
transportation, disposal, treatment, release, discharge or emission
of which is subject to any Environmental Law;
"Indebtedness" means with respect to any Person, without
duplication, all Indebtedness for Money Borrowed, all indebtedness of
such Person for the acquisition of property, all indebtedness secured
by any Lien on the property of such Person whether or not such
indebtedness is assumed, all liability of such Person by way of
endorsements (other than for collection or deposit in the ordinary
course of business), all Contingent Obligations, all Rate Hedging
Obligations, that portion of obligations with respect to Capital
Leases and other items which in accordance with Generally Accepted
Accounting Principles is classified as a liability on a balance sheet;
but excluding all accounts payable and accruals, in each case in the
ordinary course of business and only so long as payment therefor is
due within one year; provided that in no event shall the term
Indebtedness include surplus and retained earnings, minority interest
in Subsidiaries, lease obligations (other than pursuant to Capital
Leases), reserves for deferred income taxes and investment credits,
other deferred credits and reserves, and deferred compensation
obligations;
"Indebtedness for Money Borrowed" means for any Person all
indebtedness in respect of money borrowed, including without
limitation all Capital Leases and the deferred purchase price of any
property or asset, evidenced by a promissory note, bond or similar
written obligation for the payment of money (including, but not
limited to, conditional sales or similar title retention agreements);
"Interest Period" for each Eurodollar Loan means a period
commencing on the date such Eurodollar Loan is made or converted and
each subsequent period commencing on the last day of the immediately
preceding Interest Period for such Eurodollar Loan, and ending, at the
Borrower's option, on the date one, two, three or six months
thereafter as notified to the Agent by the Authorized Representative
three (3) Eurodollar Business Days prior to the beginning of such
Interest Period; provided, that,
(i) if the Authorized Representative fails to notify the
Agent of the length of an Interest Period three (3) Eurodollar
Business Days prior to the first day of such Interest Period,
the Loan for which such Interest Period was to be determined
shall be deemed to be a Base Rate Loan;
(ii) if an Interest Period for a Eurodollar Loan would end
on a day which is not a Eurodollar Business Day such Interest
Period shall be extended to the next Eurodollar Business Day
(unless such extension would cause the applicable Interest
Period to end in the succeeding calendar month, in which case
such Interest Period shall end on the next preceding Eurodollar
Business Day);
(iii) any Interest Period which begins on the last
Eurodollar Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Eurodollar Business Day of a calendar month;
(iv) no Interest Period shall extend past the Revolving
Credit Termination Date;
(v) on any day, with respect to all Revolving Credit
Loans, there shall be not more than four (4) Interest Periods in
effect;
"Inventory" means and includes any and all goods, merchandise and
other personal property wheresoever located and whether now owned or
hereafter acquired by the Borrower or its Subsidiaries which is or may
at any time be held for sale or lease, or held as raw materials, work-in
-process, or supplies or materials used or consumed in the Borrower's or
its Subsidiaries' businesses;
"Junior Subordinated Debentures" means the 7.5% Junior
Subordinated Debentures Due March 31, 2004 of the Borrower issued in
the original aggregate principal amount of $17,500,000;
"LC Account Agreement" means the LC Account Agreement dated as
of the date of the initial issuance of any Letter of Credit hereunder
between the Borrower and the Agent, as amended, modified or
supplemented from time to time;
"Lending Office" means, as to each Lender, the Lending Office of
such Lender designated on the signature pages hereof or in an
Assignment and Acceptance or such other office of such Lender (or of
an affiliate of such Lender) as such Lender may from time to time
specify to the Authorized Representative and the Agent as the office
by which its Loans are to be made and maintained;
"Letter of Credit" means a standby letter of credit issued by
NationsBank for the account of the Borrower in favor of a Person
advancing credit or securing an obligation on behalf of the Borrower;
"Letter of Credit Commitment" means with respect to each Lender,
the obligation of such Lender to acquire Participations up to an
aggregate stated amount at any one time outstanding equal to such
Lender's Applicable Commitment Percentage of the Total Letter of
Credit Commitment as the same may be increased or decreased from time
to time pursuant to this Agreement;
"Letter of Credit Facility" means the facility described in
Article III hereof providing for the issuance by NationsBank for the
account of the Borrower of Letters of Credit in an aggregate stated
amount at any time outstanding not exceeding the Total Letter of
Credit Commitment;
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Borrower and its
Subsidiaries shall be deemed to be the owners of any property which
either of them have acquired or hold subject to a conditional sale
agreement, financing lease, or other arrangement pursuant to which
title to the property has been retained by or vested in some other
Person for security purposes;
"Loan" or "Loans" means any of the Revolving Credit Loans or
Swing Line Loans;
"Loan Documents" means this Agreement, the Notes, the Guaranties,
Applications and Agreements for Letters of Credit, each Letter of
Credit, the LC Account Agreement and all other instruments and
documents heretofore or hereafter executed or delivered to and in
favor of any Lender or the Agent in connection with the Loans or the
Letters of Credit made, issued or created under this Agreement as the
same may be amended, modified or supplemented from time to time;
"Material Adverse Effect" means a material adverse effect on (i)
the business, properties, prospects, assets, operations or condition,
financial or otherwise, of the Borrower or any Subsidiary or (ii) the
ability of the Borrower or any Guarantor to observe and perform the
covenants and agreements contained herein or in any other Loan
Document or the ability of any Lender to receive the benefit of any
remedy provided thereto under any Loan Document;
"Multi-employer Plan" means an employee pension benefit plan
covered by Title IV of ERISA and in respect of which the Borrower or
any Subsidiary is an "employer" as described in Section 4001(b) of
ERISA, which is also a multi-employer plan as defined in Section
4001(a)(3) of ERISA;
"Net Proceeds" from a disposition of assets (other than assets
sold in the ordinary course of business and accounts receivable sold
in connection with an accounts receivable securitization transacted
in the ordinary course of business and consistent with past practice)
or issuance of equity or Indebtedness means cash payments received
therefrom as and when received, net of (i) all reasonable legal,
accounting, banking, underwriting, title and recording expenses,
commissions, discounts and other fees and expenses incurred in
connection therewith, (ii) all taxes required to be paid or accrued
as a consequence of such disposition or issuance and (iii) all amounts
necessary to repay Indebtedness for Borrowed Money the repayment of
which is secured by such disposed assets;
"NCMI" means NationsBanc Capital Markets, Inc.;
"Notes" means, collectively, the Revolving Credit Notes and the
Swing Line Note;
"Obligations" means the obligations, liabilities and Indebtedness
of the Borrower with respect to (i) the principal and interest on the
Loans as evidenced by the Notes, (ii) the Reimbursement Obligations,
(iii) all liabilities of Borrower to any Lender which arise under a
Swap Agreement, and (iv) the payment and performance of all other
obligations, liabilities and Indebtedness of the Borrower to the
Lenders or the Agent hereunder, under any one or more of the other
Loan Documents or with respect to the Loans;
"Outstandings" means, at any time of determination, the sum of
the Revolving Credit Outstandings, Outstanding Letters of Credit and
Swing Line Outstandings;
"Outstanding Letters of Credit" means all undrawn amounts of
Letters of Credit plus all Reimbursement Obligations;
"Parisian" means Parisian, Inc., an Alabama corporation, acquired
on the Closing Date by the Borrower as part of the Parisian
Acquisition and thereafter a Subsidiary;
"Parisian Acquisition" means the Acquisition by the Borrower of
Parisian wherein each issued and outstanding share of Parisian's
common shares will be converted into cash and shares of the common
stock of Proffitt's, substantially in accordance with the terms and
conditions of the Purchase Agreement;
"Parisian Indenture" means that certain Amended and Restated
Indenture dated as of September 12, 1996 among the Borrower, Parisian
and AmSouth Bank of Alabama (formerly known as AmSouth Bank, N.A.),
trustee;
"Parisian Senior Subordinated Notes" means the 9.875% Senior
Subordinated Notes Due 2003 of Parisian in the aggregate principal
amount of $125,000,000 issued pursuant to the Parisian Indenture;
"Participation" means, with respect to any Lender (other than
NationsBank), the extension of credit represented by the participation
of such Lender hereunder in the liability of NationsBank in respect
of a Swing Line Loan made or Letter of Credit issued by NationsBank
in accordance with the terms hereof;
"Permitted Acquisition" means an Acquisition of an entity
(whether an asset purchase or equity purchase) or assets beyond the
normal course of business effected with the consent and approval of
the board of directors or other applicable governing body of such
entity or seller of such assets, and with the duly obtained approval
of such shareholders or other holders of equity interest as such
entity or seller of such assets may be required to obtain, so long as
(i) immediately prior to and immediately after the consummation of
such Acquisition, no Default or Event of Default has occurred and is
continuing, (ii) substantially all of the sales and operating profits
generated by such Person (or assets) so acquired or invested are
derived from the same or related line or lines of business as then
conducted by the Borrower and its Subsidiaries and (iii) if the Cost
of Acquisition therefor equals or exceeds $25,000,000, pro forma
historical financial statements as of the end of the most recently
completed Fiscal Year giving effect to such Acquisition are delivered
to the Agent not less than five (5) Business Days prior to the
consummation of such Acquisition, together with a certificate of an
Authorized Representative demonstrating compliance with the financial
covenants set forth in Article VIII hereof after giving effect to such
Acquisition;
"Person" means an individual, partnership, limited partnership,
corporation, limited liability corporation, trust, unincorporated
organization, association, joint venture or a government or agency or
political subdivision thereof;
"Pre-Refunded Municipal Obligations" means obligations of any
state of the United States of America or of any municipal corporation
or other public body organized under the laws of any such state which
are rated, based on the escrow, in the highest investment rating
category by both S&P and Moody's and which have been irrevocably
called for redemption and advance refunded through the deposit in
escrow of Government Securities or other debt securities which are (i)
not callable at the option of the issuer thereof prior to maturity,
(ii) irrevocably pledged solely to the payment of all principal and
interest on such obligations as the same becomes due and (iii) in a
principal amount and bear such rate or rates of interest as shall be
sufficient to pay in full all principal of, interest, and premium, if
any, on such obligations as the same becomes due as verified by a
nationally recognized firm of certified public accountants;
"Prime Rate" means the rate of interest per annum announced
publicly by NationsBank as its prime rate from time to time. The
Prime Rate is not necessarily the best or the lowest rate of interest
offered by NationsBank;
"Principal Office" means the office of the Agent at NationsBank
of Texas National Association, NationsBank Plaza, 901 Main Street,
67th Floor, Dallas, Texas 75202 Attention: Ms. Renitta Cummings,
Agency Services , or such other office and address as the Agent may
from time to time designate;
"Purchase Agreement" means that certain Agreement and Plan of
Merger by and among Parisian, Casablanca Merger Corp., an Alabama
corporation and wholly owned subsidiary of the Borrower, and Borrower
dated as of July 8, 1996 setting forth the terms and conditions of the
Parisian Acquisition;
"Rate Hedging Obligations" means any and all obligations of the
Borrower, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals,
extensions and modifications thereof and substitutions therefor),
under (a) any and all agreements, devices or arrangements designed to
protect at least one of the parties thereto from the fluctuations of
interest rates, exchange rates or forward rates applicable to such
party's assets, liabilities or exchange transactions, including, but
not limited to, Dollar-denominated or cross-currency interest rate
exchange agreements, forward currency exchange agreements, interest
rate cap or collar protection agreements, forward rate currency or
interest rate options, puts, warrants and those commonly known as
interest rate "swap" agreements; and (b) any and all cancellations,
buybacks, reversals, terminations or assignments of any of the
foregoing;
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time;
"Regulatory Change" means any change in, or the adoption or
making of new, United States federal or state laws or regulations
(including Regulation D and capital adequacy regulations) or foreign
laws or regulations or the adoption or making after such date of any
interpretations, directives or requests applying to a class of banks,
which includes any of the Lenders, under any United States federal or
state or foreign laws or regulations (whether or not having the force
of law) by any court or governmental or monetary authority charged
with the interpretation or administration thereof or compliance by any
Lender with any request or directive regarding capital adequacy,
whether or not having the force of law, whether or not failure to
comply therewith would be unlawful;
"Reimbursement Obligation" shall mean at any time, the obligation
of the Borrower with respect to any Letter of Credit to reimburse
NationsBank and the Lenders to the extent of their respective
Participations (including by the receipt by NationsBank of proceeds
of Loans pursuant to Section 3.02 hereof) for amounts theretofore paid
by NationsBank pursuant to a drawing under such Letter of Credit;
"Repurchase Agreement" means a repurchase agreement entered into
with (i) any financial institution whose debt obligations or
commercial paper are rated "A" by either of S&P or Moody's or "A-1"
by S&P or "P-1" by Moody's, or (ii) any Lender;
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating at least 51%
of the aggregate Credit Exposures of all the Lenders on such date.
For purposes of the preceding sentence, the amount of the "Credit
Exposure" of each Lender shall be equal at all times (i) other than
following the occurrence and during the continuance of an Event of
Default, to its Revolving Credit Commitment, and (ii) following the
occurrence and during the continuance of an Event of Default, to the
aggregate principal amount of Revolving Credit Loans owing to such
Lender plus the amount of such Lender's Applicable Commitment
Percentage of Swing Line Outstandings and Outstanding Letters of
Credit; provided that, if any Lender shall have failed to pay to
NationsBank its Applicable Commitment Percentage of any Swing Line
Loan or drawing under any Letter of Credit resulting in an outstanding
Reimbursement Obligation, such Lender's Credit Exposure attributable
to such Swing Line Outstandings or Outstanding Letters of Credit or
both shall be deemed to be held by NationsBank for purposes of this
definition;
"Reserve Requirement" means, for any Eurodollar Loan, the maximum
aggregate rate at which reserves (including, without limitation, any
marginal, supplemental or emergency reserves) are required to be
maintained with respect thereto under Regulation D by the member banks
of the Federal Reserve System with respect to Dollar funding in the
London interbank market. Without limiting the effect of the
foregoing, the Reserve Requirement shall reflect any other reserves
required to be maintained by such member banks by reason of any
Regulatory Change against (i) any category of liabilities which
includes deposits by reference to which the Eurodollar Base Rate is
to be determined or (ii) any category of extensions of credit or other
assets which include Eurodollar Loans;
"Revolving Credit Commitment" means with respect to each Lender,
the obligation of such Lender to make Revolving Credit Loans to the
Borrower up to an aggregate principal amount at any one time
outstanding equal to the amount set forth opposite such Lender's name
on Exhibit A hereto as the same may be increased or decreased from
time to time pursuant to this Agreement;
"Revolving Credit Facility" means the facility described in
Section 2.01 hereof providing for Loans to the Borrower by the Lenders
in the aggregate principal amount equal to (i) the lesser of the
Borrowing Base and the Total Revolving Credit Commitment, less (ii)
the aggregate principal amount of Swing Line Outstandings and
Outstanding Letters of Credit;
"Revolving Credit Loan" means a Loan made pursuant to the
Revolving Credit Facility (but specifically excludes all Swing Line
Loans);
"Revolving Credit Notes" means, collectively, the promissory
notes of the Borrower evidencing Revolving Credit Loans executed and
delivered to the Lenders as provided in Section 2.07(a) hereof
substantially in the form attached hereto as Exhibit F and
incorporated herein by reference, with appropriate insertions as to
amounts, dates and names of Lenders, as the same shall be amended,
modified or supplemented and in effect from time to time;
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Revolving Credit
Loans then outstanding;
"Revolving Credit Termination Date" means (i) October 11, 1999
or (ii) such earlier date of termination of Lenders' obligations
pursuant to Section 9.01 upon the occurrence of an Event of Default,
or (iii) such date as the Borrower may voluntarily and permanently
terminate the Revolving Credit Facility by payment in full of all
Obligations (including the discharge of all Obligations of NationsBank
and the Lenders with respect to Letters of Credit and Participations)
or (iv) such later date as the Borrower and the Lenders shall agree
in writing pursuant to Section 2.15 hereof;
"S&P" means Standard & Poor's Corporation, a New York
corporation;
"Securitization Subsidiary" means a special purpose Subsidiary
created exclusively for the purpose of and is only engaged in accounts
receivable securitizations transacted in the ordinary course of
business and consistent with past practice of the Borrower or any
Subsidiary for the benefit of the Borrower and its Subsidiaries;
"Single Employer Plan" means any employee pension benefit plan
covered by Title IV of ERISA and in respect of which the Borrower or
any Subsidiary is an "employer" as described in Section 4001(b) of
ERISA, which is not a Multi-employer Plan;
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets (both at fair valuation
and at present fair saleable value on an orderly basis) is in
excess of the total amount of its liabilities, including,
without limitation, Contingent Obligations; and
(ii) it is then able and expects to be able to pay its
debts as they mature; and
(iii) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"Subsidiary" means any corporation or other entity in which more
than 50% of its outstanding voting stock or more than 50% of all
equity interests is owned directly or indirectly by the Borrower
and/or by one or more of the Borrower's Subsidiaries at or after the
Closing Date, including without limitation Parisian at all times after
the Parisian Acquisition;
"Swap Agreement" means one or more agreements between the
Borrower and another Person, on terms mutually acceptable to the
Borrower and such Person, which agreements create Rate Hedging
Obligations;
"Swing Line" means the revolving line of credit established by
NationsBank in favor of the Borrower pursuant to Section 2.02;
"Swing Line Loans" means Loans made by NationsBank to the
Borrower pursuant to Section 2.02;
"Swing Line Note" means the promissory note of the Borrower
evidencing Swing Line Loans executed and delivered to NationsBank
substantially in the form attached hereto as Exhibit G and
incorporated herein by reference, as the same shall be amended,
modified or supplemented and in effect from time to time;
"Swing Line Outstandings" means, as of any date of determination,
the aggregate principal amount of all Swing Line Loans then
outstanding;
"Swing Line Termination Date" has the meaning assigned to such
term in Section 2.02(g) hereof;
"Total Letter of Credit Commitment" means an amount equal to
$15,000,000;
"Total Revolving Credit Commitment" means an amount equal to
$275,000,000, as reduced from time to time in accordance with Section
2.09;
the Total Letter of Credit Commitment and the Total Swing Line
Commitment
are included within, and are not in addition to, the Total Revolving
Credit
Commitment; and
"Total Swing Line Commitment" means an amount equal to
$20,000,000.
1.02 Accounting Terms. All accounting terms not specifically defined
herein shall have the meanings assigned to such terms and shall be
interpreted in accordance with Generally Accepted Accounting Principles
as in effect on the date of the audited financial statements of the
Borrower referred to in Section 6.01(f)(i) hereof and applied on a
Consistent Basis.
1.03 Terms Consistent. All of the terms defined in this Agreement
shall have such defined meanings when used in any of the Loan Documents
unless the context shall require otherwise. All references to the
Borrower, the Agent and any Lender shall be deemed to include any
successor or permitted assign of any thereof. All plural references and
definitions shall have a corresponding meaning in the singular, and all
singular references and definitions shall have a corresponding meaning
in the plural.
ARTICLE I
The Loans
2.01 Revolving Credit Loans.
(a) Commitment. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Revolving Credit Loans
to the Borrower, from time to time on a pro rata basis as to the total
borrowing requested by the Borrower on any day determined by its
Applicable Commitment Percentage of the Total Revolving Credit
Commitment up to but not exceeding the Revolving Credit Commitment of
such Lender; provided, however, that the Lenders will not be required
and shall have no obligation to make any Advance (i) so long as a
Default or an Event of Default has occurred and is continuing or (ii) if
the Agent has accelerated the maturity of the Revolving Credit Notes as
a result of an Event of Default; provided further, however, that
immediately after giving effect to each such Advance, the principal
amount of Outstandings shall not exceed the lesser of the Borrowing Base
or the Total Revolving Credit Commitment. Within such limits, the
Borrower may borrow, repay and reborrow hereunder, on a Business Day in
the case of a Base Rate Loan and on a Eurodollar Business Day in the
case of a Eurodollar Loan, from the Closing Date until, but (as to
borrowings and reborrowings) not including, the Revolving Credit
Termination Date; provided, however, that (x) no Eurodollar Loan shall
be made which has an Interest Period that extends beyond the Revolving
Credit Termination Date and (y) each Eurodollar Loan may be repaid only
on the last day of the Interest Period with respect thereto unless such
repayment is accompanied by amounts due, if any, under Section 4.04.
(b) Amounts. The aggregate unpaid principal amount of the
Outstandings shall not exceed at any time an amount equal to the lesser
of the Borrowing Base or the Total Revolving Credit Commitment. Each
Revolving Credit Loan made, converted or continued, unless made in
accordance with Sections 2.01(c)(iv) or 3.02(c) hereof, shall be in a
principal amount of at least $5,000,000, and, if greater than
$5,000,000, an integral multiple of $1,000,000.
(c) Advances and Rate Selection.
(i) An Authorized Representative shall give the Agent (1) at
least three (3) Eurodollar Business Days' irrevocable telephonic
notice of each Eurodollar Loan (whether representing an additional
borrowing hereunder or the conversion of borrowing hereunder from Base
Rate Loans to Eurodollar Loans or the continuation of borrowing
hereunder of Eurodollar Loans) prior to 10:30 A.M., Dallas, Texas
time; and (2) irrevocable telephonic notice of each Base Rate Loan
representing an additional borrowing hereunder or the conversion of
borrowing hereunder from Eurodollar Loans to Base Rate Loans prior to
10:30 A.M. Dallas, Texas time on the day of such proposed Base Rate
Loan. Each such Borrowing Notice, which shall be effective upon
receipt by the Agent, shall specify the amount of the Advance, the
type (Base or Eurodollar) of Loan, the date of the Advance and, if a
Eurodollar Loan, the Interest Period to be used in the computation of
interest. The Authorized Representative shall provide the Agent
written confirmation of each such telephonic notice on the same day
by telefacsimile transmission in the form of a Borrowing Notice, for
additional Advances, or in the form attached hereto as Exhibit H and
incorporated herein by reference as to selection or conversion of
interest rates as to outstanding Revolving Credit Loans, in each case
with appropriate insertions, but failure to provide such confirmation
shall not affect the validity of such telephonic notice. The duration
of the initial Interest Period for each Loan that is a Eurodollar Loan
shall be as specified in the initial Borrowing Notice. The Borrower
shall have the option to elect the duration of subsequent Interest
Periods and to convert the Loans (other than Swing Line Loans) in
accordance with Section 2.11 hereof. If the Agent does not receive
a notice of election of duration of an Interest Period or to convert
by the time prescribed hereby and by Section 2.11 hereof, the Borrower
shall be deemed to have elected to convert such Revolving Credit Loan
to (or continue such Revolving Credit Loan as) a Base Rate Loan until
the Borrower notifies the Agent in accordance herewith and with
Section 2.11.
(ii) Notice of receipt of each Borrowing Notice shall be
provided by the Agent to each Lender with reasonable promptness,
but not later than 1:00 P.M., Dallas, Texas time on the same day
as Agent's receipt of such notice. The Agent shall provide each
Lender written confirmation of such telephonic confirmation by
telefacsimile transmission but failure to provide such notice
shall not affect the validity of such telephonic notice.
(iii) Not later than 3:00 P.M., Dallas, Texas time on the
date specified for each Advance of a Revolving Credit Loan, each
Lender shall, pursuant to the terms and subject to the conditions of
this Agreement, make the amount of the Revolving Credit Loan or Loans
to be made by it on such day available to the Agent, by depositing or
transferring the proceeds thereof in immediately available funds at
the Principal Office. The amount so received by the Agent shall,
subject to the terms and conditions of this Agreement, be made
available to the Borrower by delivery of the proceeds thereof to the
Borrower's Account or otherwise as shall be directed in the applicable
Borrowing Notice by the Authorized Representative.
(iv) Notwithstanding the foregoing, if a drawing is made under
any Letter of Credit prior to the Revolving Credit Termination Date,
then notice of such drawing shall be provided promptly by NationsBank
to the Agent and the drawing shall be paid by the Agent without the
requirement of notice from the Borrower from immediately available
funds which shall be advanced by NationsBank under the Swing Line
(provided that a Swing Line Loan shall then be available). If a
drawing is presented under any Letter of Credit in accordance with the
terms thereof and if a Swing Line Loan in the amount of such drawing
shall not be available and Borrower shall not immediately reimburse
NationsBank for the amount of such drawing or payment, then notice of
such drawing or payment shall be provided promptly by NationsBank to
the Agent and the Agent shall provide notice to each Lender by
telephone. If notice to the Lenders of a drawing under any Letter of
Credit is given by the Agent at or before 12:00 noon Dallas, Texas
time on any Business Day, the Borrower shall be deemed to have
requested, and each Lender shall, pursuant to the conditions of this
Agreement, make a Base Rate Loan under the Revolving Credit Facility
in the amount of such Lender's Applicable Commitment Percentage of
such drawing or payment and shall pay such amount to the Agent for the
account of NationsBank at the Principal Office in Dollars and in
immediately available funds before 2:30 P.M. Dallas, Texas time on the
same Business Day. If notice to the Lenders is given by the Agent
after 12:00 noon Dallas, Texas time on any Business Day, the Borrower
shall be deemed to have requested, and each Lender shall, pursuant to
the terms and subject to the conditions of this Agreement, make a Base
Rate Loan under the Revolving Credit Facility in the amount of such
Lender's Applicable Commitment Percentage of such drawing or payment
and shall pay such amount to the Agent for the account of NationsBank
at the Principal Office in Dollars and in immediately available funds
before 12:00 noon Dallas, Texas time on the next following Business
Day. Such Base Rate Loan shall continue unless and until the Borrower
converts such Base Rate Loan in accordance with the terms of Section
2.11 hereof.
2.02 Swing Line. Notwithstanding any other provision of this
Agreement to the contrary, in order to administer the Revolving Credit
Facility in an efficient manner and to minimize the transfer of funds
between the Agent and the Lenders, NationsBank shall make available
Swing Line Loans to the Borrower prior to the Revolving Credit
Termination Date. Each provision of Section 2.01(c) hereof applicable
to Base Rate Loans shall be applicable in all respects to each Swing
Line Loan.
(a) NationsBank shall not make any Swing Line Loan pursuant hereto
(i) if the Borrower is not in compliance with all the conditions to the
making of Revolving Credit Loans set forth in this Agreement, (ii) if
after giving effect to such Swing Line Loan, the Swing Line Outstandings
exceed the Total Swing Line Commitment, or (iii) if after giving effect
to such Swing Line Loan, the sum of all Outstandings exceeds the lesser
of the Borrowing Base or the Total Revolving Credit Commitment.
(b) All Advances made by NationsBank under the Swing Line pursuant
to this Section 2.02 outstanding on any day shall bear interest at the
rate agreed to between the Borrower and NationsBank and, unless made in
accordance with Section 2.01(c)(iv), shall be in the minimum principal
amount of $1,000,000 and any increment of $100,000 in excess thereof.
(c) The principal amount of each Swing Line Loan shall be payable on
the earlier to occur of (i) the repayment thereof with a Revolving
Credit Loan pursuant to Section 2.02(e) below and (ii) the Swing Line
Termination Date.
(d) The Borrower and each Lender which is or may become a party
hereto acknowledge that all Swing Line Loans are to be made solely by
NationsBank to the Borrower but that such Lender shall share the risk of
loss with respect to such Advances by making an Advance under the
Revolving Credit Facility to repay such Swing Line Loan in an amount
equal to such Lender's Applicable Commitment Percentage of such Swing
Line Loan. The obligation of each Lender to so pay its ratable share of
the principal amount of outstanding Swing Line Loans by making such
Advances under the Revolving Credit Facility up to but not exceeding the
Revolving Credit Commitment of such Lender shall be absolute and
unconditional and shall be made without counterclaim, deduction or
set-off by such Lender. Without limiting the generality of the
foregoing, each Lender's obligation to pay its ratable share of the principal
amount of all outstanding Swing Line Loans by making such Revolving
Credit Loans as set forth above in this Section 2.02(d) shall not be
affected by:
(i) any failure or inability of the Borrower to satisfy the
applicable conditions to borrowing set forth in Section 5.02,
(ii) any lack of validity or enforceability of this Agreement or
any of the other Loan Documents, or
(iii) the occurrence of any Default or Event of Default.
(e) NationsBank may, at any time, in its sole discretion, by written
notice to the Borrower, the Agent and the Lenders, demand repayment of
its Swing Line Loans. Any such demand for repayment of the Swing Line
Loans, and the occurrence of the Swing Line Termination Date, shall be
deemed to constitute a Borrowing Notice pursuant to Section 2.01(c)(i)
and (ii), effective on the date of such demand or occurrence,
respectively, with respect to a Base Rate Loan advanced under the
Revolving Credit Facility on the date of such Borrowing Notice in the
aggregate principal amount of all outstanding Swing Line Loans. Each
Lender shall pay to the Agent, for the account of NationsBank, an amount
of such Base Rate Loan equal to its Applicable Commitment Percentage
(determined before giving effect to any termination of the Revolving
Credit Commitments pursuant to Section 9.01) in the manner described in
Section 2.01(c)(iii).
(f) The Agent shall upon the receipt of an Advance as a Revolving
Credit Loan pursuant to Section 2.02(e) in an amount sufficient to repay
any or all Swing Line Loans then outstanding, provide to NationsBank the
amount necessary to repay such Swing Line Loan or Loans (which
NationsBank shall then apply to such repayment) and credit any balance
of the Revolving Loan in immediately available funds to the Borrower's
Account.
(g) The Swing Line shall continue in effect until the earlier of (i)
occurrence and continuation of a Default, or (ii) the Revolving Credit
Termination Date (the "Swing Line Termination Date").
2.03 Payment of Interest. (a) The Borrower shall pay interest to the
Agent at the Principal Office for the account of each Lender on the
outstanding and unpaid principal amount of each Loan made by such Lender
for the period commencing on the date of such Loan until such Loan shall
be due (i) in the case of each Revolving Credit Loan, at the Eurodollar
Rate or the Base Rate, as elected or deemed elected by the Borrower or
otherwise applicable to such Loan as herein provided, and (ii) in the
case of each Swing Line Loan, at the rate per annum agreed to between
the Borrower and NationsBank; provided, however, that if any amount
shall not be paid when due (at maturity, by acceleration or otherwise),
all amounts outstanding hereunder shall bear interest thereafter (i) in
the case of a Eurodollar Loan, at a rate of interest per annum which
shall be two percent (2%) above the Eurodollar Rate for such Eurodollar
Loan until the end of the Interest Period during which such payment was
due, and thereafter at a rate of interest per annum which shall be two
percent (2%) above the Base Rate, and (ii) in the case of a Base Rate
Loan or a Swing Line Loan, at a rate of interest per annum which shall
be two percent (2%) above the Base Rate, or (in each case) the maximum
rate permitted by applicable law, whichever is lower, from the date such
amount was due and payable until the date such amount is paid in full.
(b) Interest on the outstanding principal balance of each Loan shall
be computed on the basis of a year of 360 days and calculated for the
actual number of days elapsed. Interest on each Loan shall be paid
(i) quarterly in arrears on the last Business Day of each December,
March, June or September, commencing December 31, 1996, on each Base
Rate Loan and each Swing Line Loan, (ii) on the last day of the
applicable Interest Period for each Eurodollar Loan and, for any
Eurodollar Loan having an Interest Period of six months, also on the
last day of the third month of such Interest Period, and (iii) upon
payment or prepayment in full of the principal amount of such Loan.
2.04 Payment of Principal. The principal amount of the Revolving
Credit Outstandings and all Swing Line Outstandings shall be due and
payable to the Agent for the benefit of each Lender in full on the
Revolving Credit Termination Date, or earlier as herein expressly
provided. The principal amount of Base Rate Loans and Swing Line Loans
may be prepaid in whole or in part at any time. The principal amount of
Eurodollar Loans may only be prepaid at the end of the applicable
Interest Period, unless the Borrower shall pay to the Agent for the
account of the Lenders the amount, if any, required under Section 4.04
hereof. In the event that at any time Outstandings exceed the lesser of
the Borrowing Base or the Total Revolving Credit Commitment, a principal
amount of the Revolving Credit Outstandings equal to or greater than
such excess shall be due and payable immediately. All prepayments made
by the Borrower shall be in the amount of $5,000,000 or such greater
amount which is an integral multiple of $1,000,000, or such other amount
as necessary to comply with this Section 2.04 or with Section 2.9(a) or
(b).
2.05 Non-Conforming Payments. (a) Each payment of principal
(including any prepayment) and payment of interest shall be made to the
Agent at the Principal Office, for the account of each Lender's
applicable Lending Office, in Dollars and in immediately available funds
before 12:30 P.M. Dallas, Texas time on the date such payment is due.
The Agent may, but shall not be obligated to, debit the amount of any
such payment which is not made by such time to any ordinary deposit
account, if any, of the Borrower with the Agent. The Borrower shall
give the Agent prior telephonic notice of any payment of principal, such
notice to be given by not later than 11:00 a.m. Dallas, Texas time, on
the date of such payment.
(b) The Agent shall deem any payment by or on behalf of the Borrower
hereunder that is not made both (i) in Dollars and in immediately
available funds and (ii) prior to 12:30 P.M. Dallas, Texas time on the
date payment is due to be a non-conforming payment. Any such payment
shall not be deemed to be received by the Agent until the time such
funds become available funds. Any non-conforming payment shall
constitute or become a Default or Event of Default. The Agent shall
give prompt notice to the Authorized Representative and each of the
Lenders (confirmed in writing) if any payment is non-conforming.
Interest shall continue to accrue on any principal as to which a
non-conforming payment is made until such funds become available funds
(but
in no event less than the period from the date of such payment to the
next succeeding Business Day) at the respective rates of interest per
annum specified in Section 2.03(a) in respect of late payments of
interest, from the date such amount was due and payable until the date
such amount is paid in full.
(c) In the event that any payment hereunder or under the Notes
becomes due and payable on a day other than a Business Day, then such
due date shall be extended to the next succeeding Business Day unless
provided otherwise under clause (ii) under the definition of "Interest
Period;" provided that interest shall continue to accrue during the
period of any such extension.
2.06 Borrower's Account. The Borrower shall continuously maintain
the Borrower's Account for the purposes herein contemplated.
2.07 Notes. (a) Revolving Credit Loans made by each Lender shall
be evidenced by, and be repayable with interest in accordance with the
terms of, the Revolving Credit Note payable to the order of such Lender
in the amount of its Revolving Credit Commitment, which Revolving Credit
Note shall be dated the Closing Date or such later date pursuant to an
Assignment and Acceptance and shall be duly completed, executed and
delivered by the Borrower.
(b) Swing Line Loans made by NationsBank shall be evidenced by, and
be repayable with interest in accordance with the terms of, the Swing
Line Note dated the Closing Date and duly executed and delivered by the
Borrower.
2.08 Pro Rata Payments. Except as otherwise provided herein,
(a) each payment and prepayment on account of the principal of and
interest on the Revolving Credit Loans and the fees described in Section
2.12 hereof shall be made to the Agent in the aggregate amount payable
to the Lenders for the account of the Lenders pro rata based on their
Applicable Commitment Percentages, (b) all payments to be made by the
Borrower for the account of each of the Lenders on account of principal,
interest and fees, shall be made without set-off or counterclaim, and
(c) the Agent will promptly distribute such payments received to the
Lenders as provided for herein.
2.09 Reductions.
(a) Voluntary. The Borrower shall, by notice from an Authorized
Representative, have the right from time to time (but not more
frequently than once during each calendar quarter upon not less than
five (5) Business Days written notice to the Agent) to reduce the Total
Revolving Credit Commitment. The Agent shall give each Lender, within
one (1) Business Day, telephonic notice (confirmed in writing) of such
reduction. Each such reduction shall be in the amount of $10,000,000 or
such greater amount which is in an integral multiple of $5,000,000, and
shall permanently reduce the Total Revolving Credit Commitment and the
Revolving Credit Commitment of each Lender pro rata. No such reduction
shall be permitted that results in the payment of any Eurodollar Loan
other than on the last day of the Interest Period of such Loan unless
such prepayment is accompanied by amounts due, if any, under Section
4.04. Each reduction of the Total Revolving Credit Commitment shall be
accompanied by payment of the principal amount of the Revolving Credit
Outstandings to the extent that the Outstandings exceed the lesser of
the Borrowing Base or the Total Revolving Credit Commitment after giving
effect to such reduction, together with accrued and unpaid interest on
the amounts prepaid.
(b) Mandatory. Aggregate Net Proceeds in excess of $10,000,000
received by the Borrower from the disposition of assets in any one or
more transactions during any consecutive twelve (12) month period
between the Closing Date and the Revolving Credit Termination Date shall
be applied to reduce permanently the Total Revolving Credit Commitment
and payment of the principal amount of the Revolving Credit Outstandings
in accordance with the terms set forth in subsection (a) above without
regard to limitations on the amount of such reduction, but subject in
any event to payment by the Borrower of all amounts that may be due
under Section 4.04 hereof as a result of any prepayment of Revolving
Credit Loans required in connection with such permanent reduction of
the Total Revolving Credit Commitment pursuant to subsection (a) above.
2.10 Increase and Decrease in Amounts. The amount of the Total
Revolving Credit Commitment or the Borrowing Base, whichever shall be
lesser, which shall be available to the Borrower shall be reduced by the
aggregate amount of all Outstandings.
2.11 Conversions and Elections of Subsequent Interest Periods.
Provided that no Default or Event of Default shall have occurred and be
continuing and subject to the limitations set forth below and in
Sections 4.01(b), 4.02 and 4.03 hereof, the Borrower may:
(a) upon notice to the Agent on or before 10:30 A.M. Dallas, Texas
time on any Business Day convert all or a part of Eurodollar Loans to
Base Rate Loans on the last day of the Interest Period for such
Eurodollar Loans; and
(b) on three (3) Eurodollar Business Days' notice to the Agent on or
before 10:30 A.M. Dallas, Texas time:
(i) elect a subsequent Interest Period for all or a portion of
Eurodollar Loans to begin on the last day of the current Interest
Period for such Eurodollar Loans; or
(ii) convert Base Rate Loans (other than Swing Line Loans) to
Eurodollar Loans on any Eurodollar Business Day.
Notice of any such elections or conversions shall specify the
effective date of such election or conversion and, with respect to
Eurodollar Loans, the Interest Period to be applicable to the Loan as
continued or converted. Each election and conversion pursuant to this
Section 2.11 shall be subject to the limitations on Eurodollar Loans set
forth in the definition of "Interest Period" herein and in Sections
2.01(a), (b) and (c) and Article IV hereof. All such continuations or
conversions of Loans shall be effected pro rata based on the Applicable
Commitment Percentages of the Lenders.
2.12 Fees.
(a) Unused Fee. For the period beginning on the Closing Date and
ending on the Revolving Credit Termination Date, the Borrower agrees to
pay to the Agent, for the pro rata benefit of the Lenders based on their
Applicable Commitment Percentages of the Revolving Credit Facility, the
Applicable Unused Fee payable quarterly in arrears on the sum of the
daily amount by which the Total Revolving Credit Commitment exceeds the
sum of the average daily (i) Revolving Credit Outstandings and (ii)
Outstanding Letters of Credit. The Swing Line Outstandings shall not be
outstanding Loans for purposes of determining such fee. Such payments
of fees provided for in this Section 2.12 shall be due in arrears on the
last Business Day of each December, March, June and September beginning
December 31, 1996 to and on the Revolving Credit Termination Date.
Notwithstanding the foregoing, so long as any Lender fails to make
available any portion of its Revolving Credit Commitment when requested,
such Lender shall not be entitled to receive payment of its pro rata
share of such fee until such Lender shall make available such portion.
Such fee shall be calculated on the basis of a year of 360 days for the
actual number of days elapsed.
(b) Upfront Fee. The Borrower agrees to pay to the Agent, for the
benefit of each Lender, a fee on the Closing Date (the "Upfront Fee") in
the amounts set forth on Exhibit L attached hereto and incorporated
herein by reference.
2.13 Deficiency Advances. No Lender shall be responsible for any
default of any other Lender in respect to such other Lender's obligation
to make any Loan hereunder nor shall the Revolving Credit Commitment of
any Lender hereunder be increased as a result of such default of any
other Lender. Without limiting the generality of the foregoing, in the
event any Lender shall fail to advance funds to the Borrower as herein
provided, the Agent may in its discretion, but shall not be obligated
to, advance under the applicable Note in its favor as a Lender all or
any portion of such amount or amounts (each, a "deficiency advance") and
shall thereafter be entitled to payments of principal of and interest on
such deficiency advance in the same manner and at the same interest rate
or rates to which such other Lender would have been entitled had it made
such advance under its applicable Note; provided that, upon payment to
the Agent from such other Lender of the entire outstanding amount of
each such deficiency advance, together with accrued and unpaid interest
thereon, from the most recent date or dates interest was paid to the
Agent by the Borrower on each Loan comprising the deficiency advance at
the interest rate per annum for overnight borrowing by the Agent from
the Federal Reserve Bank, then such payment shall be credited against
the applicable Note of the Agent in full payment of such deficiency
advance and the Borrower shall be deemed to have borrowed the amount of
such deficiency advance from such other Lender as of the most recent
date or dates, as the case may be, upon which any payments of interest
were made by the Borrower thereon.
2.14 Use of Proceeds. The proceeds of the Loans made pursuant to the
Revolving Credit Facility and the Swing Line hereunder shall be used by
the Borrower to finance in part the Parisian Acquisition and for other
general corporate purposes of the Borrower.
2.15 Extension of Revolving Credit Termination Date. At the request
of the Borrower the Lenders may, in their sole discretion, elect to
extend the Revolving Credit Termination Date then in effect for up to
two additional periods of one year each. The Borrower shall notify the
Agent of its request for such an extension by delivering to the Agent
notice of such request signed by an Authorized Representative not more
than ninety (90) days nor less than sixty (60) days prior to either or
both of the first or second anniversary of the Closing Date. The Agent
shall as promptly as practicable, and in any event within five (5) days,
deliver a copy of such notice to each Lender. If each Lender shall
elect to so extend and has notified the Agent in writing of its election
within fifty (50) days of its receipt of such notice, the Agent shall
notify the Borrower in writing within sixty (60) days of its receipt of
such request for extension of the decision of the Lenders to extend the
Revolving Credit Termination Date. Failure by any Lender to give such
notice shall constitute refusal by the Lenders to extend the Revolving
Credit Termination Date. In no event shall the Revolving Credit
Termination Date extend beyond October 11, 2001.
2.16 Additional Fees. In addition to any fees described above, the
Borrower agrees to pay to the Agent and NationsBank such other fees as
may be agreed to in a separate writing or writings.
ARTICLE II
Letters of Credit
3.01 Letters of Credit. NationsBank agrees, subject to the terms and
conditions of this Agreement, upon request and for the account of
Borrower, to issue from time to time Letters of Credit upon delivery to
NationsBank of an Application and Agreement for Letter of Credit in form
and content acceptable to NationsBank; provided, that the Outstanding
Letters of Credit shall not exceed the Total Letter of Credit
Commitment. No Letter of Credit shall be issued by NationsBank with an
expiry date or payment date occurring subsequent to the fifth Business
Day preceding the Revolving Credit Termination Date. NationsBank shall
not be required to issue any Letter of Credit if the Outstandings when
added to the face amount of any requested Letter of Credit exceed the
lesser of the Borrowing Base or the Total Revolving Credit Commitment.
3.02 Reimbursement.
(a) The Borrower hereby unconditionally and irrevocably agrees
immediately to pay to NationsBank on demand at the Principal Office all
amounts required to pay all drafts drawn or purporting to be drawn under
the Letters of Credit and all reasonable expenses incurred by
NationsBank in connection with the Letters of Credit and in any event
and without demand to place in possession of NationsBank (which shall
include Advances under the Revolving Credit Facility) sufficient funds
to pay all debts and liabilities arising under any Letter of Credit.
The Borrower's obligations to pay NationsBank under this Section 3.02,
and NationsBank's right to receive the same, shall be absolute,
irrevocable and unconditional and shall not be affected by any
circumstance whatsoever. NationsBank agrees to give the Borrower prompt
written notice of any request for a draw under a Letter of Credit.
NationsBank may charge any account the Borrower may have with it for any
and all amounts NationsBank pays under a Letter of Credit, plus charges
and reasonable expenses as from time to time agreed to by NationsBank
and the Borrower; provided that to the extent permitted by
Section 2.01(c)(iv) hereof, such amounts shall be paid pursuant to Swing
Line Loans or Advances under the Revolving Credit Facility. The
Borrower agrees that NationsBank may, in its sole discretion, accept or
pay, as complying with the terms of any Letter of Credit, any drafts or
other documents otherwise in order which may be signed or issued by an
administrator, executor, trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, liquidator, receiver, attorney in
fact or other legal representative of a party who is authorized under
such Letter of Credit to draw or issue any drafts or other documents.
The Borrower agrees to pay NationsBank interest on any amounts not paid
when due hereunder at the Base Rate plus two percent (2%), or the
maximum rate permitted by applicable law, if lower.
(b) In accordance with the provisions of Section 2.01(c) hereof,
NationsBank shall notify the Agent (and shall also notify the Borrower)
of any drawing under any Letter of Credit as promptly as practicable
following the receipt by NationsBank of such drawing.
(c) Each Lender (other than NationsBank) shall automatically acquire
on the date of issuance thereof, a Participation in the liability of
NationsBank in respect of each Letter of Credit in an amount equal to
such Lender's Applicable Commitment Percentage of such liability, and to
the extent that the Borrower is obligated to pay NationsBank under
Section 3.02(a), each Lender (other than NationsBank) thereby shall, as
hereinafter described, absolutely, unconditionally and irrevocably
assume, and shall be unconditionally obligated to pay to NationsBank its
Applicable Commitment Percentage of the liability of NationsBank under
such Letter of Credit in the manner set forth below:
(i) Prior to the Revolving Credit Termination Date, each Lender
(including NationsBank in its capacity as a Lender) shall, subject to
the terms and conditions of Article II, make a Revolving Credit Loan
bearing interest at the Base Rate to the Borrower by paying to the
Agent for the account of NationsBank at the Principal Office in
Dollars and in immediately available funds, an amount equal to its
Applicable Commitment Percentage of any drawing under a Letter of
Credit, all as described in and pursuant to Section 2.01(c)(iv).
(ii) With respect to drawings under any of the Letters of Credit
for which a Revolving Credit Loan is not made as set forth in clause
(i) above, each Lender, upon receipt from the Agent of notice of a
drawing in the manner described in Section 2.01(c), shall promptly pay
to the Agent for the account of NationsBank, prior to the applicable
time set forth in Section 2.01(c), its Applicable Commitment
Percentage of such drawing. Simultaneously with the making of each
such payment by a Lender to the Agent for the account of NationsBank,
such Lender shall, automatically and without any further action on the
part of NationsBank or such Lender, acquire a Participation in an
amount equal to such payment (excluding the portion thereof
constituting interest) in the related Reimbursement Obligation of the
Borrower. The Lenders acquisition of and payment for Participations
in any Reimbursement Obligation as set forth in this clause (ii) shall
occur only if such Reimbursement Obligation is not paid pursuant to
Swing Line Loans or Advances under the Revolving Credit Facility. The
Reimbursement Obligations of the Borrower shall be immediately due and
payable whether by Advances made in accordance with Section 2.01(c)
or otherwise.
(iii) Each Lender's obligation to make payment to the
Agent for the account of NationsBank pursuant to this Section
3.02(c), and the right of NationsBank to receive the same, shall
be made without any offset, abatement, withholding or reduction
whatsoever. If any Lender is obligated to pay but does not pay
amounts to the Agent for the account of NationsBank in full upon
such request as required by this Section 3.02(c), such Lender
shall, on demand, pay to the Agent for the account of
NationsBank interest on the unpaid amount for each day during
the period commencing on the date of notice given to such Lender
pursuant to Section 2.01(c) until such Lender pays such amount
to the Agent for the account of NationsBank in full at the
interest rate per annum for overnight borrowing by NationsBank
from the Federal Reserve Bank.
(iv) In the event the Lenders have purchased Participations in
any Reimbursement Obligation as set forth in clause (ii) above, then
at any time payment is received by NationsBank as issuer of the Letter
of Credit from the Borrower of such Reimbursement Obligation, in whole
or in part, NationsBank shall pay to each Lender an amount equal to
its Applicable Commitment Percentage of such payment from the
Borrower.
(v) Nothing contained herein shall be deemed to release
NationsBank from any obligation it may incur to reimburse any Lender
arising from NationsBank's wrongful payment of a drawing under any
Letter of Credit as a result of its gross negligence or willful
misconduct.
(d) Promptly following the end of each calendar quarter, NationsBank
shall deliver to the Agent, and the Agent shall deliver to each Lender,
a notice describing the aggregate undrawn amount of all Letters of
Credit at the end of such quarter. Upon the request of any Lender from
time to time, NationsBank shall deliver to the Agent, and the Agent
shall deliver to such Lender, any other information reasonably requested
by such Lender with respect to each Outstanding Letter of Credit.
(e) The issuance by NationsBank of each Letter of Credit shall, in
addition to the conditions precedent set forth in Section 5.01 hereof,
be subject to the conditions that such Letter of Credit be in such form
and contain such terms as shall be reasonably satisfactory to
NationsBank consistent with the then current practices and procedures of
NationsBank with respect to similar letters of credit, and the Borrower
shall have executed and delivered such other instruments and agreements
relating to such Letters of Credit as NationsBank shall have reasonably
requested consistent with such practices and procedures. All Letters of
Credit shall be issued pursuant to and subject to the Uniform Customs
and Practice for Documentary Credits, 1993 revision, International
Chamber of Commerce Publication No. 500 and all subsequent amendments
and revisions thereto.
(f) Without duplication of Section 10.07 hereof, the Borrower hereby
agrees to defend, indemnify and hold harmless NationsBank, each other
Lender and the Agent from and against any and all claims and damages,
losses, liabilities, reasonable costs and expenses which NationsBank,
such other Lender or the Agent may incur (or which may be claimed
against NationsBank, such other Lender or the Agent) by any Person by
reason of or in connection with the issuance or transfer of or payment
or failure to pay under any Letter of Credit; provided that the Borrower
shall not be required to indemnify NationsBank, any other Lender or the
Agent for any claims, damages, losses, liabilities, costs or expenses to
the extent, but only to the extent, caused by the willful misconduct or
gross negligence of the party to be indemnified. The provisions of this
Section 3.02(f) shall survive repayment of the Obligations, the
occurrence of the Revolving Credit Termination Date, and expiration or
termination of this Agreement.
(g) Without limiting Borrower's rights as set forth in Section
3.02(f) above, the obligation of the Borrower to immediately reimburse
Agent for drawings made under Letters of Credit shall be absolute,
unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement and such Letters of Credit
and the related Applications and Agreements for Letters of Credit, under
the following circumstances:
(i) any lack of validity or enforceability of the Letter of
Credit, the obligation supported by the Letter of Credit or any other
agreement or instrument relating thereto (collectively, the "Related
Documents");
(ii) any amendment or waiver of or any consent to or departure
from all or any of the Related Documents;
(iii) the existence of any claim, setoff, defense or other
rights which 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), Agent, Lenders
or any other Person, whether in connection with the Loan Documents,
the Related Documents or any unrelated transaction;
(iv) any breach of contract or other dispute between the Borrower
and any beneficiary or any transferee of a Letter of Credit (or any
persons or entities for whom such beneficiary or any such transferee
may be acting), Agent, Lenders or any other Person;
(v) any draft, statement or any other document presented under
the 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 whatsoever;
(vi) any delay, extension of time, renewal, compromise or other
indulgence or modification granted or agreed to by Agent, with or
without notice to or approval by the Borrower in respect of any of
Borrower's Obligations under this Agreement; or
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing; provided, however, that
nothing contained herein shall be deemed to release NationsBank or any
other Lender of any liability for actual loss arising as a result of
its gross negligence or willful misconduct.
3.03 Letter of Credit Fee. The Borrower agrees to pay (i) to the
Agent, for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages, a fee per annum on the aggregate amount
available to be drawn on each Outstanding Letter of Credit at a rate
equal to the Applicable Interest Addition to the Eurodollar Rate as in
effect from time to time which fee shall be deemed immediately earned
when paid and (ii) to NationsBank, as issuer of each Letter of Credit,
an issuance fee equal to .125% of the aggregate amount available to be
drawn on each Outstanding Letter of Credit which fee shall be deemed
immediately earned when paid. Such payments of fees provided for in
this Section 3.03 with respect to each Letter of Credit shall be made on
the date of issuance of such Letter of Credit and thereafter payable
quarterly in arrears. Such fees shall be calculated on the basis of a
year of 360 days for the actual number of days elapsed.
3.04 Administrative Fees. The Borrower shall pay to NationsBank such
administrative fee and other fees, if any, in connection with the
Letters of Credit in such amounts and at such times as NationsBank and
the Borrower shall agree from time to time.
ARTICLE III
Yield Protection and Illegality
4.01 Additional Costs. (a) The Borrower shall promptly pay to the
Agent for the account of a Lender from time to time, without
duplication, such amounts as such Lender may determine to be necessary
to compensate it for any costs incurred by such Lender which it
determines are attributable to its making or maintaining any Loan or its
obligation to make any Loans, or the issuance or maintenance by
NationsBank of or any other Lender's Participation in any Letter of
Credit issued hereunder, or any reduction in any amount receivable by
such Lender under this Agreement, the Notes or the Letters of Credit in
respect of any of such Loans or such obligation or the Letters of
Credit, including reductions in the rate of return on a Lender's capital
(such increases in costs and reductions in amounts receivable and
returns being herein called "Additional Costs"), resulting from any
Regulatory Change which: (i) changes the basis of taxation of any
amounts payable to such Lender under this Agreement or the Notes in
respect of any of such Loans or Letters of Credit (other than taxes
imposed on or measured by the income, revenues or assets of any Lender);
or (ii) imposes or modifies any reserve, special deposit, or similar
requirements relating to any extensions of credit or other assets of, or
any deposits with or other liabilities of, such Lender (other than any
such reserve, deposit or requirement reflected in the Eurodollar Rate
computed in accordance with the definition of such term set forth in
Section 1.01 hereof); or (iii) has or would have the effect of reducing
the rate of return on capital of any such Lender to a level below that
which the Lender could have achieved but for such Regulatory Change
(taking into consideration such Lender's policies, or policies of the
parent corporation of such Lender, with respect to capital adequacy); or
(iv) imposes any other condition adversely affecting the Agent or the
Lenders under this Agreement, the Notes or the issuance or maintenance
of, or any Lender's Participation in, the Letters of Credit (or any of
such extensions of credit or liabilities). Each Lender will notify the
Authorized Representative and the Agent of any event occurring after the
Closing Date which would entitle it to compensation pursuant to this
Section 4.01(a) as promptly as practicable after it obtains knowledge
thereof and determines to request such compensation.
(b) Without limiting the effect of the foregoing provisions of this
Section 4.01, in the event that, by reason of any Regulatory Change, any
Lender either (i) incurs Additional Costs based on or measured by the
excess above a specified level of the amount of a category of deposits
or other liabilities of the Lender which includes deposits by reference
to which the interest rate on Eurodollar Loans is determined as provided
in this Agreement or a category of extensions of credit or other assets
of any Lender which includes Eurodollar Loans or (ii) becomes subject to
restrictions on the amount of such a category of liabilities or assets
which it may hold, then, if the Lender so elects by notice to the other
Lenders, the obligation hereunder of such Lender to make and continue,
and to convert Base Rate Loans into, Eurodollar Loans that are the
subject of such restrictions shall be suspended until the date such
Regulatory Change ceases to be in effect and the Borrower shall, on the
last day(s) of the then current Interest Period(s) for outstanding
Eurodollar Loans convert such Eurodollar Loans into Base Rate Loans;
provided, however, that the suspension of such obligation and the
conversion of any Eurodollar Loans into Base Rate Loans shall apply only
to any Lender who is affected by such restrictions and who has provided
such notice to the other Lenders, and the obligation of the other
Lenders to make, and to convert Base Rate Loans into Eurodollar Loans
shall not be affected by such restrictions. In the event that the
obligation of some, but not all of the Lenders to make, or to convert
Base Rate Loans into Eurodollar Loans is suspended, then any request by
the Borrower during the pendency of such suspension for a Eurodollar
Loan shall be deemed a request for such Eurodollar Loan from the
Lender(s) not subject to such suspension and for a Base Rate Loan from
the Lender(s) who are subject to such suspension, in each case in the
respective amounts based on the Lenders' respective Revolving Credit
Commitments.
(c) Determinations by any Lender for purposes of this Section 4.01
of the effect of any Regulatory Change on its costs of making or
maintaining, or being committed to make, Loans or Participations in any
Letter of Credit or by NationsBank as issuer of any Letter of Credit of
the effect of any Regulatory Change on its costs in connection with the
issuance or maintenance of any Letter of Credit issued hereunder, or on
amounts receivable by any Lender in respect of Loans or Letters of
Credit, and of the additional amounts required to compensate the Lender
in respect of any Additional Costs, shall be made on a reasonable basis
taking into account such Lender's reasonable policies, or the policies
of the parent corporation of such Lender, as to the allocation of
capital, costs and other items. The Lender requesting such compensation
shall furnish to the Authorized Representative and the Agent an
explanation of the Regulatory Change and calculations, in reasonable
detail, setting forth such Lender's determination of any such Additional
Costs.
4.02 Suspension of Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any interest
rate for any Eurodollar Loan for any Interest Period, the Agent
determines (which determination made on a reasonable basis shall be
conclusive absent manifest error) that:
(a) quotations of interest rates for the relevant deposits
referred to in the definition of Eurodollar Rate in Section 1.01
hereof are not being provided in the relevant amounts or for the
relevant maturities for purposes of determining the rate of interest
for such Eurodollar Loan as provided in this Agreement; or
(b) the relevant rates of interest referred to in the definition
of "Eurodollar Base Rate" in Section 1.01 hereof upon the basis of
which the Eurodollar Rate for such Interest Period is to be determined
do not adequately reflect the cost to the Lenders of making or
maintaining such Eurodollar Loan for such Interest Period or such
Eurodollar Loan (which determination shall be made on a reasonable
basis by the Agent, and the Person making such determination shall
furnish the Authorized Representative evidence of the facts leading
to such determination);
then the Agent shall give the Authorized Representative prompt notice
thereof, and so long as such condition remains in effect, the Lenders
shall be under no obligation to make Eurodollar Loans that are subject
to such condition, or to convert Loans into Eurodollar Loans, and the
Borrower shall on the last day(s) of the then current Interest Period(s)
for outstanding Eurodollar Loans, as applicable, convert such Eurodollar
Loans into Base Rate Loans. The Agent shall give the Authorized
Representative notice describing in reasonable detail any event or
condition described in this Section 4.02 promptly following the
determination by the Agent that the availability of Eurodollar Loans is,
or is to be, suspended as a result thereof.
4.03 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender to honor
its obligation to make or maintain Eurodollar Loans hereunder, then such
Lender shall promptly notify the Borrower thereof (with a copy to the
Agent) and such Lender's obligation to make or continue Eurodollar
Loans, or convert Base Rate Loans into Eurodollar Loans, shall be
suspended until such time as such Lender may again make and maintain
Eurodollar Loans, and such Lender's outstanding Eurodollar Loans shall
be converted into Base Rate Loans in accordance with Section 2.11
hereof. In the event that the obligation of some, but not all of the
Lenders to make, or to convert Base Rate Loans into Eurodollar Loans is
suspended, then any request by the Borrower during the pendency of such
suspension for a Eurodollar Loan shall be deemed a request for such
Eurodollar Loan from the Lender(s) not subject to such suspension and
for a Base Rate Loan from the Lender(s) who are subject to such
suspension, in each case in the respective amounts based on the Lenders'
respective Revolving Credit Commitments.
4.04 Compensation. The Borrower shall promptly pay to each Lender,
upon the request of such Lender, such amount or amounts as shall be
sufficient (in the reasonable determination of Lender) to compensate it
for any loss, cost or expense incurred by it as a result of:
(a) any payment, prepayment or conversion of a Eurodollar Loan
on a date other than the last day of the Interest Period for such
Eurodollar Loan, including without limitation any conversion required
pursuant to this Article IV; or
(b) any failure by the Borrower to borrow a Eurodollar Loan on
the date for such borrowing specified in the relevant Borrowing Notice
or interest rate selection notice under Article II hereof; such
compensation to include, without limitation, an amount equal to the
excess, if any, of (i) the amount of interest which would have accrued
on the principal amount so paid, prepaid or converted or not borrowed
for the period from the date of such payment, prepayment or conversion
or failure to borrow or convert to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow
or convert, the Interest Period for such Loan which would have
commenced on the date scheduled for such borrowing or conversion) at
the applicable rate of interest for such Eurodollar Loan provided for
herein over (ii) the Eurodollar Base Rate (as reasonably determined
by the Agent) for Dollar deposits of amounts comparable to such
principal amount and maturities comparable to such period. A
determination of a Lender as to the amounts payable pursuant to this
Section 4.04 shall be conclusive. The Lender requesting compensation
under this Section 4.04 shall furnish to the Authorized Representative
and the Agent calculations in reasonable detail setting forth such
Lender's determination of the amount of such compensation.
4.05 Alternate Interest Rate. In the event any Lender suspends the
making of any Eurodollar Loan pursuant to this Article IV (herein a
"Restricted Lender"), the Restricted Lender's Commitment Percentage of
any Eurodollar Loan shall bear interest at the Base Rate until the
Restricted Lender once again makes available the applicable Eurodollar
Loan. Notwithstanding the provisions of Section 2.03(b), interest shall
be payable to the Restricted Lender at the time and manner as paid to
those Lenders making available Eurodollar Loans.
4.06 Taxes. All payments by the Borrower of principal of, and
interest on, the Loans and all other amounts payable hereunder shall be
made free and clear of and without deduction for any present or future
excise, stamp or other taxes, fees, duties, levies, imposts, charges,
deductions, withholdings or other charges of any nature whatsoever
imposed by any taxing authority, but excluding (i) franchise taxes, (ii)
any taxes other than withholding taxes and taxes that would be imposed
as a result of a connection between a Lender or the Agent and the
jurisdiction imposing such taxes (other than a connection arising solely
by virtue of the activities of such Lender or the Agent pursuant to or
in respect of this Agreement or any other Loan Document) and (iii) any
taxes imposed on or measured by any Lender's assets, net income,
receipts or branch profits (such non-excluded items being collectively
called "Taxes"). In the event that any withholding or deduction from
any payment to be made by the Borrower hereunder is required in respect
of any Taxes pursuant to any applicable law, rule or regulation, then
the Borrower will
(a) pay directly to the relevant authority the full amount required
to be so withheld or deducted;
(b) promptly forward to the Agent an official receipt or other
documentation satisfactory to the Agent evidencing such payment to such
authority; and
(c) pay to the Agent for the account of the Lender such additional
amount or amounts as is necessary to ensure that the net amount actually
received by each Lender will equal the full amount such Lender would
have received had no such withholding or deduction been required.
Prior to the date that any Lender or participant organized under the
laws of a jurisdiction outside the United States becomes a party hereto,
such Person shall deliver to the Borrower and the Agent such
certificates, documents or other evidence, as required by the Code or
Treasury Regulations issued pursuant thereto, properly completed,
currently effective and duly executed by such Lender or participant
establishing that such payment is (i) not subject to United States
Federal backup withholding tax and (ii) not subject to United States
Federal withholding tax under the Code because such payment is either
effectively connected with the conduct by such Lender or participant of
a trade or business in the United States or totally exempt from United
States Federal withholding tax by reason of the application of the
provisions of a treaty to which the United States is a party or such
Lender is otherwise exempt.
If the Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Agent, for the account of the
respective Lender, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Lenders for any incremental
Taxes, interest or penalties that may become payable by any Lender as a
result of any such failure. For purposes of this Section 4.06, a
distribution hereunder by the Agent or any Lender to or for the account
of any Lender shall be deemed a payment by the Borrower.
ARTICLE IV
Conditions to Making Loans and Issuing
Letters of Credit
5.01 Conditions of Initial Advance and Issuance of Letters of Credit.
The obligation of the Lenders to make the initial Advance and of
NationsBank to issue the Letters of Credit is subject to the following
conditions precedent:
(a) The Agent shall have received on the Closing Date, in form and
substance satisfactory to the Agent and Lenders, or otherwise be
satisfied as to, each of the following:
(i) executed originals of each of this Agreement, the Notes and
the other Loan Documents, together with all schedules and exhibits
thereto;
(ii) favorable written opinions of special counsel to the
Borrower and the Guarantors dated the Closing Date, addressed to the
Agent and the Lenders and satisfactory to the Agent, the Lenders and
to Smith Helms Mulliss & Moore, L.L.P., special counsel to the Agent,
substantially in the form of Exhibit I attached hereto and
incorporated herein by reference; and the opinion of counsel to
Parisian to be delivered pursuant to Section 6.3(b) of the Purchase
Agreement and the opinion of counsel to the Borrower to be delivered
pursuant to Section 6.2(b) of the Purchase Agreement, on which
opinions the Agent and each Lender is expressly entitled to rely in
accordance therewith;
(iii) resolutions of the boards of directors or other
appropriate governing body (or of the appropriate committee thereof)
of the Borrower and each of the Guarantors certified by its secretary
or assistant secretary or other appropriate official as of the Closing
Date, appointing (in the case of the Borrower) the initial Authorized
Representative and approving and adopting the Loan Documents to be
executed by such Person, and authorizing the execution and delivery
thereof and the incurrence of obligations thereunder;
(iv) specimen signatures of officers of the Borrower and each
Guarantor executing the Loan Documents on behalf of such Person,
certified by the secretary or assistant secretary or other appropriate
official of the Borrower or Guarantor, as applicable;
(v) the charter documents or documents of establishment of the
Borrower and each Guarantor certified as of a recent date by the
Secretary of State or other appropriate Governmental Authority of its
jurisdiction of incorporation;
(vi) the by-laws of the Borrower and, to the extent the same
exist, each Guarantor certified as of the Closing Date as true and
correct by the secretary or assistant secretary of the Person to whom
such by-laws relate;
(vii) certificates issued as of a recent date by the
Secretary of State or other appropriate Governmental Authority of its
jurisdiction of incorporation as to the due existence and, if issued
by such Governmental Authority, good standing of the Borrower and each
Guarantor therein;
(viii) appropriate certificates of qualification to do
business, good standing and, where appropriate, authority to conduct
business under assumed name, issued in respect of the Borrower and
each Guarantor as of a recent date by the Secretary of State or other
appropriate Governmental Authority of each jurisdiction in which the
failure to be qualified to do business or authorized so to conduct
business could result in a Material Adverse Effect;
(ix) notice of appointment of the initial Authorized
Representative of the Borrower in the form of Exhibit C hereto;
(x) certificate of an Authorized Representative dated the
Closing Date demonstrating compliance with the financial covenants
contained in Sections 8.01 through 8.05 and calculating the Borrowing
Base, all as of the immediately preceding Determination Date,
substantially in the form of Exhibit J attached hereto;
(xi) evidence of insurance required by Section 7.05;
(xii) an initial Borrowing Notice;
(xiii) all fees payable by the Borrower on the Closing Date
to the Agent, NationsBank and the Lenders;
(xiv) a copy certified by an officer of the Borrower of the
Purchase Agreement in form and substance acceptable to all Lenders and
evidence satisfactory to the Agent demonstrating completion of the
Parisian Acquisition in accordance with the terms of the Purchase
Agreement;
(xv) copies certified by an officer of the Borrower of the
required written consents, approvals, authorizations and other actions
authorizing and approving the Parisian Acquisition by each Person
party to an agreement, instrument, indenture, license or other
document set forth on Schedule 2.4 or 3.4 of the disclosure schedule
delivered as part of the Purchase Agreement or a certification by an
officer of the Borrower that such consent, approval, or authorization
was not required to consummate the Parisian Acquisition;
(xvi) evidence certified by an officer of the Borrower of any
regulatory approval required for the Parisian Acquisition, including
without limitation all approvals referred to in Section 6.1(b) of the
Purchase Agreement;
(xvii) such historical financial statements and other
information with respect to Parisian or the Parisian Acquisition as
the Agent or any Lender shall reasonably request;
(xviii) consolidated financial statements of the Borrower and
its Subsidiaries for the Fiscal Years 1994 and 1995, including balance
sheets, income and cash flow statements, audited by independent public
accountants of recognized national standing and prepared in conformity
with GAAP, and historical pro forma consolidated financial statements
for the Fiscal Years 1994 and 1995 giving effect to the Parisian
Acquisition;
(xix) a certificate of an officer of the Borrower certifying
on behalf of the Borrower as to the fulfillment or waiver as of the
Closing Date of each of the conditions set forth in Section 6.1 and
6.3 of the Purchase Agreement and that no other conditions remain to
consummation of the Parisian Acquisition other than the filing of
appropriate articles of merger with the Secretary of State of the
State of Alabama;
(xx) a certificate of an officer of Parisian certifying on behalf
of Parisian as to the fulfillment or waiver as of the Closing Date of
each of the conditions set forth in Sections 6.1 and 6.2 of the
Purchase Agreement and that no other conditions remain to consummation
of the Parisian Acquisition other than the filing of appropriate
articles of merger with the Secretary of State of the State of
Alabama;
(xxi) a certificate of an officer of Parisian certifying on
behalf of Parisian as to a current and complete copy of the Parisian
Indenture as of the Closing Date, such certificate and the Parisian
Indenture being in form and substance acceptable to the Agent; and
(xxii) such other documents, instruments, certificates and
opinions as the Agent or any Lender may reasonably request on or prior
to the Closing Date in connection with the consummation of the
transactions contemplated hereby.
(b) Approval of the Parisian Acquisition by the holders of not less
than a majority in aggregate principal amount of the Parisian Senior
Subordinated Notes as required by the terms thereof and as referred to
in Section 3.18 of the Purchase Agreement and delivery to the Agent of
a certification of such approval by an officer of the Borrower in form
and substance acceptable to the Agent;
(c) Approval of the Parisian Acquisition by the holders of not less
than two-thirds of the outstanding shares of the common shares, par
value $.01 per share, of Parisian as required and as referred to in
Section 3.18 of the Purchase Agreement and delivery to the Agent of a
certification of such approval by an officer of the Borrower in form and
substance acceptable to the Agent;
(d) Each of the following shall have occurred or be true:
(i) there shall not be any action, suit, investigation or
proceeding pending or threatened in any court or before any arbitrator
or governmental authority that purports to affect the Borrower or its
Subsidiaries, or Parisian or its subsidiaries, or any transaction
contemplated hereby (including without limitation the Parisian
Acquisition), or that could have a Material Adverse Effect on the
Borrower or its Subsidiaries or any transaction contemplated hereby
or on the ability of the Borrower and its Subsidiaries to perform
their obligations under the Loan Documents, and the early termination
or expiration of any applicable waiting period imposed by law or
regulation with respect to the Parisian Acquisition without notice of
intent to challenge or a request for additional information; and
(ii) the Borrower and its Subsidiaries shall not be in default
with respect to any existing financial obligations;
(e) In the good faith judgment of the Agent and the Lenders:
(i) there shall not have occurred a material adverse change
since February 3, 1996 in the business, assets, operations, condition
(financial or otherwise) or prospects of the Borrower and its
Subsidiaries, or Parisian and its Subsidiaries, or in the facts and
information regarding such entities as represented to date;
(ii) there shall not have occurred any disruption or adverse
change in the financial or capital markets generally which the Agent
or NCMI, in their sole reasonable discretion, deems material in
connection with the syndication of the Revolving Credit Facility;
(iii) Agent shall have received and reviewed, with results
satisfactory to the Agent and its counsel, all information regarding
litigation, tax, accounting, labor, insurance, pension liabilities
(actual or contingent), real estate leases, material contracts, debt
agreements, property ownership, and contingent liabilities of the
Borrower and its Subsidiaries, including without limitation Parisian
and its Subsidiaries; and
(iv) all due diligence with respect to the Borrower and its
subsidiaries, the Parisian Acquisition, and Parisian shall have been
completed in scope and detail satisfactory to NationsBank and NCMI in
their sole discretion.
5.02 Conditions of Loans. The obligations of the Lenders to make any
Loans, and NationsBank to make Swing Line Loans and to issue Letters of
Credit hereunder, on or subsequent to the Closing Date are (except as
set forth in Section 2.02(d) with respect to Revolving Credit Loans made
to repay Swing Line Loans) subject to the satisfaction of the following
conditions:
(a) the Agent shall have received a notice of such borrowing or
request if required by Article II hereof;
(b) the representations and warranties of the Borrower and each
Guarantor set forth in Article VI hereof and in each of the other Loan
Documents shall be true and correct in all material respects on and as
of the date of such Advance or issuance of such Letters of Credit, as
the case may be, with the same effect as though such representations and
warranties had been made on and as of such date, except to the extent
that such representations and warranties expressly relate to an earlier
date, except that the representations and warranties set forth in
Section 6.01(d) and (e) shall be deemed to include and take into account
any merger or consolidation permitted under Section 8.10 hereof, and
except that the financial statements referred to in Section 6.01(f)(i)
shall be deemed to be those financial statements most recently delivered
to the Agent and the Lenders pursuant to Section 7.01 hereof;
(c) in the case of the issuance of a Letter of Credit, Borrower shall
have executed and delivered to NationsBank an Application and Agreement
for Letter of Credit in form and content acceptable to NationsBank
together with such other instruments and documents as it shall request;
(d) at the time of each such Advance, Swing Line Loan or issuance of
each Letter of Credit, as the case may be, no Default or Event of
Default shall have occurred and be continuing;
(e) immediately after giving effect to a Swing Line Loan, the
aggregate Swing Line Outstandings shall not exceed $20,000,000;
(f) immediately after issuing any Letter of Credit, the aggregate
Outstanding Letters of Credit shall not exceed the Total Letter of
Credit Commitment; and
(g) immediately after giving effect to any Loan or Letter of Credit
(i) the sum of the Revolving Credit Outstandings, Swing Line
Outstandings and Outstanding Letters of Credit shall not exceed the
lesser of the Total Revolving Credit Commitment or the Borrowing Base,
as most recently determined by the Borrower and presented to the Agent
in either a compliance certificate required pursuant to Section 7.01(a)
or (b) hereof or in the Borrowing Base Certificate delivered to the
Agent pursuant to Section 7.01(d) hereof, and (ii) each Lender's
Applicable Commitment Percentage of Revolving Credit Loans and
Participations shall not exceed its Revolving Credit Commitment.
ARTICLE V
Representations and Warranties
6.01 Representations and Warranties. The Borrower represents and
warrants with respect to itself and to its Subsidiaries (which
representations and warranties shall survive the delivery of the
documents mentioned herein and the making of Loans and issuance of
Letters of Credit), that:
(a) Organization and Authority.
(i) the Borrower and each Subsidiary is a legal entity duly
organized and validly existing under the laws of the jurisdiction of
its incorporation or creation;
(ii) the Borrower and each Subsidiary (x) has the requisite power
and authority to own its properties and assets and to carry on its
business as now being conducted and as contemplated in the Loan
Documents, and (y) is qualified to do business in every jurisdiction
in which failure so to qualify could reasonably be expected to have
a Material Adverse Effect;
(iii) the Borrower has the power and authority to execute,
deliver and perform this Agreement and the Notes, and to borrow
hereunder, and to execute, deliver and perform each of the other Loan
Documents to which it is a party;
(iv) each Guarantor has the power and authority to execute,
deliver and perform the Guaranty and the other Loan Documents to which
it is a party; and
(v) each of the Loan Documents to which Borrower or any
Guarantor is a party has been duly executed and delivered and is the
legal, valid and binding obligation or agreement, as the case may be,
of such Borrower or Guarantor, enforceable against such Borrower or
Guarantor in accordance with its terms, subject to the effect of any
applicable bankruptcy, moratorium, insolvency, reorganization or other
similar law affecting the enforceability of creditors' rights
generally and to the effect of general principles of equity which may
limit the availability of equitable remedies (whether in a proceeding
at law or in equity);
(b) Loan Documents. The execution, delivery and performance by the
Borrower and each Guarantor of each of the Loan Documents to which the
Borrower or a Guarantor is a party:
(i) have been duly authorized by all requisite corporate action
(including any required shareholder approval) of the Borrower or
Guarantor signatory thereto required for the lawful execution,
delivery and performance thereof;
(ii) do not violate any provisions of (1) applicable law, rule
or regulation, (2) any order of any court or other agency of
government binding on the Borrower or any Guarantor, or their
respective properties, or (3) the charter documents, documents of
creation or by-laws of Borrower or any Guarantor;
(iii) will not be in conflict with, result in a breach of or
constitute an event of default, or an event which, with notice or
lapse of time, or both, would constitute an event of default, under
any indenture, agreement or other instrument to which Borrower or any
Guarantor is a party, or by which the properties or assets of Borrower
or any Guarantor are bound; and
(iv) will not result in the creation or imposition of any Lien,
charge or encumbrance of any nature whatsoever upon any of the
properties or assets of Borrower, or any Guarantor except any Liens
in favor of the Agent and the Lenders created by the Loan Documents;
(c) Solvency. Borrower and each Guarantor are Solvent after giving
effect to the transactions contemplated by this Agreement and the other
Loan Documents;
(d) Subsidiaries and Stockholders. Borrower has no Subsidiaries
other than those Persons listed as Subsidiaries in Schedule 6.01(d)
hereto; except as for wholly owned Subsidiaries of the Borrower,
Schedule 6.01(d) to this Agreement states as of the date hereof the
authorized and issued capitalization of each Subsidiary listed thereon,
the number of shares or other equity interests of each class of capital
stock or interest issued and outstanding of each such Subsidiary and the
number and/or percentage of outstanding shares or other equity interest
(including options, warrants and other rights to acquire any interest)
of each such class of capital stock or equity interest owned by Borrower
or by any such Subsidiary; the outstanding shares or other equity
interests of each Subsidiary have been duly authorized and validly
issued and are fully paid and nonassessable; and Borrower and each such
Subsidiary owns beneficially and of record all the shares and other
interests it is listed as owning in Schedule 6.01(d) and all shares and
other interests for each of its wholly owned Subsidiaries, free and
clear of any Lien;
(e) Ownership Interests. Borrower owns no interest in any Person
having an aggregate book value of $10,000 or more other than the Persons
listed in Schedule 6.01(d) hereto;
(f) Financial Condition.
(i) The Borrower has heretofore furnished to each Lender audited
consolidated balance sheets of the Borrower and its Subsidiaries as
at February 3, 1996 and the notes thereto and the related consolidated
statements of operations, cash flows, and changes in stockholders'
equity for the Fiscal Year then ended as examined and certified by
Coopers & Lybrand. Except as set forth therein, such financial
statements (including the notes thereto) present fairly the financial
condition of the Borrower and its Subsidiaries as of the end of such
Fiscal Year and results of their operations and the changes in their
stockholders' equity for the Fiscal Year then ended, all in conformity
with Generally Accepted Accounting Principles applied on a Consistent
Basis;
(ii) The Borrower has heretofore furnished to each Lender audited
consolidated balance sheets of Parisian and its subsidiaries as at
February 3, 1996 and the notes thereto and the related consolidated
statements of operations, cash flows, and changes in stockholders'
equity for the fiscal year then ended as examined and certified by
Coopers & Lybrand. Except as set forth therein, such financial
statements (including the notes thereto) present fairly the financial
condition of Parisian and its subsidiaries as of the end of such
fiscal year and results of their operations and the changes in their
stockholders' equity for the fiscal year then ended, all in conformity
with Generally Accepted Accounting Principles applied on a Consistent
Basis;
(iii) the Borrower has heretofore furnished to each Lender
an unaudited, pro forma consolidated balance sheet of the Borrower and
its Subsidiaries as at February 3, 1996 giving effect to the Parisian
Acquisition and a related consolidated pro forma statement of
operations for the twelve (12) month period then ended giving effect
to the Parisian Acquisition for such period, each certified by an
Authorized Representative. Such balance sheet and statement of
operations fairly and accurately reflect the consolidated pro forma
financial condition and results of operations of the Borrower and its
Subsidiaries giving effect to the Parisian Acquisition as at February
3, 1996 and for such twelve (12) month period then ended;
(iv) since February 3, 1996, there has been no material adverse
change in the condition, financial or otherwise, of the Borrower and
its Subsidiaries or in the businesses, properties and operations of
the Borrower and its Subsidiaries, considered as a whole, nor have
such businesses or properties, taken as a whole, been materially
adversely affected as a result of any fire, explosion, earthquake,
accident, strike, lockout, combination of workers, flood, embargo or
act of God;
(v) except as set forth in the financial statements referred to
in Section 6.01(f)(i) or in Schedule 6.01(f) or Schedule 6.01(j)
attached hereto, or as permitted under Section 8.06 hereof, neither
Borrower nor any Subsidiary has incurred, other than in the ordinary
course of business, any material indebtedness, obligations,
commitments or other liability contingent or otherwise which remain
outstanding or unsatisfied;
(g) Title to Properties. The Borrower and its Subsidiaries have
title to all their respective owned real and personal properties,
subject to no transfer restrictions or Liens of any kind, except for
(x) the transfer restrictions and Liens described in Schedule 6.01(g)
attached hereto, and (y) Liens permitted under Section 8.07 hereof;
(h) Taxes. Except as set forth in Schedule 6.01(h) attached hereto,
the Borrower and its Subsidiaries have filed or caused to be filed all
federal, state, local and foreign tax returns which are required to be
filed by them and except for taxes and assessments being contested in
good faith by appropriate proceedings diligently conducted and against
which reserves satisfactory to the Borrower's independent certified
public accountants have been established, have paid or caused to be paid
all taxes as shown on said returns or on any assessment received by
them, to the extent that such taxes have become due;
(i) Other Agreements. Neither the Borrower nor any Subsidiary is
(i) a party to any judgment, order, decree or any agreement or
instrument or subject to restrictions which could reasonably be
expected to have a Material Adverse Effect; or
(ii) in default in the performance, observance or fulfillment of
any of the obligations, covenants or conditions contained in any
agreement or instrument to which the Borrower or any Subsidiary is a
party, which default has, or if not remedied within any applicable
grace period could reasonably be expected to have a Material Adverse
Effect;
(j) Litigation. Except as set forth in Schedule 6.01(j) attached
hereto, there is no action, suit or proceeding at law or in equity or by
or before any governmental instrumentality or agency or arbitral body
pending, or, to the knowledge of the Borrower, threatened by or against
the Borrower or any Subsidiary or affecting the Borrower or any
Subsidiary or any properties or rights of the Borrower or any
Subsidiary, which could reasonably be expected to have a Material
Adverse Effect;
(k) Margin Stock. Neither the Borrower nor any Subsidiary owns any
"margin stock" as such term is defined in Regulation U, as amended (12
C.F.R. Part 221), of the Board. The proceeds of the borrowings made
pursuant to Article II hereof will be used by the Borrower and its
Subsidiaries only for the purposes set forth in Section 2.14 hereof.
None of such proceeds will be used, directly or indirectly, for the
purpose of purchasing or carrying any margin stock or for the purpose of
reducing or retiring any Indebtedness which was originally incurred to
purchase or carry margin stock or for any other purpose which might
constitute any of the Loans under this Agreement a "purpose credit"
within the meaning of said Regulation U or Regulation X (12 C.F.R. Part
224) of the Board. Neither the Borrower nor any agent acting in its
behalf has taken or will take any action which might cause this
Agreement or any of the documents or instruments delivered pursuant
hereto to violate any regulation of the Board or to violate the
Securities Exchange Act of 1934, as amended, or the Securities Act of
1933, as amended, or any state securities laws, in each case as in
effect on the date hereof;
(l) Investment Company. Neither the Borrower nor any Subsidiary 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 (15 U.S.C.
Section 80a-1, et seq.). The application of the proceeds of the Loans and
repayment thereof by the Borrower and the performance by the Borrower of
the transactions contemplated by this Agreement will not violate any
provision of said Act, or any rule, regulation or order issued by the
Securities and Exchange Commission thereunder, in each case as in effect
on the date hereof;
(m) Patents, Etc. Except as set forth in Schedule 6.01(m) attached
hereto, the Borrower and its Subsidiaries own or have the right to use,
under valid license agreements or otherwise, all material patents,
licenses, franchises, trademarks, trademark rights, trade names, trade
name rights, trade secrets and copyrights necessary to the conduct of
their businesses as now conducted, without known conflict with any
patent, license, franchise, trademark, trade secrets and confidential
commercial or proprietary information, trade name, copyright, rights to
trade secrets or other proprietary rights of any other Person;
(n) No Untrue Statement. Neither this Agreement nor any other Loan
Document or certificate or document executed and delivered by or on
behalf of the Borrower or any Guarantor in accordance with or pursuant
to any Loan Document contains any misrepresentation or untrue statement
of material fact or omits to state a material fact necessary, in light
of the circumstance under which it was made, in order to make any such
representation or statement contained therein not misleading in any
material respect;
(o) No Consents, Etc. Except as set forth in Schedule 6.01(o)
attached hereto, neither the respective businesses or properties of the
Borrower or any Subsidiary, nor any relationship between the Borrower or
any Subsidiary and any other Person, nor any circumstance in connection
with the execution, delivery and performance of the Loan Documents and
the transactions contemplated hereby is such as to require a consent,
approval or authorization of, or filing, registration or qualification
with, any Governmental Authority or other authority or any other Person
on the part of the Borrower or any Subsidiary as a condition to the
execution, delivery and performance of, or consummation of the
transactions contemplated by, this Agreement or the other Loan Documents
or if so, such consent, approval, authorization, filing, registration or
qualification has been obtained or effected, as the case may be;
(p) Benefit Plans.
(i) None of the employee benefit plans maintained at any time
by the Borrower or any Subsidiary or the trusts created thereunder has
engaged in a prohibited transaction or violated any Foreign Benefit
Law which could subject any such employee benefit plan or trust to a
material tax or penalty on prohibited transactions imposed under
Internal Revenue Code Section 4975 or ERISA or under any Foreign
Benefit Law;
(ii) None of the employee benefit plans maintained at any time
by the Borrower or any Subsidiary which are employee pension benefit
plans and which are subject to Title IV of ERISA or any Foreign
Benefit Law or the trusts created thereunder has been terminated so
as to result in a material liability of the Borrower under ERISA or
under any Foreign Benefit Law nor has any such employee benefit plan
of the Borrower or any Subsidiary incurred any material liability to
the Pension Benefit Guaranty Corporation established pursuant to ERISA
or any other Person exercising similar duties and functions under any
Foreign Benefit Law, other than for required insurance premiums which
have been paid or are not yet due and payable; neither the Borrower
nor any Subsidiary has withdrawn from or caused a partial withdrawal
to occur with respect to any Multi-employer Plan resulting in any
assessed and unpaid withdrawal liability; the Borrower and the
Subsidiaries have made or provided for all contributions to all such
employee pension benefit plans which they maintain and which are
required as of the end of the most recent fiscal year under each such
plan; neither the Borrower nor any Subsidiary has incurred any
accumulated funding deficiency with respect to any such plan, whether
or not waived; nor has there been any reportable event, or other event
or condition, which presents a material risk of termination of any
such employee benefit plan by such Pension Benefit Guaranty
Corporation or any other Person exercising similar duties and
functions under any Foreign Benefit Law;
(iii) The present value of all vested accrued benefits under
the employee pension benefit plans which are subject to Title IV of
ERISA or any Foreign Benefit Law, maintained by the Borrower or any
Subsidiary, did not, as of the most recent valuation date for each
such plan, exceed the then current value of the assets of such
employee benefit plans allocable to such benefits;
(iv) The consummation of the Loans and the issuance of the
Letters of Credit provided for in Article II and Article III will not
involve any prohibited transaction under ERISA or any Foreign Benefit
Law which is not subject to a statutory or administrative exemption;
(v) To the best of the Borrower's knowledge, each employee
pension benefit plan subject to Title IV of ERISA or any Foreign
Benefit Law, maintained by the Borrower or any Subsidiary, has been
administered in accordance with its terms in all material respects and
is in compliance in all material respects with all applicable require-
ments of ERISA and other applicable laws, regulations and rules and
any applicable Foreign Benefit Law;
(vi) There has been no withdrawal liability incurred and unpaid
with respect to any Multi-employer Plan to which the Borrower or any
Subsidiary is or was a contributor;
(vii) As used in this Agreement, the terms "employee benefit
plan," "employee pension benefit plan," "accumulated funding
deficiency," "reportable event," and "accrued benefits" shall have the
respective meanings assigned to them in ERISA, and the term
"prohibited transaction" shall have the meaning assigned to it in Code
Section 4975 and ERISA;
(viii) Neither the Borrower nor any Subsidiary has any
liability not disclosed on any of the financial statements furnished
to the Lenders pursuant to Section 7.01 hereof, contingent or
otherwise, under any plan or program or the equivalent for unfunded
post-retirement benefits, including pension, medical and death
benefits, which liability could reasonably be expected to have a
Material Adverse Effect;
(q) No Default. As of the date hereof, there does not exist any
Default or Event of Default hereunder;
(r) Hazardous Materials. The Borrower and each Subsidiary is in
compliance with all applicable Environmental Laws in all material
respects and neither the Borrower nor any Subsidiary has been notified
of any action, suit, proceeding or investigation which calls into
question compliance by the Borrower or any Subsidiary with any
Environmental Laws or which seeks to suspend, revoke or terminate any
license, permit or approval necessary for the generation, handling,
storage, treatment or disposal of any Hazardous Material;
(s) RICO. Neither the Borrower nor any Subsidiary is engaged in or
has engaged in any course of conduct that could subject any of their
respective properties to any Lien, seizure or other forfeiture under any
criminal law, racketeer influenced and corrupt organizations law, civil
or criminal, or other similar laws;
(t) Employment Matters. Except as disclosed on Schedule 6.01(j)
hereto, the Borrower and all Subsidiaries are in compliance in all
material respects with all applicable laws, rules and regulations
pertaining to labor or employment matters, including without limitation
those pertaining to wages, hours, occupational safety and taxation the
noncompliance with which could reasonably be expected to have a Material
Adverse Effect and there is neither pending nor, to the knowledge of the
Borrower, threatened any litigation, administrative proceeding or
investigation, in respect of such matters, an adverse ruling or
determination in which could have a Material Adverse Effect;
(u) Compliance with Laws. The Borrower and each Subsidiary is in
compliance with all laws, rules and regulations and all other valid
requirements of any Governmental Authority with respect to the conduct
of its business, the noncompliance with which could reasonably be
expected to have a Material Adverse Effect.
ARTICLE VI
Affirmative Covenants
Until the Obligations have been paid and satisfied in full and this
Agreement has been terminated in accordance with the terms hereof,
unless the Required Lenders shall otherwise consent in writing, the
Borrower will:
7.01 Financial Reports, Etc. (a) as soon as practical and in any
event within 90 days after the end of each Fiscal Year of the Borrower,
deliver or cause to be delivered to the Agent and each Lender (i) the
consolidated balance sheets of the Borrower and its Subsidiaries, in
each case with the notes thereto, the related consolidated statements of
operations, cash flow, and shareholders' equity and the respective notes
thereto for such Fiscal Year, setting forth in the case of the
consolidated statements comparative financial statements for the
preceding Fiscal Year, all prepared in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis and
containing, with respect to the consolidated financial reports, opinions
of Coopers & Lybrand, or other such independent certified public
accountants of recognized national standing selected by the Borrower and
approved by the Agent, which are unqualified and without exception not
acceptable to the Required Lenders; and (ii) a certificate of an
Authorized Representative as to the existence of any Default or Event of
Default, demonstrating compliance with Sections 8.01, 8.02, 8.03, 8.04
and 8.05 of this Agreement, and calculating the Borrowing Base as of the
Determination Date for which such covenant compliance is demonstrated,
which certificate shall be in the form attached hereto as Exhibit J and
incorporated herein by reference;
(b) as soon as practical and in any event within 45 days after the
end of each quarterly period of each Fiscal Year or if an extension has
been granted by the Securities and Exchange Commission for the filing by
the Borrower of its quarterly report on Form 10-Q, then by the earlier
of the date such Form 10-Q is actually filed and the last day of such
extended time period, but in no event later than sixty (60) days after
the end of such quarterly period for which such Form 10-Q is to be filed
(except the last reporting period of the Fiscal Year), deliver to the
Agent and each Lender (i) the consolidated balance sheets of the
Borrower and its Subsidiaries, in each case as of the end of such
reporting period, the related consolidated statements of operations,
cash flow, and shareholders' equity for such reporting period and for
the period from the beginning of the Fiscal Year through the end of such
reporting period, accompanied by a certificate of an Authorized
Representative to the effect that such financial statements present
fairly the financial position of the Borrower and its Subsidiaries as of
the end of such reporting period and the results of their operations and
the changes in their financial position for such reporting period, all
of such interim financial statements being prepared in accordance with
Generally Accepted Accounting Principles applied on a Consistent Basis,
subject to normal year-end audit adjustments, and (ii) a certificate of
an Authorized Representative as to the existence of any Default or Event
of Default and containing computations for such quarter comparable to
that required pursuant to Section 7.01(a)(ii);
(c) together with each delivery of the financial statements required
by Section 7.01(a)(i) hereof, deliver to the Agent and each Lender a
letter from the Borrower's accountants specified in Section 7.01(a)(i)
hereof stating that in performing the audit necessary to render an
opinion on the financial statements delivered under Section 7.01(a)(i),
they obtained no knowledge of any Default or Event of Default by the
Borrower in the fulfillment of the terms and provisions of this
Agreement insofar as they relate to financial matters (which at the date
of such statement remains uncured); and if the accountants have obtained
knowledge of such Default or Event of Default, a statement specifying
the nature and period of existence thereof;
(d) as soon as practical and in any event within fifteen (15) days
following the last day of each month of the Borrower's Fiscal Year, a
certificate as to the Borrowing Base substantially in the form attached
hereto as Exhibit K and incorporated herein by reference (a "Borrowing
Base Certificate") certified by an Authorized Representative to be true,
accurate and complete with respect to the information set forth therein
showing the calculation of the Borrowing Base as at the last day of the
preceding month of the Borrower's Fiscal Year;
(e) promptly upon their becoming available to the Borrower, the
Borrower shall deliver to the Agent and each Lender a copy of (i) all
regular or special reports or effective registration statements which
Borrower or any Subsidiary shall file with the Securities and Exchange
Commission (or any successor thereto) or any securities exchange, (ii)
any proxy statement distributed by the Borrower to its shareholders,
bondholders or the financial community in general, and (iii) any
management letter or other report submitted to the Borrower or any of
its Subsidiaries by independent accountants in connection with any
annual, interim or special audit of the Borrower or any of its
Subsidiaries; and
(f) promptly, from time to time, deliver or cause to be delivered to
the Agent and each Lender such other information regarding Borrower's
and each Subsidiary's operations, business affairs and financial
condition as the Agent or such Lender may reasonably request. The Agent
and the Lenders are hereby authorized to deliver a copy of any such
financial information delivered hereunder to the Lenders (or any
affiliate of any Lender) or to the Agent, to any regulatory authority
having jurisdiction over any of the Lenders pursuant to any written
request therefor, or, subject to Section 11.01 hereof, to any other
Person who shall acquire or consider the acquisition of a participation
interest in or assignment of any Loan or Letter of Credit permitted by
this Agreement.
7.02 Maintain Properties. Maintain all properties necessary to its
operations in good working order and condition (ordinary wear and tear
excepted) and make all needed repairs, replacements and renewals as are
necessary to conduct its business in accordance with customary business
practices.
7.03 Existence, Qualification, Etc. Do or cause to be done all
things necessary to preserve and keep in full force and effect its
existence and all material rights and franchises, trade names,
trademarks and permits, except to the extent conveyed in connection with
a transaction permitted under Section 8.08 hereof, and maintain its
license or qualification to do business as a foreign corporation and
good standing in each jurisdiction in which its ownership or lease of
property or the nature of its business makes such license or
qualification necessary.
7.04 Regulations and Taxes. Comply with all statutes and
governmental regulations and pay all taxes, assessments, governmental
charges, claims for labor, supplies, rent and any other obligation
which, if unpaid, might become a Lien against any of its properties
except any of the foregoing being contested in good faith by appropriate
proceedings diligently conducted and against which adequate reserves
have been established.
7.05 Insurance. (i) Keep all of its insurable properties adequately
insured at all times with responsible insurance carriers against loss or
damage by fire and other hazards as are customarily insured against by
similar businesses owning such properties similarly situated, (ii)
maintain general public liability insurance at all times with
responsible insurance carriers against liability on account of damage to
persons and property having such limits, deductibles, exclusions and
co-insurance and other provisions providing no less coverage than that
specified in Schedule 7.05 attached hereto, such insurance policies to
be in form satisfactory to the Agent, and (iii) maintain insurance under
all applicable workers' compensation laws (or in the alternative,
maintain required reserves if self-insured for workers' compensation
purposes). Each of the policies of insurance described in this Section
7.05 shall provide that the insurer shall give the Agent not less than
thirty (30) days' prior written notice before any such policy shall be
terminated, lapse, canceled or materially amended.
7.06 True Books. Keep true books of record and account in which
full, true and correct entries will be made of all of its dealings and
transactions in accordance with customary business practices, and set up
on its books such reserves as may be required by Generally Accepted
Accounting Principles with respect to doubtful accounts and all taxes,
assessments, charges, levies and claims and with respect to its business
in general, and include such reserves in interim as well as year-end
financial statements.
7.07 Pay Indebtedness to Lenders and Perform Other Covenants. (a)
Make full and timely payment of (i) the principal of and (ii) interest
on the Notes and all other Obligations, whether now existing or
hereafter arising; and (b) duly comply with all the terms and covenants
contained in all Loan Documents and other instruments and documents
given to the Agent or the Lenders pursuant hereto or thereto.
7.08 Right of Inspection. Permit any Person designated by any Lender
or the Agent at the Borrower's expense, to visit and inspect any of the
properties, corporate books and financial reports of the Borrower and
its Subsidiaries, and to discuss their respective affairs, finances and
accounts with their principal officers and independent certified public
accountants, all at reasonable times, at reasonable intervals and with
reasonable prior notice.
7.09 Observe All Laws. Conform to and duly observe in all material
respects all laws, rules and regulations and all other valid
requirements of any Governmental Authority with respect to the conduct
of its business, including without limitation Environmental Laws, the
noncompliance with which could reasonably be expected to have a Material
Adverse Effect.
7.10 Covenants Extending to Subsidiaries. Cause each of its
Subsidiaries to do with respect to itself, its business and its assets,
each of the things required of the Borrower in Sections 7.02 through
7.09, inclusive.
7.11 Officer's Knowledge of Default. Upon any Authorized
Representative of the Borrower obtaining knowledge of any Default or
Event of Default hereunder or under any other obligation of the Borrower
or any Subsidiary, cause such officer or an Authorized Representative
promptly to notify the Agent of the nature thereof, the period of
existence thereof, and what action the Borrower proposes to take with
respect thereto and stating that such notice is a "notice of default."
7.12 Suits or Other Proceedings. Upon any Authorized Representative
of the Borrower obtaining knowledge of any litigation or other
proceedings being instituted against the Borrower or any Subsidiary, or
any attachment, levy, execution or other process being instituted
against any assets of the Borrower or any Subsidiary, in an aggregate
amount greater than $500,000 not otherwise covered by insurance,
promptly deliver to the Agent written notice thereof stating the nature
and status of such litigation, dispute, proceeding, levy, execution or
other process.
7.13 Notice of Discharge of Hazardous Material or Environmental
Complaint. Promptly provide to the Agent true, accurate and complete
copies of any and all notices, complaints, orders, directives, claims,
or citations received by the Borrower or any Subsidiary relating to any
material (a) violation or alleged violation by the Borrower or any
Subsidiary of any applicable Environmental Laws; (b) release or
threatened release by the Borrower or any Subsidiary of any Hazardous
Material, except where occurring legally; or (c) liability or alleged
liability of the Borrower or any Subsidiary for the costs of cleaning
up, removing, remediating or responding to a release of Hazardous
Materials.
7.14 Environmental Compliance. If the Borrower or any Subsidiary
shall receive notice from any Governmental Authority that the Borrower
or any Subsidiary has violated any applicable Environmental Laws, the
Borrower shall promptly (and in any event within the time period
permitted by the applicable Governmental Authority) remove or remedy, or
cause the applicable Subsidiary to remove or remedy, such violation.
7.15 Indemnification. The Borrower hereby agrees to defend,
indemnify and hold the Agent and the Lenders, and their respective
officers, directors, employees and agents, harmless from and against any
and all claims, losses, liabilities, damages and expenses (including,
without limitation, cleanup costs and reasonable attorneys' fees)
arising directly or indirectly from, out of or by reason of the
handling, storage, treatment, emission or disposal of any Hazardous
Material by or in respect of the Borrower or any Subsidiary or property
owned or leased or operated by the Borrower or any Subsidiary. The
provisions of this Section 7.15 shall survive repayment of the
Obligations, occurrence of the Revolving Credit Termination Date and
expiration or termination of this Agreement.
7.16 Further Assurances. At its cost and expense, upon request of
the Agent, duly execute and deliver or cause to be duly executed and
delivered, to the Agent such further instruments, documents,
certificates, agreements, financing and continuation statements, and do
and cause to be done such further acts that may be reasonably necessary
or advisable in the reasonable opinion of the Agent to carry out more
effectively the provisions and purposes of this Agreement and the other
Loan Documents.
7.17 Benefit Plans. Comply in all material respects with all
requirements of ERISA and any Foreign Benefit Law applicable to it and
furnish to the Agent as soon as possible and in any event (i) within
thirty (30) days after the Borrower knows or has reason to know that any
reportable event or other event under any Foreign Benefit Law with
respect to any employee benefit plan maintained by the Borrower or any
Subsidiary which could give rise to termination or the imposition of any
material tax or penalty has occurred, written statement of an Authorized
Representative describing in reasonable detail such reportable event or
such other event and any action which the Borrower or applicable
Subsidiary proposes to take with respect thereto, together with a copy
of the notice of such reportable event given to the Pension Benefit
Guaranty Corporation or to any other applicable Person exercising
similar duties and functions under any Foreign Benefit Law or a
statement that said notice will be filed with the annual report of the
United States Department of Labor with respect to such plan if such
filing has been authorized, (ii) promptly after receipt thereof, a copy
of any notice that the Borrower or any Subsidiary may receive from the
Pension Benefit Guaranty Corporation or from any other Person exercising
similar duties and functions under any Foreign Benefit Law relating to
the intention of the Pension Benefit Guaranty Corporation or any such
Person to terminate any employee benefit plan or plans of the Borrower
or any Subsidiary or to appoint a trustee to administer any such plan,
(iii) within 10 days after a filing with the Pension Benefit Guaranty
Corporation pursuant to Section 412(n) of the Code or with any Person
pursuant to any Foreign Benefit Law of a notice of failure to make a
required installment or other payment with respect to a plan, a
certificate of an Authorized Representative setting forth details as to
such failure and the action that the Borrower or its affected
Subsidiary, as applicable, proposes to take with respect thereto,
together with a copy of such notice given to the Pension Benefit
Guaranty Corporation or to such Person, and (iv) promptly after the
incurrence thereof and in any event within 10 days, notice of withdrawal
by the Borrower or any Subsidiary from any Multi-employer Plan.
7.18 Continued Operations. Continue at all times (i) to conduct its
business and engage principally in the same or complementary line or
lines of business substantially as heretofore conducted (subject to the
right to dispose of assets in transactions permitted under Section 8.08
hereof) and (ii) preserve, protect and maintain free from Liens (other
than Liens permitted under Section 8.07 hereof) its material patents,
copyrights, licenses, trademarks, trademark rights, trade names, trade
name rights, trade secrets and know-how necessary or useful in the
conduct of its operations.
7.19 Use of Proceeds. Use the proceeds of the Loans solely for the
purposes specified in Section 2.14 hereof.
7.20 New Subsidiaries. Simultaneously with the acquisition or
creation of any Subsidiary (other than a Securitization Subsidiary), or
upon any previously existing Persons becoming a Subsidiary, cause to be
delivered to the Agent for the benefit of the Lenders each of the
following:
(i) a Guaranty executed by such Subsidiary, with appropriate
insertions of identifying information and such other changes to which
the Agent may consent in its discretion;
(ii) an opinion of counsel to such Subsidiary dated as of the
date of delivery of the Guaranty provided in the foregoing
clause (i) and addressed to the Agent and the Lenders, in form and
substance reasonably acceptable to the Agent and substantially similar
to the opinions of counsel to the Guarantors delivered on the Closing
Date to the Lenders pursuant to Section 5.01 hereof; and
(iii) current copies of the charter or other organizational
documents and bylaws of such Subsidiary, minutes of duly called and
conducted meetings (or duly effected consent actions) of the Board of
Directors, or appropriate committees thereof (and, if required by such
charter or other organizational documents, bylaws or by applicable
laws, of the shareholders) of such Subsidiary authorizing the actions
and the execution and delivery of documents described in clause (i)
of this Section 7.20 and evidence satisfactory to the Agent
(confirmation of the receipt of which will be provided by the Agent
to the Lenders) that such Subsidiary is Solvent as of such date and
after giving effect to the Guaranty and the Security Agreement.
ARTICLE VII
Negative Covenants
Until the Obligations have been paid and satisfied in full and this
Agreement has been terminated in accordance with the terms hereof,
unless the Required Lenders shall otherwise consent in writing, the
Borrower will not, nor will it permit any Subsidiary to:
8.01 Consolidated Net Worth. Permit Consolidated Net Worth at any
time to be less than (i) $430,000,000 at the Closing Date and until (but
excluding) the last day of the fiscal quarter immediately following the
fiscal quarter in which the Closing Date occurs, and (ii) as at the last
day of the fiscal quarter immediately following the fiscal quarter in
which the Closing Date occurs and of each succeeding fiscal quarter of
the Borrower (each such fiscal quarter in which such last day occurs
being a "Prior Period") and until (but excluding) the last day of the
fiscal quarter of the Borrower immediately following the Prior Period,
the sum of (A) the amount of Consolidated Net Worth required to be
maintained pursuant to this Section 8.01 during the Prior Period plus
(B) an amount equal to one hundred percent (100%) of the Net Proceeds of
each sale of capital stock or other equity interest (including those
instruments and securities exchangeable, convertible or exercisable into
capital stock or other equity interests) in the Borrower or any
Subsidiary during the Prior Period, plus (C) an amount equal to fifty
percent (50%) of Consolidated Net Income of the Borrower and its
Subsidiaries (without deduction for any negative Consolidated Net
Income) during the Prior Period.
8.02 Consolidated Senior Indebtedness to Consolidated Capitalization.
Permit at any time during the periods set forth below the ratio of
Consolidated Senior Indebtedness to Consolidated Capitalization to be
greater than the ratios set forth opposite the following respective
periods:
Period Ratio
Closing Date through Fiscal Year End 1996 .50 to 1.00
At all times after Fiscal Year End 1996 .40 to 1.00
8.03 Consolidated Fixed Charge Ratio. Permit, at any time
during any Four-Quarter Period of the Borrower ending during the periods
set forth below, the Consolidated Fixed Charge Ratio for such Four
Quarter Period to be equal to or less than the ratios set forth opposite
the respective periods below:
Period Ratio
Closing Date through Fiscal Year End 1996 1.25 to 1.00
At all times after Fiscal Year End 1996 1.50 to 1.00
8.04 Capital Expenditures. Make or become committed to make in the
aggregate during any Fiscal Year Capital Expenditures greater than
$100,000,000; provided however, such determination shall be made on a
noncumulative basis, with the effect that amounts not expended in any
Fiscal Year may not be carried forward and expended in a subsequent
Fiscal Year.
8.05 Consolidated Funded Indebtedness to EBITDA. Permit at any time
the ratio of Consolidated Funded Indebtedness to Consolidated EBITDA for
the Four Quarter Period most recently ended to be equal to or greater
than the following ratios set forth opposite the following periods
below:
Period Ratio
Closing Date through Fiscal Year End 1996 4.00 to 1.00
At all times after Fiscal Year End 1996 3.50 to 1.00
8.06 Indebtedness. Incur, create, assume or permit to exist any
Indebtedness, howsoever evidenced, except
(i) All Indebtedness existing as of the date hereof and as
approved by the Lenders and as set forth in Schedule 8.06 attached
hereto and incorporated herein by reference and any extension, renewal
or refinancing thereof that does not increase the principal amount
thereof from that existing immediately prior to such extension,
renewal or refinancing; provided, none of the instruments and
agreements evidencing or governing such Indebtedness shall be amended,
modified or supplemented after the Closing Date to change the interest
rate payable on such Indebtedness or any terms of repayment,
subordination or restrictions against incurring Liens or Indebtedness
or rights of conversion, put, exchange or other rights with respect
to such Indebtedness from such terms and rights as in effect on the
Closing Date unless such amendments, modifications or supplements
would not reasonably be expected to have an adverse effect on the
Borrower, or its creditworthiness with respect to its Obligations, as
determined by the Agent or, with respect to any amendment,
modification or supplement changing the interest rate payable on such
Indebtedness, such interest rate resulting therefrom is not greater
than the market rate generally available to companies similarly
situated to the Borrower;
(ii) Indebtedness owing to the Agent or any Lenders in connection
with this Agreement, any Note or other Loan Document;
(iii) Indebtedness consisting of Rate Hedging Obligations
permitted under Section 8.15 hereof;
(iv) The endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(v) Notes, certificates of participation or other evidences of
indebtedness issued or incurred in connection with accounts receivable
securitizations transacted in the ordinary course of business and
consistent with past practice of the Borrower or any Subsidiary;
(vi) Indebtedness incurred directly by the Borrower or any
Subsidiary exclusively to finance machinery, equipment and other fixed
assets purchased after the Closing Date and Indebtedness incurred
after the Closing Date and secured by the Borrower's or any
Subsidiaries real property, provided that such Indebtedness (i) is
secured, if at all, solely by a Lien permitted in accordance with
Sections 8.07(iii) or (vii) hereof, (ii) shall not be refinanced for
a principal amount in excess of the principal balance outstanding
thereon at the time of such refinancing and (iii) does not in the
aggregate for the Borrower and all Subsidiaries exceed the principal
amount of $80,000,000 incurred during any consecutive twelve month
period;
(vii) Indebtedness of any Subsidiary owing to the Borrower
or another Subsidiary and Indebtedness of the Borrower owing to any
Subsidiary; and
(viii) Additional Indebtedness, including without limitation
Indebtedness related to commercial and documentary letters of credit,
standby letters of credit, or otherwise, in the aggregate amount
outstanding of the Borrower and all Subsidiaries at any time (as
determined by the face amount of such obligations where applicable)
not to exceed $100,000,000; Notwithstanding the foregoing, neither
the Borrower nor any of its Subsidiaries shall incur any Indebtedness
which qualifies as Significant Senior Indebtedness under the Parisian
Indenture unless each lender or creditor of such Significant Senior
Indebtedness agrees in the instrument creating, evidencing or
governing such Significant Senior Indebtedness not to deliver any
notice under either Section 10.2(b)(ii)(B) or Section 14.2(b)(ii)(B)
of the Parisian Indenture without the prior written consent of the
Agent and acknowledges in such instrument that the Lenders are relying
on, are third-party beneficiaries of, and may directly enforce, such
agreement.
8.07 Liens. Incur, create or permit to exist any pledge, Lien,
charge or other encumbrance of any nature whatsoever with respect to any
property or assets now owned or hereafter acquired by the Borrower or
any of its Subsidiaries, other than
(i) Liens existing as of the date hereof and as set forth in
Schedule 6.01(g) attached hereto;
(ii) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings diligently
conducted and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with
Generally Accepted Accounting Principles;
(iii) Liens in respect of purchase money Indebtedness in
connection with the acquisition of certain tangible property permitted
to be incurred pursuant to Section 8.06(vi) hereof; provided that (a)
the original principal balance of the Indebtedness secured by such
Lien constitutes not less than 75% and not more than 100% of the
purchase price of the property acquired and (b) such Lien extends only
to the property acquired with the proceeds of the indebtedness so
secured;
(iv) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law
or created in the ordinary course of business and in existence less
than 120 days from the date of creation thereof for amounts not yet
due or which are being contested in good faith by appropriate
proceedings diligently conducted and with respect to which adequate
reserves or other appropriate provisions are being maintained in
accordance with Generally Accepted Accounting Principles;
(v) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal
bonds) in connection with workers' compensation, unemployment
insurance and other types of social security benefits or to secure the
performance of tenders, bids, leases, contracts (other than for the
repayment of Indebtedness), statutory obligations and other similar
obligations or arising as a result of progress payments under
government contracts;
(vi) easements (including, without limitation, reciprocal
easement agreements and utility agreements), rights-of-way, covenants,
consents, reservations, encroachments, variations and zoning and other
restrictions, charges or encumbrances (whether or not recorded), which
do not interfere materially with the ordinary conduct of the business
of the Borrower or any Subsidiary and which do not materially detract
from the value of the property to which they attach or materially
impair the use thereof to the Borrower or any Subsidiary;
(vii) Liens on real property securing Indebtedness permitted
under Section 8.06(vi) hereof; provided, however, that the real
property securing such Indebtedness permitted under Section 8.06(vi)
hereof must be appraised in connection with the incurrence of such
Indebtedness and such appraisal value shall not be less than an amount
equal to 133% of the original principal amount of such Indebtedness;
(viii) Liens on accounts receivable granted in connection with
the accounts receivable securitization of the Borrower or any of its
Subsidiaries transacted in the ordinary course of business and
consistent in purpose with past practice; and
(ix) Liens on specific items of inventory of the Borrower or any
Subsidiary granted to secure reimbursement obligations incurred with
respect to documentary letters of credit issued in connection with the
purchase of such inventory; provided such liens at all times remain
unperfected and no such lien attaches to inventory not acquired with
the credit support of such documentary letter of credit.
8.08 Transfer of Assets. Other than as permitted in Section 8.10
hereof, sell, lease, transfer or otherwise dispose of any assets of the
Borrower or any Subsidiary during any Fiscal Year, other than assets
sold in the ordinary course of business and accounts receivable
transferred pursuant to accounts receivable securitizations transacted
in the ordinary course of business and consistent in purpose with past
practice, which have an aggregate book value in excess of five percent
(5%) of the book value of the consolidated total assets of the Borrower
and its Subsidiaries as at the last day of the immediately preceding
Fiscal Year; provided, however, such determination shall be made on a
noncumulative basis, with the effect that the amount of assets not
disposed of in one Fiscal Year may not be carried forward and disposed
of in a subsequent Fiscal Year.
8.09 Investments; Acquisitions. Purchase, own, invest in or
otherwise acquire, directly or indirectly, any stock or other securities
or all or substantially all of the assets, or make or permit to exist
any interest whatsoever in any other Person or permit to exist any loans
or advances to any Person, except that Borrower and its Subsidiaries may
maintain investments or invest in
(i) Eligible Securities;
(ii) investments existing as of the date hereof and as set forth
in Schedule 6.01(d) attached hereto;
(iii) accounts receivable arising and trade credit granted
in the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof in connection with
accounts of financially troubled Persons to the extent reasonably
necessary in order to prevent or limit loss;
(iv) loans and advances to and investments in Subsidiaries who
are Guarantors;
(v) loans and advances to its officers, directors and employees
for any business purpose in an aggregate principal amount at any time
outstanding not to exceed $1,500,000;
(vi) other investments in an aggregate principal amount at any
time outstanding not to exceed $5,000,000;
(vii) key man life insurance with respect to its executive
officers; and
(viii) Permitted Acquisitions.
8.10 Merger or Consolidation. Consolidate with or merge into any
other Person, or permit any other Person to merge into it, or liquidate,
wind-up or dissolve or sell, transfer or lease or otherwise dispose of
all or a substantial part of its assets (other than sales in the
ordinary course of business); provided, however, (i) any Subsidiary of
the Borrower may merge or transfer all or any part of its assets into or
consolidate with the Borrower or any Subsidiary wholly owned by the
Borrower, (ii) the Borrower may transfer certain of its assets to any
wholly owned Subsidiary of the Borrower provided that such Subsidiary
shall agree at the request of the Agent to become the Borrower or a
co-borrower hereunder, as determined by the Agent, and execute such
documents in connection therewith as the Agent may request and (iii) any
Person may merge with the Borrower, any Securitization Subsidiary or any
Subsidiary wholly owned by the Borrower if the Borrower, such
Securitization Subsidiary or such wholly owned Subsidiary of the
Borrower, as applicable, shall be the survivor thereof and such merger
shall not cause, create or result in the occurrence of any Default or
Event of Default hereunder.
8.11 Transactions with Affiliates. Other than transactions permitted
under Section 8.09 hereof, enter into any transaction after the Closing
Date, including, without limitation, the purchase, sale, leasing or
exchange of property, real or personal, or the rendering of any service,
with any Affiliate of the Borrower (other than transactions with any
Subsidiary wholly owned by the Borrower and transactions in the ordinary
course of business and consistent with past practice with any
Securitization Subsidiary), except (a) that such Persons may render
services to the Borrower or its Subsidiaries for compensation at the
same rates generally paid by Persons engaged in the same or similar
businesses for the same or similar services and (b) in the ordinary
course of and pursuant to the reasonable requirements of the Borrower's
(or any Subsidiary's) business consistent with past practice of the
Borrower and its Subsidiaries and upon fair and reasonable terms no less
favorable to the Borrower (or any Subsidiary) than would be obtained in
a comparable arm's-length transaction with a Person not an Affiliate.
8.12 Benefit Plans. With respect to all employee pension benefit
plans maintained by the Borrower or any Subsidiary:
(i) terminate any of such employee pension benefit plans so as
to incur any liability to the Pension Benefit Guaranty Corporation
established pursuant to ERISA or to any other Person exercising
similar duties and functions under any Foreign Benefit Law;
(ii) allow or suffer to exist any prohibited transaction
involving any of such employee pension benefit plans or any trust
created thereunder which would subject the Borrower or a Subsidiary
to a tax or penalty or other liability (a) on prohibited transactions
imposed under Internal Revenue Code Section 4975 or ERISA or (b) under
any Foreign Benefit Law;
(iii) fail to pay to any such employee pension benefit plan
any contribution which it is obligated to pay under the terms of such
plan;
(iv) allow or suffer to exist any accumulated funding deficiency,
whether or not waived, with respect to any such employee pension
benefit plan;
(v) allow or suffer to exist any occurrence of a reportable
event or any other event or condition, which presents a material risk
of termination by the Pension Benefit Guaranty Corporation, or to any
other Person exercising similar duties and functions under any Foreign
Benefit Law, of any such employee pension benefit plan that is a
Single Employer Plan, which termination could result in any liability
(a) to the Pension Benefit Guaranty Corporation or (b) under any
Foreign Benefit Law; or
(vi) incur any withdrawal liability with respect to any
Multi-employer
Plan.
8.13 Fiscal Year. Change its Fiscal Year.
8.14 Dissolution, etc. Wind up, liquidate or dissolve (voluntarily
or involuntarily) or commence or suffer any proceedings seeking any such
winding up, liquidation or dissolution, except in connection with the
merger or consolidation of Subsidiaries into each other or into the
Borrower pursuant to Section 8.10.
8.15 Rate Hedging Obligations. Incur any Rate Hedging Obligations
or enter into any agreements, arrangements, devices or instruments
relating to Rate Hedging Obligations, except in an aggregate notional
amount not to exceed the Total Revolving Credit Commitment at any time
and in no event shall any Rate Hedging Obligation be incurred for
speculative purposes.
8.16 Negative Pledge Clauses. Enter into any agreement with any
Person, other than the Agent and the Lenders pursuant to this Agreement,
which prohibits or limits the ability of the Borrower or any Subsidiary
to create, incur, assume or suffer to exist any Lien, upon any of its
property, assets or revenues, whether now owned or hereafter acquired,
except for (i) agreements creating Liens permitted by Section 8.07
hereof which prohibit Liens upon, but only upon, the property subject to
such Lien and (ii) accounts receivable and assets directly related
thereto of the Borrower and any Subsidiary which are subject to accounts
receivable securitizations transacted in the ordinary course of business
and consistent with past practice of the Borrower or any Subsidiary;
provided, however, in no event shall the Borrower or any Subsidiary be
prohibited or limited from incurring any Lien on inventory.
ARTICLE VIII
Events of Default and Acceleration
9.01 Events of Default. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason
whatsoever (and whether such occurrence shall be voluntary or
involuntary or come about or be effected by operation of law or pursuant
to or in compliance with any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental
body), that is to say:
(a) if default shall be made in the due and punctual payment of the
principal of any Loan or Reimbursement Obligation, when and as the same
shall be due and payable whether pursuant to any provision of Article II
or Article III hereof, at maturity, by acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment of any
amount of interest on any Loan or of any fees for other amounts payable
to the Lenders, the Agent or NationsBank under the Loan Documents on the
date on which the same shall be due and payable; or
(c) if default shall be made in the performance or observance of any
covenant set forth in Sections 7.06, 7.07(a) (to the extent not covered
in (a) or (b) above), 7.08, 7.11, 7.18, 7.19 or Article VIII hereof; or
(d) if a default shall be made in the performance or observance of,
or shall occur under, any covenant, agreement or provision contained in
this Agreement or the Notes (other than as described in clauses (a), (b)
or (c) above) and such default shall continue for thirty (30) or more
days after the earlier of receipt of notice of such default by the
Authorized Representative from the Agent or the Borrower becomes aware
of such default, or if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in any of the other Loan Documents (beyond any
applicable grace period, if any, contained therein) or in any instrument
or document evidencing or creating any obligation, guaranty, or Lien in
favor of the Agent or the Lenders or delivered to the Agent or the
Lenders in connection with or pursuant to this Agreement or any of the
Obligations, or if any Loan Document ceases to be in full force and
effect (other than by reason of any action by the Agent), or if without
the written consent of the Agent and the Lenders, this Agreement or any
other Loan Document shall be disaffirmed or shall terminate, be
terminable or be terminated or become void or unenforceable for any
reason whatsoever (other than in accordance with its terms in the
absence of default or by reason of any action by the Agent or any
Lender); or
(e) (i) if a default shall occur, which is not waived, (A) in the
payment of any principal, interest, premium or other amounts with
respect to any Indebtedness (other than the Loans) of the Borrower or of
any Subsidiary which Indebtedness is in an amount not less than $250,000
in the aggregate outstanding and includes without limitation any of the
Consolidated Subordinated Debt, or (B) in the performance, observance or
fulfillment of any term or covenant contained in any agreement or
instrument under or pursuant to which any such Indebtedness, including
without limitation any of the Consolidated Subordinated Debt, may have
been issued, created, assumed, guaranteed or secured by the Borrower or
any Subsidiary, and such default shall continue for more than the period
of grace, if any, therein specified, or if such default shall permit the
holder of any such Indebtedness, including without limitation any of the
Consolidated Subordinated Debt, to accelerate the maturity thereof or,
without limitation of the foregoing, any such default under clause (i)
shall result in acceleration of the Parisian Senior Subordinated Notes;
or (ii) if any of the Parisian Notes are repurchased pursuant to Section
3.14 of the Parisian Indenture or if any of the Convertible Subordinated
Debentures are repurchased pursuant to Article Fourteen of the
Convertible Subordinated Debentures Indenture; or
(f) if any representation, warranty or other statement of fact
contained herein or any other Loan Document or in any writing,
certificate, report or statement at any time furnished to the Agent or
any Lender by or on behalf of the Borrower or any Guarantor pursuant to
or in connection with this Agreement or the other Loan Documents, or
otherwise, shall be false or misleading in any material respect when
given or made or deemed given or made; or
(g) if the Borrower or any Subsidiary shall be unable to pay its
debts generally as they become due; file a petition to take advantage of
any insolvency, reorganization, bankruptcy, receivership or similar law,
domestic or foreign; make an assignment for the benefit of its
creditors; commence a proceeding for the appointment of a receiver,
trustee, liquidator or conservator of itself or of the whole or any
substantial part of its property; file a petition or answer seeking
reorganization or arrangement or similar relief under the federal
bankruptcy laws or any other applicable law or statute, federal, state
or foreign; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee, liquidator
or conservator of the Borrower or any Subsidiary or of the whole or any
substantial part of its properties and such order, judgment or decree
continues unstayed and in effect for a period of thirty (30) days, or
approve a petition filed against the Borrower or any Subsidiary seeking
reorganization or arrangement or similar relief under the federal bank-
ruptcy laws or any other applicable law or statute of the United States
of America or any state or foreign country, province or other political
subdivision, which petition is not dismissed within thirty (30) days; or
if, under the provisions of any other law for the relief or aid of
debtors, a court of competent jurisdiction shall assume custody or
control of the Borrower or any Subsidiary or of the whole or any
substantial part of its properties, which control is not relinquished
within thirty (30) days; or if there is commenced against the Borrower
or any Subsidiary any proceeding or petition seeking reorganization,
arrangement or similar relief under the federal bankruptcy laws or any
other applicable law or statute of the United States of America or any
state or foreign country, province or other political subdivision which
proceeding or petition remains undismissed for a period of thirty (30)
days; or if the Borrower or any Subsidiary takes any action to indicate
its consent to or approval of any such proceeding or petition; or
(i) if (i) any judgment where the amount not covered by insurance (or
the amount as to which the insurer denies liability) is in excess of
$250,000 is rendered against the Borrower or any Subsidiary, or
(ii) there is any attachment, injunction or execution against any of the
Borrower's or any Subsidiary's properties for any amount in excess of
$250,000; and such judgment, attachment, injunction or execution remains
unpaid, unstayed, undischarged, unbonded or undismissed for a period of
thirty (30) days; or
(j) if the Borrower or any Subsidiary shall, other than as permitted
under Section 8.08 hereof or in the ordinary course of business (as
determined by past practices), suspend (other than for a period not to
exceed twenty (20) days by reason of force majeure) all or any part of
its operations material to the conduct of the business of the Borrower
or such Subsidiary, taken as a whole; or
(k) if (i) the Borrower or any Subsidiary shall engage in any
prohibited transaction (as described in Section 8.12(ii) hereof), which
is not subject to a statutory or administrative exemption, involving
any employee pension benefit plan of the Borrower or any Subsidiary,
(ii) any accumulated funding deficiency (as referred to in Section
8.12(iv) hereof), whether or not waived, shall exist with respect to any
Single Employer Plan, (iii) a reportable event (as referred to in
Section 8.12(v) hereof) (other than a reportable event for which the
statutory notice requirement to the Pension Benefit Guaranty Corporation
has been waived by regulation) shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed to administer or to terminate, any Single Employer
Plan, which reportable event or institution or proceedings is, in the
reasonable opinion of the Required Lenders, likely to result in the
termination of such Single Employer Plan for purposes of Title IV of
ERISA, and in the case of such a reportable event, the continuance of
such reportable event shall be unremedied for sixty (60) days after
notice of such reportable event pursuant to Section 4043(a), (c) or (d)
of ERISA is given, as the case may be, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, and such termination
results in a material liability of the Borrower or any Subsidiary to
such Single Employer Plan or the Pension Benefit Guaranty Corporation,
(v) the Borrower or any Subsidiary shall withdraw from a Multi-employer
Plan for purposes of Title IV of ERISA, and, as a result of any such
withdrawal, the Borrower or any Subsidiary shall incur withdrawal
liability to such Multi-employer Plan, or (vi) any other event or
condition shall occur or exist; and in each case in clauses (i) through
(vi) of this Section 9.01(k), such event or condition, together with all
other such events or conditions, if any, could subject the Borrower or
any Subsidiary to any tax, penalty or other liabilities; or
(l) if the Borrower or any Subsidiary shall breach any of the terms
or conditions of any Swap Agreement and such breach shall continue
beyond any grace period, if any, relating thereto pursuant to its terms,
or the Borrower or any Subsidiary shall disaffirm or seek to disaffirm
any Swap Agreement or any of its Rate Hedging Obligations thereunder; or
(m) if there shall occur any "Event of Default" as defined in any of
the Loan Documents; or
(n) if the Borrower shall become a party to or the subject of any
agreement, transaction or related series of transactions pursuant to or
as a result of which any Person or group of Persons acting in concert
acquires voting control, directly or indirectly, whether by tender offer
or in one or more negotiated block or market transactions, of more than
twenty percent (20%) of the shares of the issued and outstanding capital
stock of any class of the Borrower;then, and in any such event and at
any time thereafter, if such Event of Default or any other Event of
Default shall have not been waived,
(A) either or both of the following actions may be taken:
(i) the Agent may, and at the direction of the Required Lenders
shall, declare any obligation of the Lenders to make further
Loans or issue Letters of Credit terminated, whereupon the
obligation of each Lender to make further Loans or issue Letters
of Credit, hereunder shall terminate immediately, and (ii) the
Agent shall at the direction of the Required Lenders, at their
option, declare by notice to the Borrower any or all of the
Obligations to be immediately due and payable, and the same,
including all interest accrued thereon and all other obligations
of the Borrower to the Agent and the Lenders, shall forthwith
become immediately due and payable without presentment, demand,
protest, notice or other formality of any kind, all of which are
hereby expressly waived, anything contained herein or in any
instrument evidencing the Obligations to the contrary notwith-
standing; provided, however, that notwithstanding the above, if
there shall occur an Event of Default under clause (g) or (h)
above, then the obligation of the Lenders to lend and issue
Letters of Credit hereunder shall automatically terminate and
automatically any and all of the Obligations shall be
immediately due and payable without the necessity of any action
by the Agent or the Required Lenders or notice to the Agent or
the Lenders;
(B) The Borrower shall, upon demand of the Agent or the
Required Lenders, and automatically upon the occurrence of an
Event of Default under clause (g) or (h) above, deposit cash
with the Agent in an amount equal to the amount of any
outstanding Letters of Credit remaining undrawn or unpaid, as
collateral security pursuant to the LC Account Agreement for the
repayment of any future drawings or payments under such Letters
of Credit; and
(C) the Agent and the Lenders shall have all of the rights
and remedies available under the Loan Documents or under any
applicable law.
9.02 Agent to Act. In case any one or more Events of Default shall
occur and not have been waived, the Agent may, and at the direction of
the Required Lenders shall, proceed to protect and enforce their rights
or remedies either by suit in equity or by action at law, or both,
whether for the specific performance of any covenant, agreement or other
provision contained herein or in any other Loan Document, or to enforce
the payment of the Obligations or any other legal or equitable right or
remedy.
9.03 Cumulative Rights. No right or remedy herein conferred upon the
Lenders or the Agent is intended to be exclusive of any other rights or
remedies contained herein or in any other Loan Document, and every such
right or remedy shall be cumulative and shall be in addition to every
other such right or remedy contained herein and therein or now or
hereafter existing at law or in equity or by statute, or otherwise.
9.04 No Waiver. No course of dealing between the Borrower and any
Lender or the Agent or any failure or delay on the part of any Lender or
the Agent in exercising any rights or remedies under any Loan Document
or otherwise available to it shall operate as a waiver of any rights or
remedies and no single or partial exercise of any rights or remedies
shall operate as a waiver or preclude the exercise of any other rights
or remedies hereunder or of the same right or remedy on a future
occasion.
9.05 Allocation of Proceeds. If an Event of Default has occurred and
not been waived, and the maturity of the Notes has been accelerated
pursuant to Article IX hereof, all payments received by the Agent
hereunder, in respect of any principal of or interest on the Obligations
or any other amounts payable by the Borrower hereunder shall be applied
by the Agent in the following order:
(i) amounts due to NationsBank and the Lenders pursuant to
Sections 2.12, 3.02(f), 3.03, 7.15, 11.05 and 11.10 hereof;
(ii) amounts due to (A) NationsBank pursuant to Section 3.04
hereof, and (B) to NationsBank and/or the Agent pursuant to Section
2.16 hereof;
(iii) payments of interest on Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders;
(iv) payments of principal on Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders;
(v) payment of cash amounts to the Agent in respect of
Outstanding Letters of Credit pursuant to Section 9.01(B) hereof;
(vi) payment of Obligations owed a Lender or Lenders pursuant to
Swap Agreements on a pro rata basis according to amounts owed;
(vii) payments of all other amounts due under this Agreement,
if any, to be applied for the ratable benefit of the Lenders; and
(viii) any surplus remaining after application as provided for
herein, to the Borrowers or otherwise as may be required by applicable
law.
ARTICLE IX
The Agent
10.01 Appointment. Each Lender (including NationsBank in its
capacity as maker of Swing Line Loans and as issuer of the Letters of
Credit) hereby irrevocably designates and appoints NationsBank as the
Agent of the Lenders under this Agreement, and each of the Lenders
hereby irrevocably authorizes NationsBank as the Agent for such Lender,
to take such action on its behalf under the provisions of this Agreement
and the other Loan Documents and to exercise such powers as are
expressly delegated to the Agent by the terms of this Agreement,
together with such other powers as are reasonably incidental thereto.
The Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any of
the Lenders, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or
otherwise exist against the Agent.
10.02 Attorneys-in-fact. The Agent may execute any of its duties
under this Agreement by or through agents or attorneys-in-fact and shall
be entitled to advice of counsel concerning all matters pertaining to
such duties. The Agent shall not be responsible to the Lenders for the
negligence, gross negligence or willful misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
10.03 Limitation on Liability. Neither the Agent nor any of its
officers, directors, employees, agents or attorneys-in-fact shall be
liable to the Lenders for any action lawfully taken or omitted to be
taken by it or them under or in connection with this Agreement except
for its or their own gross negligence or willful misconduct. Neither
the Agent nor any of its affiliates shall be responsible in any manner
to any of the Lenders for any recitals, statements, representations or
warranties made by the Borrower or any of its Subsidiaries, or any
officer or representative thereof contained in this Agreement or in any
of the other Loan Documents, or in any certificate, report, statement or
other document referred to or provided for in or received by the Agent
under or in connection with this Agreement, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any of the other Loan Documents, or for any failure of the
Borrower to perform its obligations thereunder, or for any recitals,
statements, representations or warranties made, or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of
any collateral. The Agent shall not be under any obligation to any of
the Lenders to ascertain or to inquire as to the observance or
performance of any of the terms, covenants or conditions of this
Agreement or any of the other Loan Documents on the part of the Borrower
or to inspect the properties, books or records of the Borrower or its
Subsidiaries.
10.04 Reliance. The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any Note, writing, resolution, notice,
consent certificate, affidavit, letter, cablegram, telegram, telecopy or
telex message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons and upon advice and statements
of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the
Agent. The Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless an Assignment and Acceptance shall have
been filed with and accepted by the Agent. The Agent shall be fully
justified in failing or refusing to take any action under this Agreement
unless it shall first receive advice or concurrence of the Lenders or
the Required Lenders as provided in this Agreement and it shall first be
indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this
Agreement in accordance with a request of the Required Lenders, and such
request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all present and future holders of the
Notes.
10.05 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received notice from a Lender, the
Authorized Representative or the Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice
is a "notice of default". In the event that the Agent receives such a
notice, the Agent shall promptly give notice thereof to the Lenders.
The Agent shall take such action with respect to such Default or Event
of Default as shall be reasonably directed by the Required Lenders;
provided that, unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Event
of Default as it shall deem advisable in the best interests of the
Lenders.
10.06 No Representations. Each Lender expressly acknowledges that
neither the Agent nor any of its affiliates has made any representations
or warranties to it and that no act by the Agent hereafter taken,
including any review of the affairs of the Borrower or any of its
Subsidiaries, shall be deemed to constitute any representation or
warranty by the Agent to any Lender. Each Lender represents to the
Agent that it has, independently and without reliance upon the Agent or
any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
financial condition, creditworthiness, affairs, status and nature of the
Borrower and its Subsidiaries and made its own decision to enter into
this Agreement. Each Lender also represents that it will, independently
and without reliance upon the Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and to make such
investigation as it deems necessary to inform itself as to the status
and affairs, financial or otherwise, of the Borrower and its
Subsidiaries. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Lender
with any credit or other information concerning the affairs, financial
condition or business of the Borrower or any of its Subsidiaries which
may come into the possession of the Agent or any of its affiliates.
10.07 Indemnification. The Lenders agree to indemnify the Agent in
its capacity as such (to the extent not reimbursed by the Borrower and
without limiting any obligations of the Borrower or any Subsidiary so to
do), including its employees, directors, officers and agents, ratably
according to the respective principal amount of the Notes and
Participations held by them (or, if no Notes or Participations are
outstanding, ratably in accordance with their respective Applicable
Commitment Percentages as then in effect) from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may at any time (including, without limitation at any
time following the payment of the Notes) be imposed on, incurred by or
asserted against the Agent, including its employees, directors, officers
and agents, in any way relating to or arising out of this Agreement or
any other document contemplated by or referred to herein or the trans-
actions contemplated hereby or any action taken or omitted by the Agent
under or in connection with any of the foregoing; provided that no
Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Agent's gross negligence or willful misconduct. The agreements in this
subsection shall survive the final payment in full of the Obligations
and the termination of this Agreement.
10.08 Lender. The Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the
Borrower and its Subsidiaries as though it were not the Agent hereunder.
With respect to its Loans made or renewed by it and any Note issued to
it, the Agent shall have the same rights and powers under this Agreement
as any Lender and may exercise the same as though it were not the Agent,
and the terms "Lender" and "Lenders" shall, unless the context otherwise
indicates, include the Agent in its individual capacity.
10.09 Resignation. If the Agent shall resign as Agent under this
Agreement, then the Required Lenders may appoint, with the consent, so
long as there shall not have occurred and be continuing a Default or
Event of Default, of the Borrower, which consent shall not be
unreasonably withheld, a successor Agent for the Lenders, which
successor Agent shall be a commercial bank organized under the laws of
the United States or any state thereof, having a combined surplus and
capital of not less than $250,000,000, whereupon such successor Agent
shall succeed to the rights, powers and duties of the former Agent and
the obligations of the former Agent shall be terminated and canceled,
without any other or further act or deed on the part of such former
Agent or any of the parties to this Agreement; provided, however, that
the former Agent's resignation shall not become effective until such
successor Agent has been appointed and has succeeded of record to all
right, title and interest in any collateral held by the Agent; provided,
further, that if the Required Lenders and, if applicable, the Borrower
cannot agree as to a successor Agent within ninety (90) days after such
resignation, the Agent shall appoint a successor Agent which satisfies
the criteria set forth above in this Section 10.09 for a successor Agent
and the parties hereto agree to execute whatever documents are necessary
to effect such action under this Agreement or any other document
executed pursuant to this Agreement; provided, however that in such
event all provisions of this Agreement and the Loan Documents shall
remain in full force and effect. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Article X shall inure to its
benefit as to any actions taken or omitted to be taken by it while it
was Agent under this Agreement.
10.10 Sharing of Payments, etc. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, set-off, counterclaim
or otherwise, or by reason of the exercise of the subordination terms
under any of the Consolidated Subordinated Debt, obtain payment with
respect to its Obligations (other than pursuant to Article IV) which
results in its receiving more than its pro rata share of the aggregate
payments with respect to all of the Obligations (other than any payment
pursuant to Article IV), then (A) such Lender shall be deemed to have
simultaneously purchased from the other Lenders a share in their
Obligations so that the amount of the Obligations held by each of the
Lenders shall be pro rata and (B) such other adjustments shall be made
from time to time as shall be equitable to insure that the Lenders share
such payments ratably; provided, however, that for purposes of this
Section 10.10 the term "pro rata" shall be determined with respect to
both the Revolving Credit Commitment of each Lender and to the Total
Revolving Credit Commitment after subtraction in each case of amounts,
if any, by which any such Lender has not funded its share of the
outstanding Revolving Credit Loans and Reimbursement Obligations, as the
case may be. If all or any portion of any such excess payment is
thereafter recovered from the Lender which received the same, the
purchase provided in this Section 10.10 shall be rescinded to the extent
of such recovery, without interest. The Borrower expressly consents to
the foregoing arrangements and agrees that each Lender so purchasing a
portion of the other Lenders' Obligations may exercise all rights of
payment (including, without limitation, all rights of set-off, banker's
lien or counterclaim) with respect to such portion as fully as if such
Lender were the direct holder of such portion.
ARTICLE X
Miscellaneous
11.01 Assignments and Participations.
(a) At any time after the Closing Date each Lender may, with the
prior consent of the Agent and the Borrower, which consents shall not be
unreasonably withheld (it being understood that consent may be withheld
by the Borrower if such assignment would subject the Borrower to the
payment of any additional amounts pursuant to the provisions of Section
4.06 hereof), assign to one or more banks or financial institutions all
or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of any Note payable to
its order); provided, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all of the assigning Lender's
rights and obligations (including Revolving Credit Loans and
Participations) under this Agreement, (ii) for each assignment involving
the issuance and transfer of a Note, the assigning Lender shall execute
an Assignment and Acceptance and the Borrower hereby consents to execute
a replacement Note or Notes to give effect to the assignment, (iii) the
minimum Revolving Credit Commitment which shall be assigned is
$10,000,000 or if such Lender's existing Revolving Credit Commitment is
less than $10,000,000, the entire amount of such Lender's Revolving
Credit Commitment (together with which the assigning Lender's applicable
portion of Participations and the Letter of Credit Commitment shall also
be assigned), (iv) such assignee shall have an office located in the
United States, (v) an assignment (other than an assignment of 100% of
its interest) by NationsBank shall not include any portion of the Swing
Line or obligation to issue Letters of Credit, and (vi) no consent of
the Borrower or Agent shall be required in connection with any
assignment by a Lender to an Affiliate thereof or to another Lender.
Upon such execution, delivery, approval and acceptance, from and after
the effective date specified in each Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder or under such Note have been assigned
or negotiated to it pursuant to such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder and a holder of such Notes
and (y) the assignor thereunder shall, to the extent that rights and
obligations hereunder or under such Notes have been assigned or
negotiated by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from that portion of its obligations under
this Agreement applicable to the rights so assigned. No assignee shall
have the right to further assign its rights and obligations pursuant to
this Section 11.01. Any Lender who makes an assignment shall pay to the
Agent a one-time administrative fee of $2,500.00.
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) the
assignment made under such Assignment and Acceptance is made under such
Assignment and Acceptance without recourse; (ii) such assigning Lender
makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or any Subsidiary or
the performance or observance by the Borrower or any Subsidiary of any
of its obligations under any Loan Document or any other instrument or
document furnished pursuant hereto; (iii) such assignee confirms that it
has received a copy of this Agreement, together with copies of the
financial statements most recently delivered pursuant to Section 6.01(f)
or Section 7.01, as the case may be, and such other Loan Documents and
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 the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such
powers under this Agreement, the Notes and the other Loan Documents as
are delegated to the Agent by the terms hereof and thereof, together
with such powers as are reasonably incidental thereto; and (vi) 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 and a holder of such Notes.
(c) The Agent shall maintain at its address referred to herein a copy
of each Assignment and Acceptance delivered to and accepted by it.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender, the Agent shall give prompt notice thereof to
Borrower.
(e) Nothing herein shall prohibit any Lender from pledging or
assigning any Note to any Federal Reserve Bank in accordance with
applicable law.
(f) If, pursuant to this Section 11.01, any interest in this
Agreement or any Note is transferred to any assignee Lender which is
organized under the laws of any jurisdiction other than the United
States or any state thereof, the assigning Lender shall cause such
assignee Lender, concurrently with the effectiveness of such transfer,
(i) to represent to the assigning Lender (for the benefit of the
assigning Lender, the Agent and the Borrower) that under applicable law
and treaties no taxes will be required to be withheld by the Agent, the
Borrower or the assigning Lender with respect to any payments to be made
to such assignee Lender in respect of the Loans and (ii) to furnish to
the assigning Lender, the Agent and the Borrower such certificates,
documents and other evidence as required to comply with the penultimate
paragraph of Section 4.06 hereof, the Agent and the Borrower), and the
assignee Lender shall comply from time to time with all applicable
United States laws and regulations with regard to such withholding tax
exemption.
(g) Each Lender may sell participations at its expense to one or more
banks or other entities as to all or a portion of its rights and
obligations under this Agreement; provided, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall remain the
holder of any Notes issued to it for the purpose of this Agreement, (iv)
such participations shall be in a minimum amount of $1,000,000 and, in
the case of a participation in the Revolving Credit Facility, shall
include an allocable portion of such Lender's Participation, and (v)
Borrower, the Agent and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights
and obligations under this Agreement and with regard to any and all
payments to be made under this Agreement; provided, that the
participation agreement between a Lender and its participants may
provide that such Lender will obtain the approval of such participant
prior to such Lender's agreeing to any amendment or waiver of any
provisions of this Agreement which would (A) extend the maturity of any
Note, (B) reduce the interest rate hereunder, (C) increase the Revolving
Credit Commitment of the Lender granting the participation other than as
permitted by Section 2.10 or (D) release any Guarantor, and (vi) the
sale of any such participations which require Borrower to file a
registration statement with the United States Securities and Exchange
Commission or under the securities regulations or laws of any state
shall not be permitted.
11.02 Notices. All notices shall be in writing, except as to
telephonic notices expressly permitted or required herein, and written
notices shall be delivered by hand delivery, telegram, telex,
telefacsimile, overnight courier or certified or registered mail. Any
notice shall be conclusively deemed to have been received by any party
hereto and be effective on the day on which delivered to such party
(against (except as to telephonic or telefacsimile notice) receipt
therefor or, in the case of telex, verification by return) at the
address set forth below or such other address as such party shall
specify to the other parties in writing, or if sent prepaid by certified
or registered mail return receipt requested on the third Business Day
after the day on which mailed, addressed to such party at said address:
(a) if to the Borrower:
Proffitt's, Inc.
3455 Highway 80 West
Jackson, Mississippi 39209
Attention: Chief Financial Officer
Telephone: (601) 968-4243
Telefacsimile: (601) 968-5320
with copies to:
Butler, Snow, O'Mara, Stevens & Cannada
Deposit Guaranty Plaza, 17th Floor
210 East Capitol
Jackson, Mississippi 39201
Attention: Don B. Cannada, Esq.
Telephone: (601) 948-5711
Telefacsimile: (601) 949-4555
and to:
Sommer & Barnard
4000 Bank One Tower
111 Monument Circle
Indianapolis, Indiana 46204
Attention: Jim Strain, Esq.
Telephone: (317) 630-5910
Telefacsimile: (317) 236-9802
(b) if to the Agent:
NationsBank of Texas, National Association
NationsBank Plaza
901 Main Street
67th Floor
Dallas, Texas 75202
Attention: Ms. Renitta Cummings, Agency Services
Telephone: (214) 508-2133
Telefacsimile: (214) 508-2515
with a copy to:
NationsBank, N.A. (South)
600 Peachtree Street, N.E.
21st Floor
Atlanta, Georgia 30308-2213
Attention: Shawn Welch
Telephone: 404-607-5530
Telefacsimile: 404-607-6467
(c) if to NationsBank in its capacity as issuer of the Letters of
Credit:
NationsBank of Texas, National Association
NationsBank Plaza
901 Main Street
9th Floor
Dallas, Texas 75202
Attention: Sandy Bohanon,
Letter of Credit Department
Telephone: (214) 508-2285
Telefacsimile: (214) 508-2543
(d) if to the Lenders:
At the addresses set forth on the signature pages hereof
and on the signature page of each Assignment and
Acceptance.
11.03 Setoff. The Borrower agrees that the Agent and each Lender
shall have a lien for all the Obligations of the Borrower upon all
deposits or deposit accounts, of any kind, or any interest in any
deposits or deposit accounts thereof, now or hereafter pledged,
mortgaged, transferred or assigned to the Agent or such Lender or
otherwise in the possession or control of the Agent or such Lender
(other than for safekeeping) for any purpose for the account or benefit
of the Borrower and including any balance of any deposit account or of
any credit of the Borrower with the Agent or such Lender, whether now
existing or hereafter established, hereby authorizing the Agent and each
Lender at any time or times with or without prior notice to apply such
balances or any part thereof to such of the Obligations of the Borrower
to the Lenders then past due and in such amounts as they may elect, and
whether or not the collateral or the responsibility of other Persons
primarily, secondarily or otherwise liable may be deemed adequate. For
the purposes of this paragraph, all remittances and property shall be
deemed to be in the possession of the Agent or such Lender as soon as
the same may be put in transit to it by mail or carrier or by other
bailee.
11.04 Survival. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the
Loans and the expiration of the Letters of Credit and the execution and
delivery to the Lenders of this Agreement and the Notes and shall
continue in full force and effect so long as any of the Obligations
remain outstanding or any Lender has any commitment hereunder. Whenever
in this Agreement, any of the parties hereto is referred to, such
reference shall be deemed to include the successors and permitted
assigns of such party and all covenants, provisions and agreements by or
on behalf of the Borrower which are contained in this Agreement, the
Notes and the other Loan Documents shall inure to the benefit of the
successors and permitted assigns of the Lenders or any of them.
11.05 Expenses. The Borrower agrees (a) to pay or reimburse the
Agent for all its reasonable and customary out-of-pocket costs and
expenses incurred in connection with the preparation, negotiation and
execution of, and any amendment, supplement, waiver, or modification to,
this Agreement or any of the other Loan Documents (including travel
expenses relating to closing), and the consummation of the transactions
contemplated hereby and thereby, including, without limitation, the
reasonable and customary fees and disbursements of counsel to the Agent,
(b) to pay or reimburse the Agent and the Lenders for all their
reasonable costs and expenses incurred in connection with the
enforcement, workout or preservation of any rights under this Agreement
and the other Loan Documents, including without limitation, the
reasonable fees and disbursements of their counsel and any payments in
indemnification or otherwise payable by the Lenders to the Agent
pursuant to the Loan Documents and (c) to pay, indemnify and hold the
Agent and the Lenders harmless from any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any
failure to pay or delay in paying, documentary, stamp, excise and other
similar taxes, if any, which may be payable or determined to be payable
in connection with the execution and delivery of this Agreement or any
other Loan Documents, or consummation of any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this
Agreement or any other Loan Documents.
11.06 Amendments. No amendment, modification or waiver of any
provision of this Agreement or any of the Loan Documents and no consent
by the Lenders to any departure therefrom by the Borrower shall be
effective unless such amendment, modification or waiver shall be in
writing and signed by the Borrower and the Agent, but only upon having
received the written consent of the Required Lenders, and the same shall
then be effective only for the period and on the conditions and for the
specific instances and purposes specified in such writing; provided,
however, that, no such amendment, modification or waiver
(i) which changes, extends or waives any provision of Section
10.10 or this Section 11.06, the amount of or the due date of any
scheduled installment of or the rate of interest or determination of
any fee payable on or in connection with any Obligation, changes the
definition of Required Lenders, which permits an assignment by
Borrower of its Obligations hereunder, which reduces the required
consent of Lenders provided hereunder, which increases, decreases or
extends the Revolving Credit Termination Date or the Revolving Credit
Commitment or the Letter of Credit Commitment of any Lender or which
releases any Guarantor or any material amount of collateral in which
a Lien is granted to the Agent for the benefit of the Lenders shall
be effective unless in writing and signed by each of the Lenders;
provided, however, the Required Lenders may in their sole discretion
waive any Default or Event of Default (other than any Event of Default
under Section 9.01(g) or (h)); or
(ii) which affects the rights, privileges, immunities or
indemnities of the Agent shall be effective unless in writing and
signed by the Agent.Notwithstanding any provision of the other Loan
Documents to the contrary, as between the Agent and the Lenders,
execution by the Agent shall not be deemed conclusive evidence that
the Agent has obtained the written consent of the Required Lenders.
No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances, except as otherwise expressly provided herein. No
delay or omission on any Lender's or the Agent's part in exercising
any right, remedy or option shall operate as a waiver of such or any
other right, remedy or option or of any Default or Event of Default.
11.07 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be
deemed an original, and it shall not be necessary in making proof of
this Agreement to produce or account for more than one such
fully-executed
counterpart.
11.08 Termination. The termination of this Agreement shall not
affect any rights of the Borrower, the Lenders or the Agent or any
obligation of the Borrower, the Lenders or the Agent, arising prior to
the effective date of such termination, and the provisions hereof shall
continue to be fully operative until all transactions entered into or
rights created or obligations incurred prior to such termination have
been fully disposed of, concluded or liquidated and the Obligations
arising prior to or after such termination have been irrevocably and
finally paid in full; without limitation of the foregoing, the
provisions of Sections 4.04, 4.06, 7.15, 10.7, 11.05 and 11.10 shall
survive the termination of this Agreement and the Loan Documents. The
rights granted to the Agent for the benefit of the Lenders hereunder and
under the other Loan Documents shall continue in full force and effect,
notwithstanding the termination of this Agreement, until all of the
Obligations have been paid in full after the termination hereof (other
than Obligations in the nature of continuing indemnities or expense
reimbursement obligations not yet due and payable) or the Borrower has
furnished the Lenders and the Agent with an indemnification satisfactory
to the Agent and each Lender with respect thereto. All representations,
warranties, covenants, waivers and agreements contained herein shall
survive termination hereof until payment in full of the Obligations
unless otherwise provided herein. Notwithstanding the foregoing, if
after receipt of any payment pursuant to the Loan Documents of all or
any part of the Obligations, any Lender is for any reason compelled to
surrender such payment to any Person because such payment is determined
to be void or voidable as a preference, impermissible setoff, a
diversion of trust funds or for any other reason, this Agreement shall
continue in full force and the Borrower shall be liable to, and shall
indemnify and hold such Lender harmless for, the amount of such payment
surrendered until such Lender shall have been finally and irrevocably
paid in full. The provisions of the foregoing sentence shall be and
remain effective notwithstanding any contrary action which may have been
taken by the Lenders in reliance upon such payment, and any such
contrary action so taken shall be without prejudice to the Lenders'
rights under this Agreement and shall be deemed to have been conditioned
upon such payment having become final and irrevocable.
11.09 Governing Law. All documents executed pursuant to the
transactions contemplated herein, including, without limitation, this
Agreement and each of the Loan Documents shall be deemed to be contracts
made under, and for all purposes shall be construed in accordance with,
the internal laws and judicial decisions of the State of Tennessee. The
Borrower hereby submits to the jurisdiction and venue of the state and
federal courts of Tennessee for the purposes of resolving disputes
hereunder or for the purposes of collection.
11.10 Indemnification. (a) In consideration of the execution and
delivery of this Agreement by the Agent and each Lender and the
extension of the Letter of Credit Commitments and the Revolving Credit
Commitments, the Borrower hereby indemnifies, exonerates and holds the
Agent and each Lender and each of their respective officers, directors,
employees and agents (collectively, the "Indemnified Parties") free and
harmless from and against any and all actions, causes of action, suits,
losses, costs, liabilities and damages, and expenses incurred in
connection therewith (irrespective of whether any such Indemnified Party
is a party to the action for which indemnification hereunder is sought),
including reasonable attorneys' fees and disbursements (collectively,
the "Indemnified Liabilities"), incurred by the Indemnified Parties or
any of them as a result of, or arising out of, or relating to the
financing contemplated hereby or any transaction financed or to be
financed in whole or in part, directly or indirectly, with the proceeds
of any Loan or supported by any Letter of Credit, except for any such
Indemnified Liabilities arising for the account of a particular
Indemnified Party by reason of the gross negligence or willful
misconduct of such Indemnified Party or an officer, director, employee
or agent of such Indemnified Party, and if and to the extent that the
foregoing undertaking may be unenforceable for any reason, the Borrower
hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible
under applicable law. Neither any Lender nor the Agent shall be liable
to the Borrower, its directors or stockholders with respect to the
financing contemplated hereby except for their gross negligence or
wilful misconduct and then only for actual and not consequential
damages.
(b) If a claim is to be made by a party entitled to indemnification
under this Section 11.10 or Section 7.15 against the Borrower, the
Indemnified Party shall give written notice to the Borrower promptly
after the Indemnified Party receives actual notice of any claim, action,
suit, loss, cost, liability, damage or expense incurred or instituted
for which the indemnification is sought. If requested by Borrower in
writing, and so long as no Default or Event of Default shall have
occurred and be continuing, such Indemnified Party shall contest at the
expense of the Borrower the validity, applicability and/or amount of
such suit, action, or cause of action to the extent such contest may be
conducted in good faith on legally supportable grounds. If any lawsuit
or enforcement action is filed against any Indemnified Party, written
notice thereof shall be given to the Borrower as soon as practicable
(and in any event within 20 days after the service of the citation or
summons). Notwithstanding the foregoing, the failure so to notify the
Borrower as provided in this Section will relieve the Borrower from
liability hereunder only if and to the extent that such failure results
in the forfeiture by the Borrower of any substantive rights or defenses.
The Indemnified Party shall control the defense and investigation of
such lawsuit or action and to employ and engage counsel of its own
choice to handle and defend the same, at the Borrower's cost, risk and
expense; provided, however, that the Borrower may, at its own cost
participate in the investigation, trial and defense of such lawsuit or
action and any appeal arising therefrom. If the Borrower has
acknowledged to the Indemnified Party its obligation to indemnify
hereunder, the Indemnified Party, so long as no Default or Event of
Default shall have occurred and be continuing, shall not settle such
lawsuit or enforcement action without the prior written consent of the
Borrower and, if the Borrower has not so acknowledged its obligation,
the Indemnified Party shall not settle such lawsuit or enforcement
action without giving twenty (20) days' prior written notice of such
settlement and its terms to the Borrower.
11.11 Headings and References. The headings of the Articles and
Sections of this Agreement are inserted for convenience of reference
only and are not intended to be a part of, or to affect the meaning or
interpretation of this Agreement. Words such as "hereof", "hereunder",
"herein" and words of similar import shall refer to this Agreement in
its entirety and not to any particular Section or provisions hereof,
unless so expressly specified. As used herein, the singular shall
include the plural, and the masculine shall include the feminine or a
neutral gender, and vice versa, whenever the context requires.
11.12 Severability. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or
more of the parties hereto, then such provision shall remain in effect
with respect to all parties, if any, as to whom such provision is
neither illegal nor invalid, and in any event all other provisions
hereof shall remain effective and binding on the parties hereto.
11.13 Entire Agreement. This Agreement, together with the other Loan
Documents, constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all previous
proposals, negotiations, representations, commitments and other
communications between or among the parties, both oral and written, with
respect thereto.
11.14 Agreement Controls. In the event that any term of any of the
Loan Documents other than this Agreement conflicts with any term of this
Agreement, the terms and provisions of this Agreement shall control.
11.15 Usury Savings Clause. Notwithstanding any other provision
herein, the aggregate interest rate charged under any of the Notes,
including all charges or fees in connection therewith deemed in the
nature of interest under Tennessee law, shall not exceed the Highest
Lawful Rate (as such term is defined below). If the rate of interest
(determined without regard to the preceding sentence) under this
Agreement at any time exceeds the Highest Lawful Rate (as defined
below), the outstanding amount of the Loans made hereunder shall bear
interest at the Highest Lawful Rate until the total amount of interest
due hereunder equals the amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement
had at all times been in effect. In addition, if and when the Loans
made hereunder are repaid in full the total interest due hereunder
(taking into account the increase provided for above) is less than the
total amount of interest which would have been due hereunder if the
stated rates of interest set forth in this Agreement had at all times
been in effect, then to the extent permitted by law, the Borrower shall
pay to the Agent an amount equal to the difference between the amount of
interest paid and the amount of interest which would have been paid if
the Highest Lawful Rate had at all times been in effect.
Notwithstanding the foregoing, it is the intention of the Lenders and
the Borrower to conform strictly to any applicable usury laws.
Accordingly, if any Lender contracts for, charges, or receives any
consideration which constitutes interest in excess of the Highest Lawful
Rate, then any such excess shall be canceled automatically and, if
previously paid, shall at such Lender's option be applied to the
outstanding amount of the Loans made hereunder or be refunded to the
Borrower. As used in this paragraph, the term "Highest Lawful Rate"
means the maximum lawful interest rate, if any, that at any time or from
time to time may be contracted for, charged, or received under the laws
applicable to such Lender which are presently in effect or, to the
extent allowed by law, under such applicable laws which may hereafter be
in effect and which allow a higher maximum non-usurious interest rate
than applicable laws now allow.
11.16 Confidentiality. Except as provided in Section 7.01(f) hereof,
each Lender shall hold all Confidential Information obtained pursuant to
the requirements of this Agreement in accordance with its customary
procedures for handling confidential information of this nature but may,
in any event, make disclosures of such Confidential Information (i)
reasonably required in connection with the contemplated transfer or
assignment of any of the Loans or Participations, (ii) to such Lender's
affiliates and its officers, directors, employees, agents, counsels,
accountants, and advisors and then only on a confidential and a "need to
know" basis, (iii) as required by any law, rule or regulation or by
judicial process, (iv) to the Agent and other Lenders, or (v) as
requested or required by any state, federal or foreign authority or
examiner regulating banks or banking; provided that, unless specifically
prohibited by applicable law or court order, each Lender shall notify
the Borrower of any subpoena issued thereto by any Governmental
Authority for disclosure of such information.
11.17 Status of Debt. Each party hereto agrees that the Revolving
Credit Facility, the Letter of Credit Facility, all Swing Line Loans and
all Outstandings are hereby
(i) specifically designated as "Significant Senior
Indebtedness," "Parent Senior Indebtedness" and as "Significant Parent
Senior Indebtedness" for all purposes of the Parisian Indenture and
are to be afforded all rights of, and terms applicable to, Significant
Senior Indebtedness and Significant Parent Senior Indebtedness, Parent
Senior Indebtedness under the terms of the Parisian Indenture,
including without limitation subordination of the Parisian Senior
Subordinated Notes and of the Parent Guarantee (as defined in the
Parisian Indenture); and
(ii) determined to be "Senior Indebtedness" as defined in and for
all purposes of the Convertible Subordinated Debentures Indenture and
the Junior Subordinated Debentures and are to be afforded all rights
of, and terms applicable to, Senior Indebtedness under the terms of
the Convertible Subordinated Debentures Indenture and the Junior
Subordinated Debentures, including without limitation subordination
of the Convertible Subordinated Debentures and the Junior Subordinated
Debentures.
11.18 Simultaneous Closings. For all purposes herein, the closing of
the Parisian Acquisition and the closing of this Agreement shall be
deemed to occur simultaneously on the Closing Date and Parisian shall be
deemed to be a Subsidiary of the Borrower for all purposes of this
Agreement and each other Loan Document.
11.19 Waiver of Jury Trial. EXCEPT AS PROHIBITED BY LAW, EACH PARTY
HERETO HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE LOAN DOCUMENTS.
[Signatures on following pages.]
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of
the day and year first above written.
PROFFITT'S, INC.
By:
Title:
ATTEST:
_________________________
_______ Secretary
(Seal)
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION,
as Agent for the Lenders
By:
Title: Vice President
<PAGE>
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION
By:
Title: _______ Vice President
Lending Office:
NationsBank of Texas,
National Association
NationsBank Plaza
901 Main Street
67th Floor
Dallas, Texas 75202
Attention: Ms. Renitta Cummings,
Agency Services
Telephone: (214) 508-2133
Telefacsimile: (214) 508-2515
Wire Transfer Instructions:
NationsBank of Texas,
National Association
ABA# 111000025
Reference: Proffitt's, Inc.
Account No.: 1292000883
Attention: Credit Services
NATIONAL CITY BANK, KENTUCKY
By:
Title: __________ Vice President
Lending Office:
National City Bank, Kentucky
101 South 5th Street
8th Floor
Louisville, Kentucky 40202
Attention: Mr. Kevin L. Anderson,
Vice President
Telephone: (502) 581-7894
Telefacsimile: (502) 581-5122
Wire Transfer Instructions:
National City Bank, Kentucky
ABA# 083-000-056
Reference: Proffitt's, Inc.
Account No.:
Attention: Ms. Mary Vincent,
Commercial Loan Operations
SOUTHTRUST BANK OF ALABAMA, N.A.
By:
Title:
Lending Office:
SouthTrust Bank of Alabama, N.A.
420 N. 20th Street
11th Floor
Regional Banking
Birmingham, Alabama 35203
Attention: Mr. Larry Murff,
Asst. Vice President
Telephone: (205) 254-5761
Telefacsimile: (205) 254-5022
Wire Transfer Instructions:
SouthTrust Bank of Alabama, N.A.
ABA# 062000080
Reference: Proffitt's, Inc.
Attention: Ms. Kelly Liner
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK
Cayman Islands Branch
By:
Title:
By:
Title:
Lending Office:
DG Bank
c/o DG Atlanta
1 Peachtree St.
303 Peachtree Ctr.
Suite 2900
Atlanta, Georgia 30308
Attention: Mr. Bill Bartlett
Telephone: (404) 524-3966
Telefacsimile: (404) 524-4006
Wire Transfer Instructions:
DG Bank
via CHIPS SYSTEM
ABA# 845
Reference: Proffitt's, Inc.
Routing/Account No.: 026008455
Attention: Mr. Bill Bartlett
DEPOSIT GUARANTY NATIONAL BANK
By:
Title: Senior Vice President
Lending Office:
Deposit Guaranty National Bank
210 East Capitol St.
Jackson, Mississippi 39201
Attention: Mr. Larry C. Ratzlaff
Telephone: (601) 968-4749
Telefacsimile: (601) 354-8315
Wire Transfer Instructions:
Deposit Guaranty National Bank
ABA# 065305436
Account No.: 7171416
Reference: Proffitt's, Inc.
Attention: Ms. Addie Bates
Loan Closing
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By:
Title: Senior Vice President
Lending Office:
First Tennessee Bank National
Association
165 Madison Ave.
6th Floor Main Office
Memphis, Tennessee 38103
Attention: Mr. Jim Chapman
Telephone: (901) 523-4273
Telefacsimile: (901) 523-4633
Wire Transfer Instructions:
First Tennessee Bank National Association
ABA# 084000026
Account No.: 1141746870
Reference: Proffitt's, Inc.
Attention: Ms. Deborah Johnson
ext.4188
THE BANK OF NOVA SCOTIA
By:
Title: Relationship Manager
Lending Office:
The Bank of Nova Scotia
600 Peachtree Street
Suite 2700
Atlanta, Georgia 30308
Attention: Mr. Patrick M. Brown
Telephone: (404) 877-1506
Telefacsimile: (404) 888-8998
Wire Transfer Instructions:
The Bank of Nova Scotia
ABA# 026002532
Account No.: 0606634
Reference: Proffitt's, Inc.
Attention: Atlanta Agency
AMSOUTH BANK OF ALABAMA
By:
Title: Vice President
Lending Office:
AmSouth Bank of Alabama
1900 5th Avenue North
7th Floor
Birmingham, Alabama 35288
Attention: Ms. Therese Sheehy
Telephone: (205) 326-1506
Telefacsimile: (205) 583-4436
Wire Transfer Instructions:
AmSouth Bank of Alabama
ABA# 062000019
Account No.: Corporate Clearing
acct #001102450400100
Reference: Proffitt's, Inc.
Attention: Wendy Campbell
BANK OF AMERICA ILLINOIS
By:
Title: Vice President
Address for Notices:
Bank of America Illinois
1230 Peachtree Street
Suite 3800
Atlanta, Georgia 30309
Attention: Ms. Michelle Kacergis
Telephone: (404) 249-6906
Telefacsimile: (404) 249-6938
Lending Office:
Bank of America Illinois
231 S. LaSalle St., 200/9
Chicago, IL 60697
Telephone: (312) 828-6568
Telefacsimile: (312) 974-9626
Wire Transfer Instructions:
Bank of America Illinois
ABA# 071000039
Account No.: 47-03421
Reference: Proffitt's, Inc.
Attention: BAI Interbank Account
HIBERNIA NATIONAL BANK
By:
Title: National Accounts Representative
Lending Office:
Hibernia National Bank
313 Carondelet Street
New Orleans, Louisiana 70130
Attention: Ms. Katharine Gonzalez
Telephone: (504) 533-3044
Telefacsimile: (504) 533-5344
Wire Transfer Instructions:
Hibernia National Bank
ABA# 065000090
Account No.:0520-36615
Reference: Proffitt's, Inc.
Attention: Pamela Madere
FIRST AMERICAN NATIONAL BANK
By:
Title: Vice President
Lending Office:
First American National Bank
6000 Poplar Ave.
Suite 300
Memphis, Tennessee
Attention: Mr.William R. Stutts
Telephone: (901) 762-5675
Telefacsimile: (901) 762-5665
Wire Transfer Instructions:
First American National Bank
ABA# 064000017
Account No.:0901256
Reference: Proffitt's, Inc.
Attention: Frenisa Joy
NORWEST BANK IOWA, N.A.
By:
Title: Vice President
Lending Office:
Norwest Bank Iowa, N.A.
M.S. 4019
7th & Walnut
Des Moines, Iowa 50309
Attention: Mr. Douglas C. Barclay
Telephone: (515) 245-3016
Telefacsimile: (515) 245-3128
Wire Transfer Instructions:
Norwest Bank Iowa, N.A.
ABA# 073000228
Account No.:____________
Reference: Proffitt's, Inc.
Attention: Tammy Gregory or Teresa Harper
THE FIRST NATIONAL BANK OF CHICAGO
By:
Title: Managing Director
Lending Office:
The First National Bank of Chicago
One First National Plaza
Suite 0086
Chicago, Illinois 60670
Attention: Mr. Paul Rigby
Telephone: (312) 732-6132
Telefacsimile: (312) 732-8587
Wire Transfer Instructions:
The First National Bank of Chicago
ABA# 071000013
Account No.:7521-7653
Reference: Proffitt's, Inc.
Attention: Karen Hannusch
CREDIT LYONNAIS ATLANTA AGENCY
By:
Title: Vice President
Credit Lyonnais Atlanta Agency
303 Peachtree St., NE
Suite 4400
Atlanta, Georgia 30308
Attention: Christina Earnshaw
Telephone: (404) 524-3700
Telefacsimile: (404) 584-5249
CREDIT LYONNAIS NEW YORK BRANCH
By:_______________________________
Title: Senior Vice President
Credit Lyonnais New York Branch
1301 Ave. of the Americas
18th Floor
New York, New York 10019
Attention: Robert Ivosevich
Telephone: (212) 261-7130
Telefacsimile: (212) 459-3360
Wire Transfer Instructions:
Credit Lyonnais
ABA#0260-0807-3
Account No.: 01-24173.0001.00
Reference: Proffitt's, Inc.
Attention: Loan Servicing
EXHIBIT A
Revolving Credit Commitments
Lender Revolving Credit Commitment
NationsBank of Texas, National Association $ 35,000,000
Bank of America Illinois $ 23,000,000
The Bank of Nova Scotia $ 23,000,000
Credit Lyonnais Atlanta Agency $ 23,000,000
First Tennessee Bank National Association $ 23,000,000
Hibernia National Bank $ 23,000,000
SouthTrust Bank of Alabama, N.A. $ 23,000,000
AmSouth Bank of Alabama $ 20,000,000
Deposit Guaranty National Bank $ 14,000,000
DG Bank Deutsche Genossenschaftsbank
Cayman Islands Branch $ 14,000,000
The First National Bank of Chicago $ 14,000,000
National City Bank, Kentucky $ 14,000,000
Norwest Bank Iowa, N.A. $ 14,000,000
First American National Bank $ 12,000,000
Total Revolving Credit Commitment $ 275,000,000
